1.This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section 4.01(a)(vi) of the Credit Agreement, dated as of February 17, 2017 <sup> , (the Credit Agreement) by and among (i) Keane Group Holdings , LLC <sup> , a Delaware limited liability company (the Lead Borrower), (ii) the Borrowers party thereto from time to time (individually, a Borrower and, together with the Lead Borrower, the Borrowers), (iii) Keane Group, Inc., a Delaware corporation, (iv) the guarantors party thereto, (v) Bank of America, N.A. , as administrative agent (in such capacity, the Administrative Agent) for its own benefit and the benefit of the other Credit Parties referred to therein, (vi) Bank of America, N.A. , as collateral agent (in such capacity, the Collateral Agent) for its own benefit and the benefit of the other Credit Parties, (vii) the L/C Issuers party thereto, and (viii) the lenders from time to time party thereto (individually, a Lender and, collectively, the Lenders). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.

1 . This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section 4 . 01 ( a ) ( vi ) of the Credit Agreement , dated as of February 17 , 2017 < sup > , ( the Credit Agreement ) by and among ( i ) Keane Group Holdings , LLC < sup > , a Delaware limited liability company ( the Lead Borrower ) , ( ii ) the Borrowers party thereto from time to time ( individually , a Borrower and , together with the Lead Borrower , the Borrowers ) , ( iii ) Keane Group , Inc . , a Delaware corporation , ( iv ) the guarantors party thereto , ( v ) Bank of America , N . A . , as administrative agent ( in such capacity , the Administrative Agent ) for its own benefit and the benefit of the other Credit Parties referred to therein , ( vi ) Bank of America , N . A . , as collateral agent ( in such capacity , the Collateral Agent ) for its own benefit and the benefit of the other Credit Parties , ( vii ) the L / C Issuers party thereto , and ( viii ) the lenders from time to time party thereto ( individually , a Lender and , collectively , the Lenders ) . Unless otherwise defined herein , capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement .


Reference is made to the Credit Agreement dated as of February 17, 2017 <sup> (as amended, modified, supplemented or restated hereafter, the Credit Agreement) by and among (i) Keane Group Holdings , LLC <sup> , a Delaware limited liability company (the Lead Borrower), (ii) the Borrowers party thereto from time to time (individually, a Borrower and, together with the Lead Borrower, the Borrowers), (iii)Keane Group, Inc., a Delaware corporation, (iv) the guarantors party thereto, (v) Bank of America, N.A. , as administrative agent (in such capacity, the Administrative Agent) for its own benefit and the benefit of the other Credit Parties referred to therein, (vi) Bank of America, N.A. , as collateral agent for its own benefit and the benefit of the other Credit Parties, (vii) the L/C Issuers party thereto, and (viii) the lenders from time to time party thereto (individually, a Lender and, collectively, the Lenders). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.

Reference is made to the Credit Agreement dated as of February 17 , 2017 < sup > ( as amended , modified , supplemented or restated hereafter , the Credit Agreement ) by and among ( i ) Keane Group Holdings , LLC < sup > , a Delaware limited liability company ( the Lead Borrower ) , ( ii ) the Borrowers party thereto from time to time ( individually , a Borrower and , together with the Lead Borrower , the Borrowers ) , ( iii ) Keane Group , Inc . , a Delaware corporation , ( iv ) the guarantors party thereto , ( v ) Bank of America , N . A . , as administrative agent ( in such capacity , the Administrative Agent ) for its own benefit and the benefit of the other Credit Parties referred to therein , ( vi ) Bank of America , N . A . , as collateral agent for its own benefit and the benefit of the other Credit Parties , ( vii ) the L / C Issuers party thereto , and ( viii ) the lenders from time to time party thereto ( individually , a Lender and , collectively , the Lenders ) . Unless otherwise defined herein , capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement .


FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Treated As Partnerships For

FORM OF UNITED STATES TAX COMPLIANCE CERTIFICATE ( For Foreign Participants That Are Not Treated As Partnerships For


EX-10.1 2 exhibit101-creditagreement.htm CREDIT AGREEMENT DATED FEBRUARY 3, 2017


CREDIT AGREEMENT among CALPINE CORPORATION , as Borrower and THE LENDERS PARTY HERETO, and MORGAN STANLEY SENIOR FUNDING, INC. , as Administrative Agent and MUFG UNION BANK , N.A., as Collateral Agent Dated as of February 3, 2017

CREDIT AGREEMENT among CALPINE CORPORATION , as Borrower and THE LENDERS PARTY HERETO , and MORGAN STANLEY SENIOR FUNDING , INC . , as Administrative Agent and MUFG UNION BANK , N . A . , as Collateral Agent Dated as of February 3 , 2017


U.S.A. Patriot Act < br/>

U . S . A . Patriot Act & lt ; br / & gt ;


Applicable Margin: a percentage per annum equal to in the case of Term Loans maintained as (i) Base Rate Loans, 0.75% and (ii) Eurodollar Loans, 1.75% .

Applicable Margin : a percentage per annum equal to in the case of Term Loans maintained as ( i ) Base Rate Loans , 0 . 75 % and ( ii ) Eurodollar Loans , 1 . 75 % .


Code: the Internal Revenue Code of 1986 , as amended from time to time.

Code : the Internal Revenue Code of 1986 , as amended from time to time .


ERISA: the Employee Retirement Income Security Act of 1974 , as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA : the Employee Retirement Income Security Act of 1974 , as amended from time to time , and the regulations promulgated and rulings issued thereunder .


Fee Letter: that certain administrative agent fee letter dated February 3, 2017 among the Borrower and the Joint Administrative Agent.

Fee Letter : that certain administrative agent fee letter dated February 3 , 2017 among the Borrower and the Joint Administrative Agent .


Flood Insurance Laws: collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 ) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Flood Insurance Laws : collectively , ( i ) National Flood Insurance Reform Act of 1994 ( which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 ) as now or hereafter in effect or any successor statute thereto , ( ii ) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and ( iii ) the Biggert-Waters Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto .


(26) Liens securing (a) Capital Lease Obligations and (b) other Indebtedness of the Borrower or any of its Subsidiaries incurred to finance all or any part of the acquisition, lease, construction, installation or improvement of any assets, and any refinancing, replacement, refunding, renewal or extension of any such Indebtedness without any increase thereof, in an aggregate amount, together with all other Capital Lease Obligations and Indebtedness secured by Liens pursuant to this clause (26) not to exceed $150,000,000 at any one time outstanding, so long as (i) such Liens are initially created or arise prior to or within the 90 days after the completion of such acquisition, lease, construction, installation or improvement and (ii) such Liens do not attach to assets of the Borrower or any Subsidiary other than the relevant assets acquired, leased, constructed, installed or improved;

( 26 ) Liens securing ( a ) Capital Lease Obligations and ( b ) other Indebtedness of the Borrower or any of its Subsidiaries incurred to finance all or any part of the acquisition , lease , construction , installation or improvement of any assets , and any refinancing , replacement , refunding , renewal or extension of any such Indebtedness without any increase thereof , in an aggregate amount , together with all other Capital Lease Obligations and Indebtedness secured by Liens pursuant to this clause ( 26 ) not to exceed $ 150 , 000 , 000 at any one time outstanding , so long as ( i ) such Liens are initially created or arise prior to or within the 90 days after the completion of such acquisition , lease , construction , installation or improvement and ( ii ) such Liens do not attach to assets of the Borrower or any Subsidiary other than the relevant assets acquired , leased , constructed , installed or improved ;


Rating Agencies: (1) each of Moodys and S&P and (2) if any of Moodys or S&P ceases to rate the Loans or fails to make a rating of the Term Loans publicly available for reasons outside of the Borrowers control, a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Borrower as a replacement agency for Moodys or S&P, or both of them, as the case may be.

Rating Agencies : ( 1 ) each of Moodys and S & amp ; P and ( 2 ) if any of Moodys or S & amp ; P ceases to rate the Loans or fails to make a rating of the Term Loans publicly available for reasons outside of the Borrowers control , a nationally recognized statistical rating organization within the meaning of Rule 15c3-1 ( c ) ( 2 ) ( vi ) ( F ) under the Exchange Act selected by the Borrower as a replacement agency for Moodys or S & amp ; P , or both of them , as the case may be .


3.16. Investment Company Act; Other Regulations. No Loan Party is an investment company, or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940 , as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board of Governors) that limits its ability to incur Indebtedness under this Agreement and the other Loan Documents.

3 . 16 . Investment Company Act ; Other Regulations . No Loan Party is an investment company , or a company controlled by an investment company , within the meaning of the Investment Company Act of 1940 , as amended . No Loan Party is subject to regulation under any Requirement of Law ( other than Regulation X of the Board of Governors ) that limits its ability to incur Indebtedness under this Agreement and the other Loan Documents .


(q) PATRIOT Act. The Borrower shall have delivered at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent and the Lenders that they reasonably determine is required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.< br/>

( q ) PATRIOT Act . The Borrower shall have delivered at least three ( 3 ) Business Days prior to the Closing Date , all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least ten ( 10 ) Business Days prior to the Closing Date by the Administrative Agent and the Lenders that they reasonably determine is required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations , including without limitation the PATRIOT Act . & lt ; br / & gt ;


(ii) quarterly reports of the Borrower containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q under the Exchange Act if the Borrower had been a reporting company under the Exchange Act , including (A) Managements Discussion and Analysis of Financial Condition and Results of Operations and (B) unaudited quarterly financial statements prepared in accordance with GAAP as in effect from time to time and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); and

( ii ) quarterly reports of the Borrower containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q under the Exchange Act if the Borrower had been a reporting company under the Exchange Act , including ( A ) Managements Discussion and Analysis of Financial Condition and Results of Operations and ( B ) unaudited quarterly financial statements prepared in accordance with GAAP as in effect from time to time and reviewed pursuant to Statement on Auditing Standards No . 100 ( or any successor provision ) ; and


(a) The Borrower shall not, and shall not permit any of the Guarantors to, directly or indirectly, incur Indebtedness that will constitute First Lien Debt, unless the CNTA Ratio (after giving pro forma effect to any such incurrence and the application of the net proceeds thereof) is equal to or greater than 1.66 to 1.00.< br/>

( a ) The Borrower shall not , and shall not permit any of the Guarantors to , directly or indirectly , incur Indebtedness that will constitute First Lien Debt , unless the CNTA Ratio ( after giving pro forma effect to any such incurrence and the application of the net proceeds thereof ) is equal to or greater than 1 . 66 to 1 . 00 . & lt ; br / & gt ;


Houston, TX 77002 |


Telecopier No.: 832-325-4508 | |


Telecopier No.: 713-830-8751 |


Morgan Stanley Senior Funding, Inc. |


Telecopier No.: (212) 507-6680 | |


80 Pine Street |


Telecopier No.: 212-378-2500 | The Collateral Agent:

Telecopier No . : 212-378-2500 | The Collateral Agent :


350 California St., 11th Floor |


San Francisco, CA 94014 |


Telecopier No.: 415-273-2494 | |


Arranger, the Collateral Agent, the Administrative Agent and each of their respective Affiliates, directors, officers, employees, representatives, partners and agents (each, an Indemnitee) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance, preservation of rights and administration of this Agreement, the Notes, the other Loan Documents or the use of the proceeds of the Term Loans or any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Loan Parties or any of their respective properties and the reasonable fees and expenses of one legal counsel for the Indemnitees taken as a whole in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the indemnified liabilities), provided that the Borrower shall have no obligation hereunder to any Indemnitee with respect to indemnified liabilities to the extent (x) determined by the final judgment of a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or any of such Indemnitees Related Persons, (y) resulting from a material breach by such Indemnitee or any of such Indemnitees Related Persons of its material obligations under this Agreement or the other Loan Documents or (z) related to any dispute solely among Indemnitees other than any claims against any Indemnitee in its capacity or in fulfilling its role as an Agent, an Arranger or any similar role under this Agreement and the other Loan Documents and other than any claims involving any act or omission on the part of the Borrower or its Subsidiaries; provided, further, that the Borrower shall in no event be responsible for consequential, indirect, special or punitive damages to any Indemnitee pursuant to this Section 9.5 except such consequential, indirect, special or punitive damages required to be paid by such Indemnitee in respect of any indemnified liabilities. Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. To the extent permitted by applicable law, no Loan Party nor any of their respective Subsidiaries shall assert, and each Loan Party hereby waives, on behalf of itself and its Subsidiaries, any claim against each Lender, each Arranger, each Agent and their respective affiliates, directors, officers, employees, attorneys, representatives, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Loan Party hereby waives, releases and agrees, on behalf of themselves and each of their respective Subsidiaries, not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. All amounts due under this Section 9.5 shall be payable not later than 10 days after written demand therefor. Statements payable by the Borrower pursuant to this Section 9.5 shall be submitted to the Treasurer of the Borrower (Telecopy No. 713-353-9144 ), at the address of the Borrower set forth in Section 9.2 (with copies (which shall not constitute notice) to the Associate General Counsel of the Borrower at the respective addresses set forth in Section 9.2), or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section shall survive repayment of the Term Loans and all other amounts payable hereunder.

Arranger , the Collateral Agent , the Administrative Agent and each of their respective Affiliates , directors , officers , employees , representatives , partners and agents ( each , an Indemnitee ) from and against any and all other liabilities , obligations , losses , damages , penalties , actions , judgments , suits , costs , expenses or disbursements of any kind or nature whatsoever with respect to the execution , delivery , enforcement , performance , preservation of rights and administration of this Agreement , the Notes , the other Loan Documents or the use of the proceeds of the Term Loans or any of the foregoing relating to the violation of , noncompliance with or liability under , any Environmental Law applicable to the operations of the Loan Parties or any of their respective properties and the reasonable fees and expenses of one legal counsel for the Indemnitees taken as a whole in connection with claims , actions or proceedings by any Indemnitee against any Loan Party under any Loan Document ( all the foregoing in this clause ( d ) , collectively , the indemnified liabilities ) , provided that the Borrower shall have no obligation hereunder to any Indemnitee with respect to indemnified liabilities to the extent ( x ) determined by the final judgment of a court of competent jurisdiction to have resulted from the bad faith , gross negligence or willful misconduct of such Indemnitee or any of such Indemnitees Related Persons , ( y ) resulting from a material breach by such Indemnitee or any of such Indemnitees Related Persons of its material obligations under this Agreement or the other Loan Documents or ( z ) related to any dispute solely among Indemnitees other than any claims against any Indemnitee in its capacity or in fulfilling its role as an Agent , an Arranger or any similar role under this Agreement and the other Loan Documents and other than any claims involving any act or omission on the part of the Borrower or its Subsidiaries ; provided , further , that the Borrower shall in no event be responsible for consequential , indirect , special or punitive damages to any Indemnitee pursuant to this Section 9 . 5 except such consequential , indirect , special or punitive damages required to be paid by such Indemnitee in respect of any indemnified liabilities . Without limiting the foregoing , and to the extent permitted by applicable law , the Borrower agrees not to assert and to cause its Subsidiaries not to assert , and hereby waives and agrees to cause its Subsidiaries to waive , all rights for contribution or any other rights of recovery with respect to all claims , demands , penalties , fines , liabilities , settlements , damages , costs and expenses of whatever kind or nature , under or related to Environmental Laws , that any of them might have by statute or otherwise against any Indemnitee . To the extent permitted by applicable law , no Loan Party nor any of their respective Subsidiaries shall assert , and each Loan Party hereby waives , on behalf of itself and its Subsidiaries , any claim against each Lender , each Arranger , each Agent and their respective affiliates , directors , officers , employees , attorneys , representatives , agents or sub-agents , on any theory of liability , for special , indirect , consequential or punitive damages ( as opposed to direct or actual damages ) ( whether or not the claim therefor is based on contract , tort or duty imposed by any applicable legal requirement ) arising out of , in connection with , as a result of , or in any way related to , this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein , the transactions contemplated hereby or thereby , any Term Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith , and each Loan Party hereby waives , releases and agrees , on behalf of themselves and each of their respective Subsidiaries , not to sue upon any such claim or any such damages , whether or not accrued and whether or not known or suspected to exist in its favor . All amounts due under this Section 9 . 5 shall be payable not later than 10 days after written demand therefor . Statements payable by the Borrower pursuant to this Section 9 . 5 shall be submitted to the Treasurer of the Borrower ( Telecopy No . 713-353-9144 ) , at the address of the Borrower set forth in Section 9 . 2 ( with copies ( which shall not constitute notice ) to the Associate General Counsel of the Borrower at the respective addresses set forth in Section 9 . 2 ) , or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent . The agreements in this Section shall survive repayment of the Term Loans and all other amounts payable hereunder .


9.17. U.S.A. Patriot Act . Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by each Lender and the Administrative Agent to maintain compliance with the Patriot Act.< br/>

9 . 17 . U . S . A . Patriot Act . Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act , it is required to obtain , verify and record information that identifies each Loan Party , which information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act . The Borrower shall , and shall cause each of its Subsidiaries to , provide , to the extent commercially reasonable , such information and take such actions as are reasonably requested by each Lender and the Administrative Agent to maintain compliance with the Patriot Act . & lt ; br / & gt ;


COMMITMENT AMOUNT MORGAN STANLEY SENIOR FUNDING, INC.

COMMITMENT AMOUNT MORGAN STANLEY SENIOR FUNDING , INC .


Chambers County, Texas Channel Energy Center, LLC

Chambers County , Texas Channel Energy Center , LLC


Corpus Christi, TX 78407


Nueces County, Texas Delta Energy Center, LLC

Nueces County , Texas Delta Energy Center , LLC


Contra Costa County, CA Freestone Power Generation, LLC

Contra Costa County , CA Freestone Power Generation , LLC


Geothermal power generation facility located in Lake County and Sonoma County, California Unit 20

Geothermal power generation facility located in Lake County and Sonoma County , California Unit 20


Common Name and Address Calpine Mid-Atlantic Generation, LLC (f/k/a/ Conectiv Delmarva Generation, LLC, successor by conversion to Conectiv Delmarva Generation , Inc.)

Common Name and Address Calpine Mid-Atlantic Generation , LLC ( f / k / a / Conectiv Delmarva Generation , LLC , successor by conversion to Conectiv Delmarva Generation , Inc . )


Northampton County, Pennsylvania Calpine Mid-Atlantic Generation, LLC (f/k/a/ Conectiv Delmarva Generation, LLC, successor by conversion to Conectiv Delmarva Generation , Inc.)

Northampton County , Pennsylvania Calpine Mid-Atlantic Generation , LLC ( f / k / a / Conectiv Delmarva Generation , LLC , successor by conversion to Conectiv Delmarva Generation , Inc . )


New Castle County, Delaware Calpine Mid-Atlantic Generation, LLC (f/k/a/ Conectiv Delmarva Generation, LLC, successor by conversion to Conectiv Delmarva Generation , Inc.)

New Castle County , Delaware Calpine Mid-Atlantic Generation , LLC ( f / k / a / Conectiv Delmarva Generation , LLC , successor by conversion to Conectiv Delmarva Generation , Inc . )


200 Hay Road, Wilmington, DE 19809


Common Name and Address Calpine New Jersey Generation, LLC (f/k/a/ Conectiv Atlantic Generation, LLC ).

Common Name and Address Calpine New Jersey Generation , LLC ( f / k / a / Conectiv Atlantic Generation , LLC ) .


Cumberland County, New Jersey Calpine Mid-Atlantic Generation, LLC (f/k/a/ Conectiv Delmarva Generation, LLC, successor by conversion to Conectiv Delmarva Generation , Inc.)

Cumberland County , New Jersey Calpine Mid-Atlantic Generation , LLC ( f / k / a / Conectiv Delmarva Generation , LLC , successor by conversion to Conectiv Delmarva Generation , Inc . )


Warren County, New Jersey


Somerset County, Maryland Calpine New Jersey Generation, LLC (f/k/a/ Conectiv Atlantic Generation, LLC )

Somerset County , Maryland Calpine New Jersey Generation , LLC ( f / k / a / Conectiv Atlantic Generation , LLC )


24 O.D. Natural Gas Pipeline, Claymont to Wilmington, DE

24 O . D . Natural Gas Pipeline , Claymont to Wilmington , DE


Common Name and Address Metcalf Energy Center, LLC

Common Name and Address Metcalf Energy Center , LLC


Calpine Mid-Atlantic Generation ,


Calpine Bethlehem, LLC (f/k/a


Calpine New Jersey Generation,< br/>

Calpine New Jersey Generation , & lt ; br / & gt ;


50.00% owned by Atlantic Packaging Product Ltd. Anacapa Land Company, LLC

50 . 00 % owned by Atlantic Packaging Product Ltd . Anacapa Land Company , LLC


| Auburndale Peaker Energy Center, LLC


| Big Blue River Wind Farm, LLC


| Butter Creek Energy Center, LLC


| Byron Highway Energy Center, LLC


| Calnex Holdings, LLC


| Calpine Auburndale Holdings, LLC


| Calpine Calistoga Holdings, LLC


| Calpine Fore River Energy Center, LLC

| Calpine Fore River Energy Center , LLC


| Calpine Fore River Operating Company, LLC

| Calpine Fore River Operating Company , LLC


| Calpine Gilroy 1, LLC


| Calpine Granite Holdings, LLC


| Calpine Holdings, LLC


| Calpine King City 1, LLC


| Calpine Magic Valley Pipeline, LLC


| Calpine Mexican Holdings, LLC


| Calpine Mid-Atlantic Development, LLC

| Calpine Mid-Atlantic Development , LLC


| Calpine Mid-Atlantic Energy, LLC


| Calpine Mid-Atlantic Marketing, LLC


| Calpine Mid-Atlantic Operating, LLC


| Calpine Northbrook Investors, LLC


| Calpine Northbrook Project Holdings, LLC

| Calpine Northbrook Project Holdings , LLC


| Calpine Pittsburg, LLC


| CCFC Sutter Energy, LLC


| Champion Energy Services, LLC


50.00% owned by MIT Power Canada Investment Inc. Corpus Christi Cogeneration, LLC (converted from Corpus Christi Cogeneration LP)

50 . 00 % owned by MIT Power Canada Investment Inc . Corpus Christi Cogeneration , LLC ( converted from Corpus Christi Cogeneration LP )


| Granite Ridge Operating, LLC


49.996% directly owned by MIT Power Canada LP Inc. and 0.004% indirectly owned by MIT Power Canada Investment Inc. Guadalupe Peaking Energy Center, LLC

49 . 996 % directly owned by MIT Power Canada LP Inc . and 0 . 004 % indirectly owned by MIT Power Canada Investment Inc . Guadalupe Peaking Energy Center , LLC


| Los Esteros Critical Energy Facility, LLC

| Los Esteros Critical Energy Facility , LLC


| Mankato Holdings, LLC


| Metcalf Funding, LLC


| Metcalf Holdings, LLC


| Mission Rock Energy Center, LLC


| New Steamboat Holdings, LLC


| Pioneer Valley Energy Center, LLC


Third Party Ownership (if any) Rio Hondo Energy Center, LLC

Third Party Ownership ( if any ) Rio Hondo Energy Center , LLC


| South Point Energy Center, LLC


| White Rock Wind West, LLC


UCC Filing Jurisdiction/Office Calpine Corporation

UCC Filing Jurisdiction / Office Calpine Corporation


Secretary of State of Delaware Baytown Energy Center, LLC

Secretary of State of Delaware Baytown Energy Center , LLC


Secretary of State of Delaware Calpine Administrative Services Company, Inc.

Secretary of State of Delaware Calpine Administrative Services Company , Inc .


Secretary of State of Delaware Calpine Auburndale Holdings, LLC

Secretary of State of Delaware Calpine Auburndale Holdings , LLC


Secretary of State of Delaware Calpine Calistoga Holdings, LLC

Secretary of State of Delaware Calpine Calistoga Holdings , LLC


Secretary of State of California Calpine Generating Company, LLC

Secretary of State of California Calpine Generating Company , LLC


Secretary of State of Delaware Calpine King City, LLC

Secretary of State of Delaware Calpine King City , LLC


Secretary of State of Delaware Calpine Magic Valley Pipeline, LLC

Secretary of State of Delaware Calpine Magic Valley Pipeline , LLC


Secretary of State of Delaware Calpine Mid-Atlantic Energy, LLC

Secretary of State of Delaware Calpine Mid-Atlantic Energy , LLC


Secretary of State of Delaware Calpine New Jersey Generation, LLC

Secretary of State of Delaware Calpine New Jersey Generation , LLC


Secretary of State of Delaware Calpine Northbrook Investors, LLC

Secretary of State of Delaware Calpine Northbrook Investors , LLC


Secretary of State of Delaware Calpine Northbrook Project Holdings, LLC

Secretary of State of Delaware Calpine Northbrook Project Holdings , LLC


Secretary of State of Delaware Hillabee Energy Center, LLC

Secretary of State of Delaware Hillabee Energy Center , LLC


Secretary of State of Delaware Metcalf Energy Center, LLC

Secretary of State of Delaware Metcalf Energy Center , LLC


Secretary of State of Delaware Pastoria Energy Center, LLC

Secretary of State of Delaware Pastoria Energy Center , LLC


Secretary of State of Delaware Pine Bluff Energy, LLC

Secretary of State of Delaware Pine Bluff Energy , LLC


Secretary of State of Wisconsin South Point Energy Center, LLC

Secretary of State of Wisconsin South Point Energy Center , LLC


Secretary of State of Delaware South Point Holdings, LLC

Secretary of State of Delaware South Point Holdings , LLC


Freestone Power Generation, LLC


Contra Costa County, California


Gas fired power generation facility located at 2346 Clearview Road, Cambridge, WI 53523

Gas fired power generation facility located at 2346 Clearview Road , Cambridge , WI 53523


Calpine Mid-Atlantic Generation, LLC


Delaware City Combustion Turbine facility located at 1812 River Road, New Castle, DE 19720

Delaware City Combustion Turbine facility located at 1812 River Road , New Castle , DE 19720


Bethlehem Power Plant located at 2245 Applebutter Road Bethlehem, PA 18015

Bethlehem Power Plant located at 2245 Applebutter Road Bethlehem , PA 18015


Gas fired power generation facilities known as Hay Road and Edge Moor and located respectively at 198 and 200 Hay Road Wilmington, DE 19809

Gas fired power generation facilities known as Hay Road and Edge Moor and located respectively at 198 and 200 Hay Road Wilmington , DE 19809


Carlls Corner Combustion Turbine located at 1623 S. Burlington Road, Bridgeton, NJ 08302

Carlls Corner Combustion Turbine located at 1623 S . Burlington Road , Bridgeton , NJ 08302


Gloucester County, New Jersey


Sherman Combustion Turbine located at 2600 S. Orchard Road,< br/>

Sherman Combustion Turbine located at 2600 S . Orchard Road , & lt ; br / & gt ;


7.Attached hereto as Exhibit B are true and complete copies of each limited liability company agreement of each of Calpine Gilroy 1, LLC, Calpine Texas Pipeline GP, LLC and Calpine Texas Pipeline LP, LLC, each as in effect on the date hereof and at all times since the resolutions referred to in paragraph 1 above were adopted. There have been no amendments, modifications or supplements to the limited liability company agreement of each of Calpine Magic Valley Pipeline , LLC and Calpine MVP, LLC since December 1, 2016.

7 . Attached hereto as Exhibit B are true and complete copies of each limited liability company agreement of each of Calpine Gilroy 1 , LLC , Calpine Texas Pipeline GP , LLC and Calpine Texas Pipeline LP , LLC , each as in effect on the date hereof and at all times since the resolutions referred to in paragraph 1 above were adopted . There have been no amendments , modifications or supplements to the limited liability company agreement of each of Calpine Magic Valley Pipeline , LLC and Calpine MVP , LLC since December 1 , 2016 .


[Limited Liability Company Agreement of each of Calpine Gilroy 1, LLC, Calpine Texas Pipeline GP, LLC and Calpine Texas Pipeline LP, LLC ]

[ Limited Liability Company Agreement of each of Calpine Gilroy 1 , LLC , Calpine Texas Pipeline GP , LLC and Calpine Texas Pipeline LP , LLC ]


Reference is made to the Credit Agreement dated as of February 3, 2017 (as amended and in effect on the date hereof, the Credit Agreement; capitalized terms not defined herein shall have the meanings as defined in the Credit Agreement), among the undersigned, as Borrower, the Lenders named therein, Morgan Stanley Senior Funding , Inc., as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Pursuant to Section 2.2 of the Credit Agreement, the Borrower hereby requests a Borrowing of the Term Loans under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowing:

Reference is made to the Credit Agreement dated as of February 3 , 2017 ( as amended and in effect on the date hereof , the Credit Agreement ; capitalized terms not defined herein shall have the meanings as defined in the Credit Agreement ) , among the undersigned , as Borrower , the Lenders named therein , Morgan Stanley Senior Funding , Inc . , as Administrative Agent and MUFG Union Bank , N . A . , as Collateral Agent . Pursuant to Section 2 . 2 of the Credit Agreement , the Borrower hereby requests a Borrowing of the Term Loans under the Credit Agreement , and in that connection the Borrower specifies the following information with respect to such Borrowing :


--- | | CALPINE CORPORATION |


Reference is hereby made to the Credit Agreement, dated as of February 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Calpine Corporation (the Borrower), the Lenders party thereto, Morgan Stanley Senior Funding , Inc., as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Unless otherwise defined herein, capitalized terms are used herein as defined in the Credit Agreement.

Reference is hereby made to the Credit Agreement , dated as of February 3 , 2017 ( as amended , restated , amended and restated , supplemented or otherwise modified from time to time , the Credit Agreement ) , among Calpine Corporation ( the Borrower ) , the Lenders party thereto , Morgan Stanley Senior Funding , Inc . , as Administrative Agent and MUFG Union Bank , N . A . , as Collateral Agent . Unless otherwise defined herein , capitalized terms are used herein as defined in the Credit Agreement .


among Calpine Corporation (the Borrower),

among Calpine Corporation ( the Borrower ) ,


the Lenders party thereto, Morgan Stanley Senior Funding, Inc. as administrative agent and

the Lenders party thereto , Morgan Stanley Senior Funding , Inc . as administrative agent and


Reference is made to the CREDIT AGREEMENT , dated as of February 3, 2017 (the Agreement), among CALPINE CORPORATION , a Delaware corporation (the Borrower), MORGAN STANLEY SENIOR FUNDING, INC. , , as administrative agent (in such capacity and including any successors in such capacity, the Administrative Agent), MUFG UNION BANK , N.A., as collateral agent (in such capacity and including any successors in such capacity, the Collateral Agent and together with the Administrative Agent, the Agents), and each of the financial institutions from time to time party hereto (collectively, the Lenders). Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Agreement.

Reference is made to the CREDIT AGREEMENT , dated as of February 3 , 2017 ( the Agreement ) , among CALPINE CORPORATION , a Delaware corporation ( the Borrower ) , MORGAN STANLEY SENIOR FUNDING , INC . , , as administrative agent ( in such capacity and including any successors in such capacity , the Administrative Agent ) , MUFG UNION BANK , N . A . , as collateral agent ( in such capacity and including any successors in such capacity , the Collateral Agent and together with the Administrative Agent , the Agents ) , and each of the financial institutions from time to time party hereto ( collectively , the Lenders ) . Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Agreement .


Pursuant to the provisions of Section 2.19(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither the undersigned nor any of its applicable direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986 , as amended, (the Code), (iv) none of its applicable direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (v) none of its applicable direct or indirect partners/members is a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with the a United States trade or business conducted by the undersigned or its applicable direct or indirect partners/members.

Pursuant to the provisions of Section 2 . 19 ( e ) of the Agreement , the undersigned hereby certifies that ( i ) it is the sole record owner of the Loan ( s ) ( as well as any Note ( s ) evidencing such Loan ( s ) ) in respect of which it is providing this certificate , ( ii ) its direct or indirect partners / members are the sole beneficial owners of such Loan ( s ) ( as well as any Note ( s ) evidencing such Loan ( s ) ) , ( iii ) neither the undersigned nor any of its applicable direct or indirect partners / members is a bank within the meaning of Section 881 ( c ) ( 3 ) ( A ) of the Internal Revenue Code of 1986 , as amended , ( the Code ) , ( iv ) none of its applicable direct or indirect partners / members is a ten percent shareholder of the Borrower within the meaning of Code Section 881 ( c ) ( 3 ) ( B ) , ( v ) none of its applicable direct or indirect partners / members is a controlled foreign corporation described in Section 881 ( c ) ( 3 ) ( C ) of the Code , and ( vi ) no payments in connection with any Loan Document are effectively connected with the a United States trade or business conducted by the undersigned or its applicable direct or indirect partners / members .


Pursuant to the provisions of Section 2.19(e) and Section 9.6(c) of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986 , as amended, (the Code), (iii) it is not a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (iv) it is not a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned.

Pursuant to the provisions of Section 2 . 19 ( e ) and Section 9 . 6 ( c ) of the Agreement , the undersigned hereby certifies that ( i ) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate , ( ii ) it is not a bank within the meaning of Section 881 ( c ) ( 3 ) ( A ) of the Internal Revenue Code of 1986 , as amended , ( the Code ) , ( iii ) it is not a ten percent shareholder of the Borrower within the meaning of Code Section 881 ( c ) ( 3 ) ( B ) , ( iv ) it is not a controlled foreign corporation described in Section 881 ( c ) ( 3 ) ( C ) of the Code , and ( v ) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned .


Pursuant to the provisions of Section 2.19(e) and Section 9.6(c) of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its applicable direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986 , as amended, (the Code), (iv) none of its applicable direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (v) none of its applicable direct or indirect partners/members is a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned or its applicable direct or indirect partners/members.

Pursuant to the provisions of Section 2 . 19 ( e ) and Section 9 . 6 ( c ) of the Agreement , the undersigned hereby certifies that ( i ) it is the sole record owner of the participation in respect of which it is providing this certificate , ( ii ) its direct or indirect partners / members are the sole beneficial owners of such participation , ( iii ) neither the undersigned nor any of its applicable direct or indirect partners / members is a bank within the meaning of Section 881 ( c ) ( 3 ) ( A ) of the Internal Revenue Code of 1986 , as amended , ( the Code ) , ( iv ) none of its applicable direct or indirect partners / members is a ten percent shareholder of the Borrower within the meaning of Code Section 881 ( c ) ( 3 ) ( B ) , ( v ) none of its applicable direct or indirect partners / members is a controlled foreign corporation described in Section 881 ( c ) ( 3 ) ( C ) of the Code , and ( vi ) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned or its applicable direct or indirect partners / members .


Reference is made to the Credit Agreement, dated as of February 3, 2017 (the Credit Agreement; capitalized terms not defined herein shall have the meanings as defined in the Credit Agreement), among Calpine Corporation (the Borrower), the Lenders party thereto, Morgan Stanley Senior Funding, Inc. (MSSF), as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Pursuant to Section 2.15 of the Credit Agreement, the undersigned duly authorized officer hereby requests to [continue][convert] a Borrowing under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowing:

Reference is made to the Credit Agreement , dated as of February 3 , 2017 ( the Credit Agreement ; capitalized terms not defined herein shall have the meanings as defined in the Credit Agreement ) , among Calpine Corporation ( the Borrower ) , the Lenders party thereto , Morgan Stanley Senior Funding , Inc . ( MSSF ) , as Administrative Agent and MUFG Union Bank , N . A . , as Collateral Agent . Pursuant to Section 2 . 15 of the Credit Agreement , the undersigned duly authorized officer hereby requests to [ continue ] [ convert ] a Borrowing under the Credit Agreement , and in that connection the Borrower specifies the following information with respect to such Borrowing :


| CALPINE CORPORATION |


The undersigned, Morgan Stanley Senior Funding, Inc. (MSSF), refers to the Credit Agreement, dated as of February 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Calpine Corporation (the Borrower), the Lenders party thereto, MSSF, as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. The Administrative Agent hereby gives notice of a prepayment of Term Loans to be made by the Borrower pursuant to Section 2.13(a) of the Credit Agreement of the prepayment amount set forth below. Amounts applied to prepay the Term Loans shall be applied first to the Base Rate Loans then to the Eurodollar Loans held by you. The portion of the prepayment amount to be allocated to the Term Loan held by you and the date on which such prepayment will be made to you are set forth below:

The undersigned , Morgan Stanley Senior Funding , Inc . ( MSSF ) , refers to the Credit Agreement , dated as of February 3 , 2017 ( as amended , restated , amended and restated , supplemented or otherwise modified from time to time , the Credit Agreement ) , among Calpine Corporation ( the Borrower ) , the Lenders party thereto , MSSF , as Administrative Agent and MUFG Union Bank , N . A . , as Collateral Agent . Unless otherwise defined herein , terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement . The Administrative Agent hereby gives notice of a prepayment of Term Loans to be made by the Borrower pursuant to Section 2 . 13 ( a ) of the Credit Agreement of the prepayment amount set forth below . Amounts applied to prepay the Term Loans shall be applied first to the Base Rate Loans then to the Eurodollar Loans held by you . The portion of the prepayment amount to be allocated to the Term Loan held by you and the date on which such prepayment will be made to you are set forth below :


--- | | MORGAN STANLEY SENIOR FUNDING, INC., |

- - - | | MORGAN STANLEY SENIOR FUNDING , INC . , |


(i) Initial Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, on the Initial Closing Date (as defined below), a principal amount of Offered Notes (the Initial Notes) as is set forth opposite the Buyers name in column (3) on the Schedule of Buyers. The initial closing hereunder (the Initial Closing) shall take place at 10:00 a.m., New York City time, on or prior to January 26, 2017 (the Initial Closing Date) after notification of satisfaction (or waiver) of the conditions to the Initial Closing set forth in Sections 5 and 6 hereof at the offices of Troutman Sanders LLP, 875 Third Avenue, New York, New York 10022 or such other location as is mutually agreed by the Company and the Buyers.

( i ) Initial Closing . Subject to the satisfaction ( or waiver ) of the conditions set forth in Sections 6 and 7 below , the Company shall issue and sell to the Buyer , and the Buyer agrees to purchase from the Company , on the Initial Closing Date ( as defined below ) , a principal amount of Offered Notes ( the Initial Notes ) as is set forth opposite the Buyers name in column ( 3 ) on the Schedule of Buyers . The initial closing hereunder ( the Initial Closing ) shall take place at 10 : 00 a . m . , New York City time , on or prior to January 26 , 2017 ( the Initial Closing Date ) after notification of satisfaction ( or waiver ) of the conditions to the Initial Closing set forth in Sections 5 and 6 hereof at the offices of Troutman Sanders LLP , 875 Third Avenue , New York , New York 10022 or such other location as is mutually agreed by the Company and the Buyers .


(m) Certain Trading Activities. The Buyer has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Buyer, engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Companys securities) during the period commencing as of the time that the Buyer was first contacted regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this Agreement by the Buyer (it being understood and agreed that for all purposes of this Agreement, and, without implication that the contrary would otherwise be true, that neither transactions nor purchases nor sales shall include the location and/or reservation of borrowable shares of Common Stock). Notwithstanding the foregoing, in the case that the Buyer is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Buyers assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Buyers assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Short Sales means all short sales as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934 , as amended (the 1934 Act ).< br/>

( m ) Certain Trading Activities . The Buyer has not directly or indirectly , nor has any Person acting on behalf of or pursuant to any understanding with the Buyer , engaged in any transactions in the securities of the Company ( including , without limitation , any Short Sales ( as defined below ) involving the Companys securities ) during the period commencing as of the time that the Buyer was first contacted regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this Agreement by the Buyer ( it being understood and agreed that for all purposes of this Agreement , and , without implication that the contrary would otherwise be true , that neither transactions nor purchases nor sales shall include the location and / or reservation of borrowable shares of Common Stock ) . Notwithstanding the foregoing , in the case that the Buyer is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Buyers assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Buyers assets , the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement . Short Sales means all short sales as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934 , as amended ( the 1934 Act ) . & lt ; br / & gt ;


(k) SEC Documents; Financial Statements. Except as disclosed in Schedule 3(k), since January 1, 2014, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act ( all of the foregoing filed prior to the date hereof, and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the SEC Documents). The Company has delivered to the Buyers or their respective representatives true, correct and complete copies of the SEC Documents not available on the EDGAR system. As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved (GAAP) (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents, including, without limitation, information referred to in Section 2(d) of this Agreement or in the disclosure schedules to this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

( k ) SEC Documents ; Financial Statements . Except as disclosed in Schedule 3 ( k ) , since January 1 , 2014 , the Company has timely filed all reports , schedules , forms , statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act ( all of the foregoing filed prior to the date hereof , and all exhibits included therein and financial statements , notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the SEC Documents ) . The Company has delivered to the Buyers or their respective representatives true , correct and complete copies of the SEC Documents not available on the EDGAR system . As of their respective filing dates , the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents , and none of the SEC Documents , at the time they were filed with the SEC , contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein , in the light of the circumstances under which they were made , not misleading . As of their respective filing dates , the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto . Such financial statements have been prepared in accordance with United States generally accepted accounting principles , consistently applied , during the periods involved ( GAAP ) ( except ( i ) as may be otherwise indicated in such financial statements or the notes thereto , or ( ii ) in the case of unaudited interim statements , to the extent they may exclude footnotes or may be condensed or summary statements ) and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended ( subject , in the case of unaudited statements , to normal year-end audit adjustments which will not be material , either individually or in the aggregate ) . No other information provided by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents , including , without limitation , information referred to in Section 2 ( d ) of this Agreement or in the disclosure schedules to this Agreement , contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein , in the light of the circumstance under which they are or were made , not misleading .


(p) Sarbanes-Oxley Act. Except as set forth on Schedule 3(p), the Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 , as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof. The matter set forth in Schedule 3(p) would not reasonably be expected to have a Material Adverse Effect.

( p ) Sarbanes-Oxley Act . Except as set forth on Schedule 3 ( p ) , the Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 , as amended , that are effective as of the date hereof , and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof . The matter set forth in Schedule 3 ( p ) would not reasonably be expected to have a Material Adverse Effect .


(r) Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, of which as of the date hereof, 33,046,364 shares are issued and outstanding, 26,602,702 shares are reserved for issuance pursuant to the Companys stock option and purchase plans and 197,536,831 shares are reserved for issuance pursuant to securities (other than the aforementioned options and the Offered Notes) exercisable or exchangeable for, or convertible into, Common Stock, and (ii) 10,000,000 shares of preferred stock, par value $0.001 per share, of which as of the date hereof 10 shares are issued and outstanding as of the date hereof. No shares of Common Stock are held in treasury and all of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. (i) None of the Companys or any Subsidiarys capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) except as disclosed in Schedule 3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) except as disclosed in Schedule 3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts filed in connection with the Company or any of its Subsidiaries; (v) except as disclosed in Schedule 3(r)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act ( except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) except as disclosed in Schedule 3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or phantom stock plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any Subsidiary has any liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Companys or any of its Subsidiarys respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Companys Articles of Incorporation, as amended and as in effect on the date hereof (the Articles of Incorporation), and the Companys Bylaws, as amended and as in effect on the date hereof (the Bylaws), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

( r ) Equity Capitalization . As of the date hereof , the authorized capital stock of the Company consists of ( i ) 100 , 000 , 000 shares of Common Stock , of which as of the date hereof , 33 , 046 , 364 shares are issued and outstanding , 26 , 602 , 702 shares are reserved for issuance pursuant to the Companys stock option and purchase plans and 197 , 536 , 831 shares are reserved for issuance pursuant to securities ( other than the aforementioned options and the Offered Notes ) exercisable or exchangeable for , or convertible into , Common Stock , and ( ii ) 10 , 000 , 000 shares of preferred stock , par value $ 0 . 001 per share , of which as of the date hereof 10 shares are issued and outstanding as of the date hereof . No shares of Common Stock are held in treasury and all of such outstanding shares are duly authorized and have been , or upon issuance will be , validly issued and are fully paid and nonassessable . ( i ) None of the Companys or any Subsidiarys capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company or any Subsidiary ; ( ii ) except as disclosed in Schedule 3 ( r ) ( ii ) , there are no outstanding options , warrants , scrip , rights to subscribe to , calls or commitments of any character whatsoever relating to , or securities or rights convertible into , or exercisable or exchangeable for , any shares of capital stock of the Company or any of its Subsidiaries , or contracts , commitments , understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares or capital stock of the Company or any of its Subsidiaries or options , warrants , scrip , rights to subscribe to , calls or commitments of any character whatsoever relating to , or securities or rights convertible into , or exercisable or exchangeable for , any shares of capital stock of the Company or any of its Subsidiaries ; ( iii ) except as disclosed in Schedule 3 ( r ) ( iii ) , there are no outstanding debt securities , notes , credit agreements , credit facilities or other agreements , documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound ; ( iv ) there are no financing statements securing obligations in any material amounts filed in connection with the Company or any of its Subsidiaries ; ( v ) except as disclosed in Schedule 3 ( r ) ( v ) , there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act ( except pursuant to the Registration Rights Agreement ) ; ( vi ) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions , and there are no contracts , commitments , understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries ; ( vii ) except as disclosed in Schedule 3 ( r ) ( vii ) , there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities ; ( viii ) neither the Company nor any Subsidiary has any stock appreciation rights or phantom stock plans or agreements or any similar plan or agreement ; and ( ix ) neither the Company nor any Subsidiary has any liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents , other than those incurred in the ordinary course of the Companys or any of its Subsidiarys respective businesses and which , individually or in the aggregate , do not or would not have a Material Adverse Effect . The Company has furnished or made available to the Buyers true , correct and complete copies of the Companys Articles of Incorporation , as amended and as in effect on the date hereof ( the Articles of Incorporation ) , and the Companys Bylaws , as amended and as in effect on the date hereof ( the Bylaws ) , and the terms of all securities convertible into , or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto .


(dd) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

( dd ) Off Balance Sheet Arrangements . There is no transaction , arrangement , or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect .


(jj) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956 , as amended (the BHCA) and to regulation by the Board of Governors of the Federal Reserve System (the Federal Reserve). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.

( jj ) Bank Holding Company Act . Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956 , as amended ( the BHCA ) and to regulation by the Board of Governors of the Federal Reserve System ( the Federal Reserve ) . Neither the Company nor any of its Subsidiaries or affiliates owns or controls , directly or indirectly , five percent ( 5 % ) or more of the outstanding shares of any class of voting securities or twenty-five percent ( 25 % ) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve . Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve .


(c) Reporting Status. Until the date on which the Investors (as defined in the Registration Rights Agreement) shall have sold all of the Conversion Shares and none of the Offered Notes are outstanding (the Reporting Period), the Company shall use its reasonable best efforts to file all reports required to be filed with the SEC pursuant to the 1934 Act , and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.

( c ) Reporting Status . Until the date on which the Investors ( as defined in the Registration Rights Agreement ) shall have sold all of the Conversion Shares and none of the Offered Notes are outstanding ( the Reporting Period ) , the Company shall use its reasonable best efforts to file all reports required to be filed with the SEC pursuant to the 1934 Act , and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination .


(i) Disclosure of Transactions and Other Material Information. On or before 8:30 a.m., New York City time, on the fourth Business Day after this Agreement has been executed, the Company shall file a Current Report on Form 8-K describing the terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching the material Transaction Documents (including, without limitation, this Agreement, the form of Note, the Registration Rights Agreement, the Security Agreement and the form of Guaranty, the 8-K Filing). Neither the Company, its Subsidiaries nor the Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of the Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and (ii) as is required by applicable law and regulations. Except for the Registration Statement required to be filed pursuant to the Registration Rights Agreement, the Form 8-K Filing and as otherwise required by applicable law and regulations, without the prior written consent of the Buyer, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of the Buyer in any filing, announcement, release or otherwise.

( i ) Disclosure of Transactions and Other Material Information . On or before 8 : 30 a . m . , New York City time , on the fourth Business Day after this Agreement has been executed , the Company shall file a Current Report on Form 8-K describing the terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching the material Transaction Documents ( including , without limitation , this Agreement , the form of Note , the Registration Rights Agreement , the Security Agreement and the form of Guaranty , the 8-K Filing ) . Neither the Company , its Subsidiaries nor the Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby ; provided , however , that the Company shall be entitled , without the prior approval of the Buyer , to make any press release or other public disclosure with respect to such transactions ( i ) in substantial conformity with the 8-K Filing and ( ii ) as is required by applicable law and regulations . Except for the Registration Statement required to be filed pursuant to the Registration Rights Agreement , the Form 8-K Filing and as otherwise required by applicable law and regulations , without the prior written consent of the Buyer , neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of the Buyer in any filing , announcement , release or otherwise .


(o) Directors. Within 10 days of written request from the Buyer, the Board of Directors of the Company shall take all necessary action to appoint to the Board of Directors such persons as the Buyer shall determine so that, following such appointment, such persons represent one third ( 1/3) of the number of persons on the Board of Directors; provided that in order to comply with this Section 4(o), the Board of Directors shall cause such number of current members of the Board of Directors to resign from the Board rather than increase the size of the Board.

( o ) Directors . Within 10 days of written request from the Buyer , the Board of Directors of the Company shall take all necessary action to appoint to the Board of Directors such persons as the Buyer shall determine so that , following such appointment , such persons represent one third ( 1 / 3 ) of the number of persons on the Board of Directors ; provided that in order to comply with this Section 4 ( o ) , the Board of Directors shall cause such number of current members of the Board of Directors to resign from the Board rather than increase the size of the Board .


(i) The Buyer hereby (a) appoints Passaic River Capital LLC as the collateral agent hereunder and under the Security Documents (in such capacity, the Collateral Agent), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyers behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of the Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to the Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and the Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the Collateral Agent Indemnitees) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents.

( i ) The Buyer hereby ( a ) appoints Passaic River Capital LLC as the collateral agent hereunder and under the Security Documents ( in such capacity , the Collateral Agent ) , and ( b ) authorizes the Collateral Agent ( and its officers , directors , employees and agents ) to take such action on such Buyers behalf in accordance with the terms hereof and thereof . The Collateral Agent shall not have , by reason hereof or pursuant to any Security Documents , a fiduciary relationship in respect of the Buyer . Neither the Collateral Agent nor any of its officers , directors , employees and agents shall have any liability to the Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct , and the Buyer agrees to defend , protect , indemnify and hold harmless the Collateral Agent and all of its officers , directors , employees and agents ( collectively , the Collateral Agent Indemnitees ) from and against any losses , damages , liabilities , obligations , penalties , actions , judgments , suits , fees , costs and expenses ( including , without limitation , reasonable attorneys fees , costs and expenses ) incurred by such Collateral Agent Indemnitee , whether direct , indirect or consequential , arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents .


(r) No Net Short Sales. So long as the Offered Notes remain outstanding, neither Buyer nor any of its affiliates nor any entity managed or controlled by the Buyer (collectively, the Restricted Persons and each of the foregoing is referred to herein as a Restricted Person) shall maintain, in the aggregate, a Net Short Position. For purposes hereof, a Net Short Position by a Restricted Person means a position whereby such Restricted Person has executed one or more sales of Common Stock that is marked as a short sale (but not including any sale marked short exempt) and that is executed at a time when such Restricted Person has no equivalent offsetting long position in the Common Stock (or is deemed to have a long position hereunder or otherwise in accordance with Regulation SHO under the 1934 Act ); provided, further that no Short Sale shall be deemed to exist as a result of any failure by the Company (or its agents) to deliver Conversion Shares upon conversion of the Offered Notes to any Restricted Person converting such Offered Notes. For purposes of determining whether a Restricted Person has an equivalent offsetting long position in the Common Stock, such Restricted Person shall be deemed to hold long all Common Stock that is either (i) then owned by such Restricted Person, if any, (ii) then issuable to such Restricted Person as Conversion Shares pursuant to the terms of the Offered Notes then held by such Restricted Person, if any, (without regard to any limitations on conversion set forth in the Offered Notes and giving effect to any conversion price adjustments that would take effect given only the passage of time), or (iii) that may be issued as Interest Shares pursuant to the terms of the Offered Notes to such Restricted Person. Notwithstanding the foregoing, nothing contained herein (i) shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person from selling long (as defined under Rule 200 promulgated under Regulation SHO under the 1934 Act ) the Securities or any other Common Stock then owned by such Restricted Person or (ii) shall constitute a covenant, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions.

( r ) No Net Short Sales . So long as the Offered Notes remain outstanding , neither Buyer nor any of its affiliates nor any entity managed or controlled by the Buyer ( collectively , the Restricted Persons and each of the foregoing is referred to herein as a Restricted Person ) shall maintain , in the aggregate , a Net Short Position . For purposes hereof , a Net Short Position by a Restricted Person means a position whereby such Restricted Person has executed one or more sales of Common Stock that is marked as a short sale ( but not including any sale marked short exempt ) and that is executed at a time when such Restricted Person has no equivalent offsetting long position in the Common Stock ( or is deemed to have a long position hereunder or otherwise in accordance with Regulation SHO under the 1934 Act ) ; provided , further that no Short Sale shall be deemed to exist as a result of any failure by the Company ( or its agents ) to deliver Conversion Shares upon conversion of the Offered Notes to any Restricted Person converting such Offered Notes . For purposes of determining whether a Restricted Person has an equivalent offsetting long position in the Common Stock , such Restricted Person shall be deemed to hold long all Common Stock that is either ( i ) then owned by such Restricted Person , if any , ( ii ) then issuable to such Restricted Person as Conversion Shares pursuant to the terms of the Offered Notes then held by such Restricted Person , if any , ( without regard to any limitations on conversion set forth in the Offered Notes and giving effect to any conversion price adjustments that would take effect given only the passage of time ) , or ( iii ) that may be issued as Interest Shares pursuant to the terms of the Offered Notes to such Restricted Person . Notwithstanding the foregoing , nothing contained herein ( i ) shall ( without implication that the contrary would otherwise be true ) prohibit any Restricted Person from selling long ( as defined under Rule 200 promulgated under Regulation SHO under the 1934 Act ) the Securities or any other Common Stock then owned by such Restricted Person or ( ii ) shall constitute a covenant , or preclude any actions , with respect to the identification of the availability of , or securing of , available shares to borrow in order to effect short sales or similar transactions .


(t) Option to Purchase Preferred Stock. From the date that the Offered Notes and the 10% Senior Secured Convertible Notes issued to the Buyer on January 27, 2106 are converted into shares of Common Stock, until Janaury 26, 2020, the Buyer has the option, in its sole and absolute discretion, to purchase 10 shares of a new series of preferred stock of the Company for a purchase price of $10.00, which new series of preferred stock will have substantially similar rights, powers, and preferences as the shares of series A preferred stock, par value $0.001 per share, which were issued to the Buyer on July 27, 2016; provided that the new series of preferred stock will provide that the Buyer will have right to appoint a majority of the members Board of Directors of the Company.

( t ) Option to Purchase Preferred Stock . From the date that the Offered Notes and the 10 % Senior Secured Convertible Notes issued to the Buyer on January 27 , 2106 are converted into shares of Common Stock , until Janaury 26 , 2020 , the Buyer has the option , in its sole and absolute discretion , to purchase 10 shares of a new series of preferred stock of the Company for a purchase price of $ 10 . 00 , which new series of preferred stock will have substantially similar rights , powers , and preferences as the shares of series A preferred stock , par value $ 0 . 001 per share , which were issued to the Buyer on July 27 , 2016 ; provided that the new series of preferred stock will provide that the Buyer will have right to appoint a majority of the members Board of Directors of the Company .


| If to the Company: ---|--- | | | | Enerpulse Technologies, Inc. | | 2451 Alamo Ave. NE, | | Albuquerque, New Mexico 87106 | | Telephone: | (505) 842-5201 | | Facsimile: | (505) 213-0013 | | Attention: | Bryan Templeton, | | | Chief Financial Officer | | Email: | btempleton@enerpulse.com | | | With a copy to: | | | | Troutman Sanders LLP | | 875 Third Avenue | | New York, NY 10022 | | Telephone: | (212) 704-6249 | | Facsimile: | (212) 704-5900 | | Attention: | Aurora Cassirer, Esq . | | E-mail: | acasirer@troutmansanders.com | | | If to the Transfer Agent: | | | | Securities Transfer Corporation | | 2591 Dallas Parkway, Suite 102 | | Frisco, Texas 75034 | | Telephone: (469) 633-0101 | | Facsimile: (469) 633-0088 | | Attention: Christina Shelton, Original Issuance Department | | E-mail: shelton@stctransfer.com

| If to the Company : - - - | - - - | | | | Enerpulse Technologies , Inc . | | 2451 Alamo Ave . NE , | | Albuquerque , New Mexico 87106 | | Telephone : | ( 505 ) 842-5201 | | Facsimile : | ( 505 ) 213-0013 | | Attention : | Bryan Templeton , | | | Chief Financial Officer | | Email : | btempleton @ enerpulse . com | | | With a copy to : | | | | Troutman Sanders LLP | | 875 Third Avenue | | New York , NY 10022 | | Telephone : | ( 212 ) 704-6249 | | Facsimile : | ( 212 ) 704-5900 | | Attention : | Aurora Cassirer , Esq . | | E-mail : | acasirer @ troutmansanders . com | | | If to the Transfer Agent : | | | | Securities Transfer Corporation | | 2591 Dallas Parkway , Suite 102 | | Frisco , Texas 75034 | | Telephone : ( 469 ) 633-0101 | | Facsimile : ( 469 ) 633-0088 | | Attention : Christina Shelton , Original Issuance Department | | E-mail : shelton @ stctransfer . com


EX-10.1 2 ex10-1.htm TECHNOLOGY PURCHASE AGREEMENT DATED MARCH 13, 2017.


Dated as of March 13, 2017


This Technology Purchase Agreement dated as of March 13, 2017 , (the "Agreement") is by and between

This Technology Purchase Agreement dated as of March 13 , 2017 , ( the " Agreement " ) is by and between


Enviro Voraxial Technology, Inc. , an Idaho corporation, and Florida Precision Aerospace, Inc. a Florida corporation ("Sellers").

Enviro Voraxial Technology , Inc . , an Idaho corporation , and Florida Precision Aerospace , Inc . a Florida corporation ( " Sellers " ) .


Two Million Six Hundred Thousand U.S. Dollars ($2,600,000) shall be paid directly to Florida Precision Aerospace, Inc. ---|--- (b)

Two Million Six Hundred Thousand U . S . Dollars ( $ 2 , 600 , 000 ) shall be paid directly to Florida Precision Aerospace , Inc . - - - | - - - ( b )


Four Hundred Thousand U.S. Dollars ($400,000) shall be paid directly Enviro Voraxial Technology, Inc. ---|--- (c)

Four Hundred Thousand U . S . Dollars ( $ 400 , 000 ) shall be paid directly Enviro Voraxial Technology , Inc . - - - | - - - ( c )


One Million U.S. Dollars ($1,000,000) shall be held back by Purchasers to be paid to Florida Precision Aerospace, Inc. , upon completion, as determined solely by Purchasers, of both 1) the complete transfer of the Purchased Intellectually Property to Purchasers and 2) the provision by Sellers of transition information, assets and services ("Transition Items") to Purchasers sufficient to reasonably enable Purchasers to commercialize the Purchased Assets, including the Transition Items identified in and provided in accordance with Schedule 3.2. ---|--- (d)

One Million U . S . Dollars ( $ 1 , 000 , 000 ) shall be held back by Purchasers to be paid to Florida Precision Aerospace , Inc . , upon completion , as determined solely by Purchasers , of both 1 ) the complete transfer of the Purchased Intellectually Property to Purchasers and 2 ) the provision by Sellers of transition information , assets and services ( " Transition Items " ) to Purchasers sufficient to reasonably enable Purchasers to commercialize the Purchased Assets , including the Transition Items identified in and provided in accordance with Schedule 3 . 2 . - - - | - - - ( d )


Schlumberger Technology Corporation : 85% for all U.S. rights in and to the Purchased Assets; ---|---

Schlumberger Technology Corporation : 85 % for all U . S . rights in and to the Purchased Assets ; - - - | - - -


Schlumberger Canada: 1% for all Canadian rights in and to the Purchased Assets. ---|--- Payment Mechanism. All such amounts shall be paid by wire transfer of immediately available funds in accordance with the payment instructions set forth in Schedule 3.3.

Schlumberger Canada : 1 % for all Canadian rights in and to the Purchased Assets . - - - | - - - Payment Mechanism . All such amounts shall be paid by wire transfer of immediately available funds in accordance with the payment instructions set forth in Schedule 3 . 3 .


821 NW 57th Place


Fort Lauderdale, FL 33309


Sugar Land, Texas 77478


GOLDMAN SACHS MORTGAGE COMPANY , SELLER


MORTGAGE LOAN PURCHASE AGREEMEN T Dated as of March 1, 2017

MORTGAGE LOAN PURCHASE AGREEMEN T Dated as of March 1 , 2017


This Mortgage Loan Purchase Agreement (Agreement), dated as of March 1, 2017 , is between GS Mortgage Securities Corporation II , a Delaware corporation, as purchaser (the Purchaser), and Goldman Sachs Mortgage Company , a New York limited partnership, as seller (the Seller).

This Mortgage Loan Purchase Agreement ( Agreement ) , dated as of March 1 , 2017 , is between GS Mortgage Securities Corporation II , a Delaware corporation , as purchaser ( the Purchaser ) , and Goldman Sachs Mortgage Company , a New York limited partnership , as seller ( the Seller ) .


Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement, dated as of March 1, 2017 (the Pooling and Servicing Agreement), among the Purchaser, as depositor (in such capacity, the Depositor), Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the Master Servicer), Rialto Capital Advisors, LLC, as special servicer (the Special Servicer), Pentalpha Surveillance LLC, as operating advisor (in such capacity, the Operating Advisor) and asset representations reviewer (in such capacity, the Asset Representations Reviewer), and Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the Certificate Administrator) and trustee (in such capacity, the Trustee), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein) to a trust fund and certificates and the Retained Interest representing ownership interests in the Mortgage Loans will be issued by a New York common law trust (the Trust). In exchange for the Mortgage Loans, the Trust will issue to or at the direction of the Depositor certificates to be known as GS Mortgage Securities Trust 2017-GS5, Commercial Mortgage Pass- Through Certificates, Series 2017-GS5 (collectively, the Certificates) and the Retained Interest. For purposes of this Agreement, Mortgage Loans refers to the mortgage loans listed on Exhibit A and Mortgaged Properties refers to the properties securing such Mortgage Loans.

Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement , dated as of March 1 , 2017 ( the Pooling and Servicing Agreement ) , among the Purchaser , as depositor ( in such capacity , the Depositor ) , Midland Loan Services , a Division of PNC Bank , National Association , as master servicer ( the Master Servicer ) , Rialto Capital Advisors , LLC , as special servicer ( the Special Servicer ) , Pentalpha Surveillance LLC , as operating advisor ( in such capacity , the Operating Advisor ) and asset representations reviewer ( in such capacity , the Asset Representations Reviewer ) , and Wells Fargo Bank , National Association , as certificate administrator ( in such capacity , the Certificate Administrator ) and trustee ( in such capacity , the Trustee ) , pursuant to which the Purchaser will transfer the Mortgage Loans ( as defined herein ) to a trust fund and certificates and the Retained Interest representing ownership interests in the Mortgage Loans will be issued by a New York common law trust ( the Trust ) . In exchange for the Mortgage Loans , the Trust will issue to or at the direction of the Depositor certificates to be known as GS Mortgage Securities Trust 2017-GS5 , Commercial Mortgage Pass - Through Certificates , Series 2017-GS5 ( collectively , the Certificates ) and the Retained Interest . For purposes of this Agreement , Mortgage Loans refers to the mortgage loans listed on Exhibit A and Mortgaged Properties refers to the properties securing such Mortgage Loans .


The sale and conveyance of the Mortgage Loans is being conducted on an arms- length basis and upon commercially reasonable terms. As consideration for the Mortgage Loans, the Purchaser shall (i)transfer the Retained Interest to the Seller or at the Sellers direction and (ii)pay, by wire transfer of immediately available funds, to the Seller or at the Sellers direction $1,066,783,921.62, plus accrued interest on the Mortgage Loans from and including March 1, 2017 to but excluding the Closing Date (but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible). The Seller hereby directs the Depositor to transfer the Retained Interest directly to Goldman Sachs Bank USA.

The sale and conveyance of the Mortgage Loans is being conducted on an arms - length basis and upon commercially reasonable terms . As consideration for the Mortgage Loans , the Purchaser shall ( i ) transfer the Retained Interest to the Seller or at the Sellers direction and ( ii ) pay , by wire transfer of immediately available funds , to the Seller or at the Sellers direction $ 1 , 066 , 783 , 921 . 62 , plus accrued interest on the Mortgage Loans from and including March 1 , 2017 to but excluding the Closing Date ( but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible ) . The Seller hereby directs the Depositor to transfer the Retained Interest directly to Goldman Sachs Bank USA .


(f)for so long as the Trust (or with respect to the Companion Loans, if such Companion Loan is deposited into another securitization, the trust fund under such other securitization) is subject to the reporting requirements of the Exchange Act, the Seller shall provide the Depositor (or with respect to the Companion Loans, if such Companion Loan (or a portion thereof) is deposited into another securitization, the depositor of such securitization) and the Certificate Administrator with any Additional Form 10-D Disclosure , any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on ExhibitBB, ExhibitCC and ExhibitDD to the Pooling and Servicing Agreement, to the extent contemplated to be provided by the Seller, within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Sellers reporting obligations under Item 1119 of Regulation AB, upon reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant;

( f ) for so long as the Trust ( or with respect to the Companion Loans , if such Companion Loan is deposited into another securitization , the trust fund under such other securitization ) is subject to the reporting requirements of the Exchange Act , the Seller shall provide the Depositor ( or with respect to the Companion Loans , if such Companion Loan ( or a portion thereof ) is deposited into another securitization , the depositor of such securitization ) and the Certificate Administrator with any Additional Form 10-D Disclosure , any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on ExhibitBB , ExhibitCC and ExhibitDD to the Pooling and Servicing Agreement , to the extent contemplated to be provided by the Seller , within the time periods set forth in the Pooling and Servicing Agreement ; provided that , in connection with providing Additional Form 10-K Disclosure and the Sellers reporting obligations under Item 1119 of Regulation AB , upon reasonable request by the Seller , the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant ;