Exhibit 10.5


 





 


____________________________


 


 


AMENDED AND RESTATED


OUTSOURCING AGREEMENT


 


 


Dated as of [___________], 2015


 


 


ASPIRITY HOLDINGS LLC


 


And


 


REDWATER LLC


 


____________________________


 


 


$75,000,000.00


 


Renewable Unsecured Subordinated Notes


 


 


 


 


 


 


 




    	 



    	 



    

TABLE OF CONTENTS


	ARTICLE I  DEFINITIONS	1
	 	 
	Section 1.01  Defined Terms	1
	Section 1.02  Accounting Terms	4
	 	 
	ARTICLE II RETENTION OF CONTRACTOR AND RELATED AGREEMENTS	5
	 	 
	Section 2.01  Retention	5
	Section 2.02  Scope of Duties	5
	Section 2.03  Compensation
to the Contractor	6
	Section 2.04  Brokers and Dealers	6
	Section 2.05  The Contractor’s Unrelated Activities	6
	Section 2.06  Independent Contractor	6
	Section 2.07 Issuance and Payment	7
	 	 
	ARTICLE III SERVICES; STANDARD OF CARE	7
	 	 
	Section 3.01  Services for the Notes	7
	Section 3.02  Maintenance of Files and Records	8
	Section 3.03  Information to the Company	10
	 	 
	ARTICLE IV REPRESENTATIONS AND COVENANTS OF THE COMPANY	10
	 	 
	Section 4.01  Representations, Warranties and Agreements of the Company	10
	Section 4.02  Covenants of the Company	11
	 	 
	ARTICLE V REPRESENTATIONS AND COVENANTS OF THE CONTRACTOR; CONDITIONS	12
	 	 
	Section 5.01  Representations and Warranties of the Contractor	12
	Section 5.02  Covenants
of the Contractor	13
	 	 
	ARTICLE VI CONDITIONS	14
	 	 
	Section 6.01  Conditions of the Contractor’s Obligations	14
	 	 
	 	 
	ARTICLE VII INDEMNIFICATION AND CONTRIBUTION	15
	 	 
	Section 7.01  The Company’s Indemnification of the Contractor	15
	Section 7.02  The Contractor’s Indemnification of the Company	15
	Section 7.03  Intellectual Property Infringement	15
	Section 7.04  Confidentiality	16
	 	 
	ARTICLE VIII TERM AND TERMINATION	16
	Section 8.01  Effective Date of this Agreement	16
	Section 8.02  Termination	16
	Section 8.03  Termination Without Termination of Offering	16



 


 



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	ARTICLE IX MISCELLANEOUS	17
	 	 
	Section 9.01  Survival	17
	Section 9.02  Notices	17
	Section 9.03  Successors and Assigns; Transfer	17
	Section 9.04  Cumulative Remedies.	18
	Section 9.05  Attorneys’ Fees	18
	Section 9.06  Entire Agreement	18
	Section 9.07  Choice of Law; Venue	18
	Section 9.08  Rights to Investor Lists	18
	Section 9.09  Waiver; Subsequent Modification	18
	Section 9.10  Severability	18
	Section 9.11  Joint Preparation	19
	Section 9.12  Captions	19
	Section 9.13  Counterparts	19
	Section 9.14  Third
Party Contractors	19


 




 


 


 


 


 






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AMENDED
AND RESTATED outsourcing AGREEMENT


 


This AMENDED AND RESTATED
OUTSOURCING AGREEMENT (this “Agreement”) is entered into as of this [___] day of [_________], 2015 by and between
Aspirity Holdings LLC, a Minnesota limited liability company (f/k/a Twin Cities Power Holdings, LLC) (the “Company”),
and Redwater LLC, a Minnesota limited liability company (the “Contractor”).


 


RECITALS


 


WHEREAS, the Company
and Contractor previously entered into that certain Outsourcing Agreement dated May 10, 2012 (the “Prior Agreement”);


 


WHEREAS, the Company
and Contractor desire to amend and restate the Prior Agreement in its entirety and intend this Agreement as a complete statement
of their business relationship related hereto;


 


WHEREAS, the Company
has registered for public offer and sale an aggregate principal amount of $75,000,000.00 of renewable, unsecured, subordinated
notes of the Company; and


 


WHEREAS, subject
to the termination rights set forth herein, the Company desires to retain the Contractor to perform certain ministerial tasks on
behalf of the Company, and Contractor desires to accept such duties, all as provided for by the terms of this Agreement.


 


NOW, THEREFORE, in
consideration of the above and for other good and valuable consideration, receipt of which is acknowledged, and in consideration
of the mutual promises, covenants, representations and warranties hereinafter set forth, the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section
1.01 Defined Terms. Whenever used in this Agreement, the following terms have the respective meanings
set forth below. The definitions of such terms are applicable to the singular as well as to the plural forms of such terms.


 


Accepted Note Practices. As applicable
to the context in which this term is used, those procedures and practices with respect to the servicing and administration of the
Notes that satisfy the following: (i) the use of reasonable care; (ii) compliance with all Governmental Rules; (iii) compliance
with the provisions of this Agreement and the Indenture; and (iv) give due consideration to the accepted standards of practice
of prudent servicing firms that service or administer comparable programs for publicly offered notes or securities and the reliance
of the Company on the Contractor for the servicing and administration of the Renewable Note Program.


 


Contractor. Redwater LLC, a Minnesota
limited liability company, or its successors in interest or assigns, if approved by the Company as provided in Sections 5.02(c)
and 9.03, below.


 




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Agreement. This Amended and Restated
Outsourcing Agreement, including any exhibits or attachments hereto, as originally executed, and as amended or supplemented from
time to time in accordance with the terms hereof.


 


Business Day. Any day other than (a)
a Saturday or Sunday or (b) another day on which banking institutions in the State of Minnesota are authorized or obligated by
law, executive order, or governmental decree to be closed.


 


Commission or SEC. The Securities
and Exchange Commission.


 


Company. Twin Cities Power Holdings,
LLC, or its successors or assigns, if approved by Contractor as provided in Section 9.03, below.


 


Due Period. The monthly, quarterly,
semi-annual, or annual periods, or the full term of the Note if interest is due at maturity, for which scheduled payments of interest
will be paid on any Note.


 


Exchange Act. The Securities Exchange
Act of 1934, as amended, and as hereafter amended, and the rules and regulations thereunder.


 


FINRA. Financial Industry Regulatory
Authority.


 


Governmental Rules. Any law, rule,
regulation, ordinance, order, code, interpretation, judgment, decree, policy, decision or guideline of any governmental agency,
court or authority.


 


Holder. The registered owner of any
Note as it appears on the records of the Registrar, including any purchaser or any subsequent transferee or other holder thereof.


 


Incorporated Documents. All documents
that, on or at any time after the effective date of the Registration Statement, are incorporated by reference therein, in the Prospectus,
or in any amendment or supplement thereto.


 


Indenture. That certain Indenture dated
as of May 10, 2012, by and between the Company and the Trustee with respect to the Notes, as supplemented by that First Supplemental
Indenture dated [___________], 2015, as the same may be amended or supplemented in accordance with its terms.


 


Investor. Any person who purchases
Notes or who contacts the Contractor expressing an interest in purchasing the Notes or requesting information concerning the Notes.


 


Material Agreement. With respect to
a person, any agreement, contract, joint venture, lease, commitment, guaranty or other contractual arrangement or any bond, debenture,
indenture, mortgage, deed of trust, loan or security agreement, note, instrument or other evidence of indebtedness, which in the
case of any of the foregoing is material to the business, assets, operations, condition or prospects, financial or otherwise, of
such person or which is material to the ability of such person to perform its obligations under this Agreement.


 




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Note Confirmation. With respect to
the issuance and ownership of the Notes in book-entry form, an appropriate written confirmation of the issuance and ownership or
transfer of ownership of a Note to a Holder, the format of which shall comply with the provisions of the Indenture.


 


Note Portfolio. The aggregate of individual
Notes, as it exists from time to time, which, unless the context otherwise requires or provides, determined by the principal balances
of the outstanding Notes.


 





Notes.  Both (i) the renewable, unsecured, subordinated
notes of the Company that are being offered and sold pursuant to the Registration Statement and that have an aggregate principal
amount up to $75,000,000 and such other terms as described in the Prospectus, and any additional principal amount of the same or
similar notes as may be registered from time to time pursuant to the Registration Statement; and (ii) any outstanding notes issued
pursuant to the Prior Agreement under the Company’s prior Form S-1 (File No. 333-179460).










 


Offering. The offer and sale of the
Notes in accordance with the terms and subject to the conditions set forth in the Registration Statement.


 


Paying Agent. BOKF, NA dba Bank of
Oklahoma or its successors or assigns, or such other paying agent with respect to the Notes as may be subsequently appointed by
the Company pursuant to the Indenture.


 


Paying Agent Agreement. That certain
agreement by and between the Company and the Paying Agent relating to the Company’s engagement of the Paying Agent to act
as the paying agent for the Notes.


 


Paying Agent Fees. All fees and expenses
payable to the Paying Agent in accordance with the Paying Agent Agreement.


 


Proprietary Rights. All rights worldwide
in and to copyrights, rights to register copyrights, trade secrets, inventions, patents, patent rights, trademarks, trademark rights,
confidential and proprietary information protected under contract or otherwise under law, and other similar rights or interests
in intellectual or industrial property.


 


Prospectus. The prospectus included
in the Registration Statement at the time it was declared effective by the Commission, as supplemented by all prospectus supplements
(including interest rate supplements) related to the Notes that are filed with the Commission pursuant to Rules 424(b) or (c) under
the Securities Act. References to the Prospectus shall be deemed to refer to and include the Incorporated Documents to the extent
incorporated by reference therein.


 




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Redemption Payment. The payment of
principal plus any accrued and unpaid interest that is being made at the discretion of the Company in accordance with the Indenture.


 


Registration Statement. That certain
Registration Statement on Form S-1 (File No. [_____]) of the Company with respect to the Notes filed with the Securities and Exchange
Commission under the Securities Act on May 8, 2015, as amended and declared effective by the Commission, including the respective
copies thereof filed with the Commission. References to the Registration Statement shall be deemed to refer to and include the
Incorporated Documents to the extent incorporated by reference therein.


 


Renewable Note Program. The administration,
customer service and investor relations, registration of ownership, reporting, payment, repurchase, redemption, renewal and related
activities associated with the Notes.


 


Repurchase Payment. The payment of
principal plus any accrued and unpaid interest, less any penalties upon the repurchase of any Note, that is being made at the request
of the Holder in accordance with the Indenture.


 


Scheduled Payment. For any Due Period
and any Note, the amount of interest and/or principal indicated in such Note as required to be paid by the Company under such Note
for the Due Period and giving effect to any rescheduling or reduction of payments in any insolvency or similar proceeding and any
portion thereof.


 


Securities Act. The Securities Act
of 1933, as amended, and as hereafter amended, and the rules and regulations thereunder.


 


Subscription Agreement. A subscription
agreement entered into by a person under which such person has committed to purchase certain Notes as identified thereby, in such
form and substance as mutually agreed by the parties and as filed as an exhibit to the Registration Statement.


 


Trust Account. The trust account established
by the Trustee pursuant to the Indenture.


 


Trust Indenture Act. The Trust Indenture
Act of 1939, as amended, and as hereafter amended, and the rules and regulations thereunder.


 


Trustee. BOKF, NA dba Bank of Oklahoma,
or its successors or assigns, or any replacement Trustee under the terms of the Indenture.


 


Section
1.02 Accounting Terms. Unless otherwise specified in this Agreement, all accounting terms used in
this Agreement shall be interpreted, all accounting determinations under this Agreement shall be made, and all financial statements
required to be delivered by any person pursuant to this Agreement shall be prepared, in accordance with U.S. generally accepted
accounting principles, as in effect from time to time and as applied on a consistent basis. To the extent such principles do not
apply to certain reports or accounting practices of the Contractor, the parties will mutually agree on the accounting practices
and assumptions.


 




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ARTICLE II

RETENTION OF THE CONTRACTOR AND RELATED AGREEMENTS


 


 


Section
2.01 Retention.  On the basis of the representations, warranties and agreements herein contained,
and subject to the terms, conditions and covenants set forth herein during the term of this Agreement, the Company retains the
Contractor to perform the tasks specified herein on behalf of the Company related to servicing of the Notes, in each case, under
the Renewable Note Program upon the terms and conditions set forth herein, including, without limitation, compliance and conformity
with Accepted Note Practices and Governmental Rules, and the Contractor agrees to use its best efforts perform such tasks until
the later of the termination of the Offering or the sale of all of the Notes, or until the termination of this Agreement, if earlier.
In connection with the servicing of the Renewable Note Program, the Contractor will carry out the duties provided for herein.


 


Section
2.02 Scope of Duties.


 


(a)In the performance of its duties hereunder,
the Contractor shall have only such power and authority to take action for purposes of servicing the Notes, under the Renewable
Note Program that the Company, in its discretion, deems necessary or appropriate, subject in all respects to compliance and conformity
with Accepted Note Practices and Governmental Rules. Initial instructions of the Company to the Contractor are set forth in Section
2.02(b), which Company may, in its discretion, amend and supplement from time to time. In the performance of its duties hereunder,
the Contractor shall (i) act as the agent of the Company in connection with the Renewable Note Program; (ii) promptly
forward to the Company all Subscription Agreements, notices or other documents received by it in connection with the Renewable
Note Program for the sole and exclusive use and benefit of the Company; and (iii) make dispositions of the items in clause
(ii) only in accordance with this Agreement or at the written direction of the Company. Except as set forth in this Agreement with
respect to the Renewable Note Program, the Contractor shall have no authority, express or implied, to act in any manner or by any
means for or on behalf of the Company.


 


(b) Initial
Instructions:


 


	(i)		Geographical Limitations. Contractor shall not communicate with Investors resident
in any state that is identified in the then-current Prospectus as a state in which the Notes are not offered, other than to communicate,
in substance, that the Notes are not offered to persons resident in such states. The initial list of states where the Notes may
be offered is as follows, but the Company may, in its discretion, amend such list by filing an amended Prospectus or a supplement
to Prospectus: California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Michigan, Minnesota,
Mississippi, Missouri, New Jersey, New Mexico, New York, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, and Wisconsin



 




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Section
2.03 Compensation to the Contractor.


 


(a)The Contractor’s Fees.
In consideration of the agreement of the Contractor to provide its services as set forth in this Agreement, the Company will pay
the Contractor the following amounts:


 


(i)A monthly service fee of $7.50 per
note based on the maximum number of notes outstanding during the month, subject to a monthly minimum of $2,500;


 


(ii)A fulfillment fee of $2.00 per investment
kit mailed; and


 


(iii)A fulfillment fee of $1.00 for each
other non-investment kit mailing.


 


(b)The Contractor’s Expenses.
Except as otherwise provided in this Agreement, each party shall bear all of its own expenses.


 


(c) Payment of Fees. On the first
Business Day of each month, or as soon thereafter as practicable, the Contractor shall provide the Company with a written invoice
for the previous month’s fees and expenses that are payable with respect to Notes issued up to the last day of such month.
Such fees and expenses will be due and payable by the later of the fifteenth (15th) day of every month or fifteen (15)
days after the date such invoice is received.


 


Section
2.04 Brokers and Dealers. At the discretion of the Company, the Company may, at no additional obligation
or expense to the Contractor, use the services of brokers or dealers who are members in good standing of FINRA in connection with
the offer and sale of the Notes. The Company may enter into agreements with any such broker or dealer to act as its agents for
the sale of the Notes and shall be solely responsible for the payment of any portion of the Contractor’s compensation hereunder
to such broker or dealer. The Contractor’s administrative services will apply to all notes sold by brokers or dealers and
the Company will compensate the Contractor for such services in accordance with Section 2.03.


 


Section
2.05 The Contractor’s Unrelated Activities. The Company agrees that the Contractor may service
renewable note programs for other issuers during the course of the Offering, but such activities shall not prevent the Contractor
from promptly and efficiently performing its duties hereunder. The Contractor shall have the right to advertise or otherwise disclose
to unrelated prospective issuers, at its own expense, its relationship with the Company, the services it provides in connection
with the Notes and the amount of money that it raised through the Offering and the performance of the Offering, subject to the
Company’s consent, which shall not be unreasonably withheld.


 




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Section
2.06 Independent Contractor. The Contractor shall have no obligation to purchase Notes for its own
account. During the term of this Agreement, all actions taken by the Contractor pursuant to this Agreement shall be in the capacity
of an independent contractor, and in no event shall the Contractor have any obligations under the Notes.


 


Section
2.07 Issuance and Payment. The Notes shall be issued pursuant to the Indenture and all Scheduled Payments,
Redemption Payments and Repurchase Payments shall be made by automated clearing house (i.e., ACH) remittance from the Trust Account
by the Paying Agent in accordance with the Paying Agent Agreement and the Indenture.


 


ARTICLE III

SERVICES; STANDARD OF CARE


 


 


 


Section
3.01 Services for the Notes. The services to be provided to the Company by the Contractor pursuant
to and during the term of this Agreement shall include the following:


 


(a)Subscription, Sale and Ownership.
During the term of this Agreement, the Contractor shall promptly forward to the Company each Subscription Agreement for the Notes
received from an Investor. The Company shall be responsible for determining whether (i) such subscription shall be accepted, (ii) such
agreement is complete and accurate in all material respects, including without limitation the execution thereof by such Investor,
(iii) such Investor timely remits the proper purchase price for the Notes in accordance with the Subscription Agreement, and
(iv) the principal amount, interest rate and term to maturity and any other material terms of the Notes are verified for accuracy
and completeness. Upon delivery by each Investor of a completed Subscription Agreement for Notes and full payment of the principal
amount of such Notes in accordance with the Investor’s Subscription Agreement, and subject to the acceptance of the Subscription
Agreement by the Company, the Company shall promptly notify the Contractor and the Contractor shall promptly (i) verify that
the payment of the principal amount of such Investor’s accepted subscription for the Notes is being remitted to the Company
in accordance with the Subscription Agreement in an account established by the Company for such purpose or in such other manner
as may be directed by the Company from time to time, and (ii) remit to the Trustee electronic or hard copies of all accepted
Subscription Agreements and related records as may be reasonably requested by the Trustee, including without limitation, a record
of each deposit relating to the payment of the subscription amount of the Notes. Pursuant to the preceding sentence, Notes shall
be issued by the Contractor as the Company’s Registrar in book-entry form only and the Contractor shall deliver a Note Confirmation
to each Holder with respect to such Holder’s respective accepted Subscription Agreement and the receipt of full payment for
such Holder’s Notes. In the event that the Company rejects a Subscription Agreement, the Contractor shall promptly return
the Subscription Agreement and the related subscription amount to the related Investor. The Company hereby appoints the Contractor,
and the Contractor hereby accepts such appointment, as its initial Registrar (as such term is defined in the Indenture) for the
Notes pursuant to the terms of the Indenture. For so long as the Contractor shall serve as the Registrar for the Notes, the Contractor
shall perform, in accordance with the terms of the Indenture, all of the duties and obligations of the Registrar under the Indenture,
including, without limitation, the obligation to maintain a book-entry registration and transfer system for the ownership of the
Notes in accordance with the terms of the Indenture.


 




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(b)Investor Relations and Reporting.
During the term of this Agreement the Contractor, in conjunction with the Trustee, shall perform ministerial tasks included in
the customer service and investor relations functions with respect to the Offering, as directed from time to time by the Company,
which may include, but not be limited to, handling inquiries from Investors in a manner consistent with Section 3.01(d), mailing
investment kits, delivering to each Investor the Prospectus and Subscription Agreement, and processing Subscription Agreements.
The Contractor shall to the best of its knowledge ensure that each person submitting a Subscription Agreement shall have received
the Prospectus. An Investor who visits a web site related to the Offering shall be deemed to have received the Prospectus, provided
such person either delivers an Electronic Delivery Consent Form with such Investors Subscription Agreement or certifies under penalties
of perjury that he, she or it has received the Prospectus.


 


(c)The Contractor shall forward to the
Company written or telephonic questions by Investors and Holders relating to the Notes regarding topics that are not addressed
in the Prospectus or its supplements, including without limitation questions relating to the Company’s finances and business,
the Company’s performance and practices with regard to the Notes, and substantive matters regarding an investment in the
Notes, unless such questions can be answered solely by reference to the Company’s SEC filings. Notwithstanding the foregoing,
the Contractor may respond to questions that are purely administrative or ministerial in nature. The Contractor shall also be responsible
for recording changes in Holders’ addresses or accounts, preparing and issuing maturity and renewal notices, quarterly statements,
newsletters, reports and analyses to Holders and to the Company, directing the Paying Agent to make Scheduled Payments, Repurchase
Payments and Redemption Payments to Holders in a timely manner, and directing the Paying Agent to issue Form 1099INT’s to
Holders as required by law. In addition, the Contractor shall provide the Trustee (and copy the Company) with management reports
regarding the Notes as required under the Indenture.


 


(d)Daily Payment Reports to Company.
On each Business Day during the term of the Notes, the Contractor shall furnish daily reports to the Company that detail and summarize
the amount of cash that is required to pay interest and principal on the Notes.


 


Section
3.02 Maintenance of Files and Records. The Contractor shall establish and maintain at all times during
the term of this Agreement files and records (including, without limitation, computerized records) regarding the Notes and the
Note Portfolio, with full and correct entries of all transactions or modifications in a reasonably secure, up-to-date manner and
in accordance with the following:


 


(a)Location. All Note and Note
Portfolio files and records shall be stored and maintained at the Contractor’s principal place of business, or other location
as designated by the Company. The Contractor shall keep in such files all correspondence received or sent regarding each Note,
each Investor, and each Holder, whether upon any purchase or transfer of a Note.


 




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(b)Original Documents. The Contractor
will store all original Subscription Agreements, Note Confirmations, correspondence from Investors and Holders and other materials
relating to the Renewable Note Program in a reasonably secure manner at the Contractor’s principal offices or such other
location as may be designated by the Company. The Contractor shall exercise due care in handling and delivering the original documents
and the other documents in the Note files and records. The Contractor shall not grant or allow any person an interest in original
documents or rights thereunder, and all original documents in the possession of the Contractor shall be deemed to be in the possession
of the Company.


 


(c)Examination. At any time the
Company and its agents and representatives may physically inspect any documents, files or other records relating to the Renewable
Note Program and discuss the same with the Contractor’s officers and employees. The Contractor shall supply copies of any
such documents, files, or other records upon the request of the Company, as soon as is reasonably and commercially practicable
at the Company’s cost and expense.


 


(d)Retention. Unless otherwise
requested by the Company, or unless otherwise required by Governmental Rules, the Contractor shall retain, with respect to each
Note, for a period of 24 months from the date the Note is fully paid, all records, files and documents related to each such Note.
At the end of such 24-month period, unless otherwise directed by the Company, all such items shall be transferred to the Company,
or to a third party as designated by the Company, at the Company’s sole cost and expense. The Contractor shall be permitted
to retain copies of any such documents for its own files for its own account and at its own expense. The Contractor shall maintain
the privacy of the Investors and Holders in accordance with all applicable Governmental Rules.


 


(e)Return. If this Agreement is
terminated, or otherwise at the instruction of the Company, the Contractor shall promptly deliver to the Company or its designee,
as the case may be, all Note files and records (including, without limitation, copies of computerized records and servicing and
other software, except as may be prohibited by any third party contract or license) related to the administration of the Notes
and all monies collected by it relating to the Renewable Note Program (less any fees or expenses due to the Contractor). The Contractor
shall be entitled to make and keep copies of such records, at its cost and expense. In addition to delivering such data and monies,
the Contractor shall use its best efforts to effect the orderly and efficient transfer of the administration of the Notes to the
Company or other party designated by the Company to assume responsibility for such administration, including, without limitation,
directing Holders to remit all repurchase or other notices to the address designated by the Company. All costs of conversion and
transfer of such records to the Company or another agent shall be paid by the Company.


 




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(f)Security. The parties shall
take appropriate security measures to protect customer nonpublic personal information (“NPI”), as defined in the Gramm-Leach-Bliley
Act of 1999, Title V, and its implementing regulations, against accidental or unlawful destruction and unauthorized access, tampering,
and copying during storage in either party’s computing or paper environment. Access to NPI must be restricted to only the
personnel that have a business need relating to the Renewable Note Program. NPI must be stored in a secured format within all systems
at both parties’ location and any other locations where the data may reside. Transmission of such NPI between the parties
or vendors must be done in a secure manner, in a method mutually agreed upon by both parties. Each party will engage appropriate
and industry-standard measures necessary to meet information security guidelines as required by the Gramm-Leach-Bliley Act, Title
V and its implementing regulations as applicable to such party to effectuate this Agreement.


 


Section
3.03 Information to the Company. As agreed by the parties, the Contractor shall make reports and analyses
available to the Company regarding the status of the Note Portfolio and the amount of Notes remaining available for issuance under
the Registration Statement. The Contractor shall also provide interim or custom reports at the Company’s request as is commercially
reasonable, including, without limitation, a weekly update via email identifying new Holders by name, address and principal amount
of Notes purchased. The Contractor shall also furnish statements, reports and information to the Paying Agent to the extent that
the Company is required to furnish or cause to be furnished such statements, reports or information to the Paying Agent under the
Paying Agent Agreement.


 


ARTICLE IV

REPRESENTATIONS AND COVENANTS OF THE COMPANY


 


 


Section
4.01 Representations, Warranties and Agreements of the Company. The Company represents and warrants
to and agrees with the Contractor as follows, which representations and warranties shall be deemed to be made continuously from
and as of the date hereof until this Offering is terminated and all then outstanding Notes have been paid in full or such earlier
date that this Agreement has been terminated, except for those representations and warranties that address matters only as of a
particular date, which representations and warranties shall be deemed to be made as of such date.


 


(a)The Company satisfies all of the requirements
for the use of Form S-1 with respect to the offer and sale of securities as contemplated by the Offering. The Commission has not
issued any order preventing or suspending the use of the Registration Statement or Prospectus and no proceeding for that purpose
has been instituted or, to the Company’s knowledge, threatened by the Commission or the securities authority of any state
or other jurisdiction.


 


(b)The Company has full requisite power
and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the
Company in accordance with its terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. The performance
of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under:


 




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(i)any Material Agreement to which the
Company or any subsidiary is a party or by which the Company or any subsidiary or their respective properties may be bound;


 


(ii)the articles of organization or bylaws
of the Company, or


 


(iii)any applicable law, order, rule,
regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign,
having jurisdiction over the Company or any subsidiary or their respective properties.


 


(c)No consent, approval, authorization
or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company
or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the
transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, the Trust Indenture
Act, or under state or other securities or blue sky laws, all of which requirements have been satisfied.


 


Section
4.02 Covenants of the Company. The Company hereby covenants and agrees with the Contractor as follows:


 


(a)The Company will notify the Contractor
promptly of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective
or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or additional information. In the event that the Company files any amendment or supplement
to the Registration Statement or Prospectus to which the Contractor shall reasonably object, the Contractor will be relieved of
its obligations with respect to the Offering (but not the administration) of the Notes until such time as the Company shall have
filed such further amendments or supplements such that the Contractor is reasonably satisfied with the Registration Statement and
the Prospectus, as then amended or supplemented.


 


(b)The Company will advise the Contractor,
promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, of the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or receipt of any specific threat of any proceeding for any such purpose.


 




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(c)The Company will furnish to the Contractor
copies of the Registration Statement, the Prospectus, and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Contractor may from time to time reasonably request.


 


(d)For such period as this Agreement may
be in effect, the Company shall make available to the Contractor, as soon as the same shall be sent to its stockholders generally,
copies of all annual or interim stockholder reports of the Company and will, for the same period, also furnish the Contractor one
copy of any report, application or document (other than exhibits, which, however, will be furnished on the Contractor’s request)
filed by the Company with the Commission, The Nasdaq Stock Market or any other securities exchange.


 


(e)At all times during the term of this
Agreement, the Company shall provide all information reasonably requested by the Contractor that relates to the Renewable Note
Program in a timely manner and shall use its best efforts to insure that such information is complete and accurate.


 


(f)The Company will, during the term of
this Agreement, furnish directly to the Contractor quarterly profit and loss statements and reports of the Company’s cash
flow as reported on the applicable quarterly report on Form 10-Q.


 


ARTICLE V

REPRESENTATIONS AND COVENANTS OF THE CONTRACTOR; CONDITIONS


 


 


Section
5.01 Representations and Warranties of the Contractor. The Contractor hereby represents and warrants
to the Company as follows, which representations and warranties shall be deemed to be made continuously from and as of the date
hereof until this Offering is terminated or such earlier date that this Agreement has been terminated:


 


(a)The Contractor (i) has been duly organized,
is validly existing and in good standing as a Minnesota limited liability company, (ii) has qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of its properties or the nature of its activities
(including without limitation activities of the Contractor hereunder) makes such qualification necessary, and (iii) has full power,
authority and legal right to own its property, to carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement.


 


(b)The Contractor has full requisite power
and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Contractor and is a valid and binding agreement on the part of the Contractor, enforceable against
the Contractor in accordance with its terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.
The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under:


 




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(i)any Material Agreement to which the
Contractor is a party or by which the Company or its properties may be bound;


 


(ii)the articles of organization or bylaws
of the Contractor, or


 


(iii)any applicable law, order, rule,
regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign,
having jurisdiction over the Contractor or over its properties.


 


(c)The Contractor has obtained all governmental
consents, licenses, approvals and authorizations, registrations and declarations which are necessary for the execution, delivery,
performance, validity and enforceability of the Contractor’s obligations under this Agreement.


 


(d)The Contractor has operated and is
operating in compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all
state, federal and other governmental regulatory officials and bodies necessary to conduct its business as contemplated by and
described in this Agreement, all of which are, to the Contractor’s knowledge, valid and in full force and effect. The Contractor
is conducting its business in compliance with all applicable Governmental Rules, laws, rules and regulations of the jurisdictions
in which it is conducting business, and the Contractor is not in violation of any applicable Governmental Rules, law, order, rule,
regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign,
having jurisdiction over the Contractor or over its properties.


 


(e)The Contractor maintains insurance,
which is in full force and effect, with insurers of recognized financial responsibility of the types and in the amounts generally
deemed adequate for its business and, to the best of the Contractor’s knowledge, in line with the insurance maintained by
similar companies and businesses, including cyber-insurance; and the Contractor has no reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not materially and adversely affect the financial condition or business
operations of the Contractor.


 


Section
5.02 Covenants of the Contractor. The Contractor hereby covenants to the Company as follows, which
covenants shall be deemed in force unless and until this Agreement is terminated as provided herein:


 


(a)The Contractor shall punctually perform
and observe all of its obligations and agreements contained in this Agreement.


 




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(b)The Contractor shall conduct its business
in compliance with all applicable Governmental Rules, and its activities shall not violate any governmental rules relating to the
registration or the activities of securities brokers and dealers. To the extent that this covenant to comply with all Governmental
Rules conflicts with any other covenant contained in this Agreement, the covenant to comply with all Governmental Rules shall control.


 


(c)Except as provided in this Agreement,
the Contractor shall not take any action, or permit any action to be taken by others, which would excuse any person from any of
its covenants or obligations under any Note, or under any other instrument related to a Note, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any Note or any such instrument
or any right in favor of the Company in a Note or such instrument, without the written consent of the Company.


 


(d)The Contractor shall not assign this
Agreement or any of its rights, powers, duties or obligations hereunder without the express prior written consent of the Company,
which shall not be unreasonably withheld.


 


(e)At all times during the term of this
Agreement, the Contractor shall provide all information relating to the Offering, the Renewable Note Program or the Note Portfolio
reasonably requested by the Company in a timely manner and shall use its best efforts to insure that such information is complete
and accurate in all material respects.


 


(f)The
Contractor shall take such additional action as is reasonably requested by the Company in order to carry out the purposes of this
Agreement. Such reasonable additional action includes, but is not limited to, cooperating with Company in verification of Contractor’s
compliance, such as by providing copies of certificates of insurance and of other books and records of Contractor, and by permitting
inspection of the premises, books and records of Contractor.


 


ARTICLE VI

CONDITIONS


 


 


Section
6.01 Conditions of the Contractor’s Obligations. The obligation of the Contractor to administer
the Offering on a best efforts basis as provided herein shall be subject to the accuracy of the representations and warranties
of the Company, to the performance by the Company of its obligations hereunder, and to the satisfaction of the following additional
conditions:


 


(a)The Registration Statement shall be
effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall
have been initiated or, to the knowledge of the Company, or the Contractor, threatened by the Commission or any state securities
commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Contractor and the
Contractor’s counsel.


 




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(b)The Contractor shall not have advised
the Company of its reasonable belief that the Registration Statement or Prospectus, or any amendment thereof or supplement thereto,
contains any untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated
therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not
misleading, or, if the Contractor has so advised the Company, the Company shall not have taken reasonable action to investigate
such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement
or omission or effect such compliance.


 


(c)The Indenture shall have been duly
authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act.


 


(d)All corporate proceedings and other
legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the registration, authorization,
issue, sale and delivery of the Notes shall have been reasonably satisfactory to the Contractor’s counsel, in all material
respects, and the Contractor’s counsel shall have been furnished with such papers and information as it may reasonably have
requested to enable it to pass upon the matters referred to in this Section.


 


ARTICLE VII

INDEMNIFICATION AND CONTRIBUTION


 


 


Section
7.01 The Company’s Indemnification of the Contractor. The Company agrees to indemnify and hold
Contractor, its officers, managers, directors, agents and employees harmless from and against any claims, liabilities, losses,
costs, expenses, or the like, including reasonable attorneys’ fees, incurred in respect to any material breach by Company
of this Agreement or Company’s negligence and/or intentional wrongdoing in connection with the services. Company shall be
responsible for the accuracy, completeness and propriety of information concerning its products and services that it furnishes
to Contractor in connection with the performance of the services.


 


Section
7.02 The Contractor’s Indemnification of the Company. The Contractor agrees to indemnify and
hold Company, its officers, directors, agents and employees harmless from and against any claims, liabilities, losses, costs, expenses,
or the like, including reasonable attorneys’ fees, incurred in respect to any material breach by Contractor hereof or Contractor’s
negligence and/or intentional wrongdoing in connection with the services.


 


Section
7.03 Intellectual Property Infringement. The Contractor agrees that it shall defend, indemnify and
hold harmless, at its own expense, all suits and claims against the Company and any officers, directors, employees and affiliates
of the Company (collectively, the “Company Indemnified Parties”), for infringement or violation of any patent, trademark,
copyright, trade secret or other intellectual property rights of any third party that relates to this Agreement or the Offering,
or servicing of the Notes. The Contractor agrees that it shall pay all sums, including without limitation, reasonable attorneys’
fees and other costs incurred by the Company, in defense of, by final judgment or decree, or in settlement of any suit or claim
asserted or assessed against, or incurred by, any of the Company Indemnified Parties on account of such infringement or violation,
provided that the Company Indemnified Parties involved shall cooperate in all reasonable respects with the Contractor and its attorneys
in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the
Company Indemnified Parties may, at their own cost, participate in the investigation, trial and defense of such lawsuit or action
and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers.


 




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Section
7.04 Confidentiality. The parties to this Agreement acknowledge and agree that all information, whether oral or
written, concerning a disclosing party and its business operations, prospects and strategy, which is furnished by the disclosing
party to the other party is deemed to be confidential, restricted and proprietary to the disclosing party (the “Proprietary
Information”). Proprietary Information supplied shall not be disclosed, used or reproduced in any form except as required
to accomplish the intent of, and in accordance with the terms of, this Agreement and the Indenture. The receiving party shall provide
the same care to avoid disclosure or unauthorized use of Proprietary Information as it provides to protect its own proprietary
information, including without limitation retaining Proprietary Information in a secure place with limited access, but in no event
shall the receiving party fail to use reasonable care under the circumstances to avoid disclosure or unauthorized use of Proprietary
Information. Unless otherwise specified in writing, all Proprietary Information shall (i) remain the property of the disclosing
party, (ii) be used by the receiving party only for the purpose for which it was intended under this Agreement and the Indenture,
and (iii) together with all copies of such information, be returned to the disclosing party or destroyed upon request of the disclosing
party, and, in any event, upon termination of this Agreement, except as otherwise provided or contemplated by this Agreement, including
Sections 3.02(b) and (e) and 8.05 hereof. Proprietary Information does not include information which is: (a) published or included
as disclosure within the Registration Statement or otherwise available in the public domain through no fault of the receiving party;
(b) lawfully received from a third party having rights in the information without restriction of the third party’s right
to disseminate the information and without notice of any restriction against its further disclosure; or (c) produced under order
of a court of competent jurisdiction or other similar requirement of a governmental agency or authority, so long as the party required
to disclose the information provides the other party with prior notice of such order or requirement and its cooperation to the
extent reasonable in preserving its confidentiality. Because damages may be difficult to ascertain, and without limiting any other
rights and remedies specified herein, an injunction may be sought against the party who has breached or threatened to breach this
Section.


 




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ARTICLE VIII

TERM AND TERMINATION


 


 


Section
8.01 Effective Date of this Agreement. This Agreement shall become effective as of the date first
set forth above, and shall continue in full force and effect until terminated as provided below.


 


Section
8.02 Termination. The Company or the Contractor may terminate this Agreement at any time in whole
or in part as more specifically provided below, and in such case, the Contractor will be paid fees incurred up to the date of such
termination plus its expenses accrued as of such date within 30 days of such termination. The Company will have the ability to
terminate this Agreement by giving 60 days’ prior written notice to the Contractor. The Contractor will have the ability
to terminate this Agreement by giving 90 days’ prior written notice to the Company.


 


Section
8.03 Termination Without Termination of Offering. Anything to the contrary notwithstanding, the termination
of this Agreement shall not prevent the Company from commencing or cause the Company to terminate the Offering. In the event this
Agreement is terminated without a termination of the Offering, then the Company, or its agents, shall be entitled to use all materials
developed by the Contractor related to the Notes as provided elsewhere herein.


 


ARTICLE IX

MISCELLANEOUS


 


 


Section
9.01 Survival. The respective indemnity and contribution agreements of the Company and the Contractor
set forth herein and the respective representations, warranties, covenants and agreements of the Company and the Contractor set
forth herein, shall remain operative and in full force and effect, regardless of any investigation made by, or on behalf of, the
Contractor, the Company, any of its officers and directors, or any controlling person referred to in Article VII and shall survive
the sale of the Notes and any termination or cancellation of this Agreement. Any successor of any party or of any such controlling
person, or any legal representative of such controlling person, as the case may be, shall be entitled to the benefit of the respective
indemnity and contribution agreements.


 


Section
9.02 Notices. All notices or communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered or transmitted by any standard form of telecommunication, as follows:


 


	If to the Contractor, to:	
        Redwater LLC

        5400 Opportunity Court

        Suite 160

        Minneapolis, Minnesota 55343

        Attention: K. Edward Elverud

        Tel. (952) 345-3385

         





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	If to the Company, to:	
        Twin Cities
Power Holdings, LLC

        16233 Kenyon Avenue

        Suite 210

        Lakeville, Minnesota 55044

        Attn: Chief Financial Officer

        Tel. 952-431-0400

         

	with a copy to:	
        Stinson Leonard Street LLP

        150 South Fifth Street – Suite 2300

        Minneapolis, Minnesota 55402

        Attention: Mark S. Weitz

        Tel. 612-335-1517

         



Section
9.03 Successors and Assigns; Transfer. This Agreement shall inure to the benefit of and be binding
upon the Contractor and the Company and their respective successors and permitted assigns. Nothing expressed in this Agreement
is intended or shall be construed to give any person or corporation, other than the parties hereto, their respective successors
and assigns, any legal or equitable right, remedy or claim under, or in respect of, this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective executors, administrators, successors, and for the benefit of no other person or corporation.
Neither party may assign its rights and obligations under this Agreement without the written consent of the other party.


 


Section
9.04 Cumulative Remedies. Unless otherwise expressly provided herein, the remedies of the parties
provided for herein shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion
of the party for whose benefit such remedy is provided, and may be exercised as often as occasion therefor shall arise.


 


Section
9.05 Attorneys’ Fees. In the event of any action to enforce or interpret this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, whether or not such action proceeds to
judgment.


 


Section
9.06 Entire Agreement. Except as otherwise expressly provided herein, this Agreement constitutes the
entire agreement of the parties hereto with respect to the matters addressed herein and supersedes all prior or contemporaneous
contracts, promises, representations, warranties and statements, whether written or oral (including, but not limited to, the Proposal),
with respect to such matters.


 


Section
9.07 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the
laws of the State of Minnesota, without regard to conflict of law principles. Any dispute shall be heard in the courts of the state
of Minnesota.


 


Section
9.08 Rights to Investor Lists. The parties acknowledge that the Offering will produce a list of investors
that purchase Notes, a list of prospects that respond to advertisements but do not purchase any Notes, a list of former investors
who redeemed their Notes, and a list of former investors whose Notes the Company redeemed. Subject to any privacy laws, both the
Company and the Contractor will be able to use these lists for their own business purposes as long as doing so does not interfere
with the sale or administration of the Notes.


 




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Section
9.09 Waiver; Subsequent Modification. Except as expressly provided herein, no delay or omission by
any party in insisting upon the strict observance or performance of any provision of this Agreement, or in exercising any right
or remedy, shall be construed as a waiver or relinquishment of such provision, nor shall it impair such right or remedy, and no
waiver by any party or any failure or refusal of the other party to comply with its obligations under this Agreement shall be deemed
a waiver of any other or subsequent failure or refusal to so comply by such other party. No waiver or modification of the terms
hereof shall be valid unless in writing and signed by the party to be charged, and then only to the extent therein set forth.


 


Section
9.10 Severability. If any term or provision of this Agreement or application thereof to any person
or circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each term or provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.


 


Section
9.11 Joint Preparation. The preparation of this Agreement has been a joint effort of the parties and
the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties
than the other.


 


Section
9.12 Captions. The title of this Agreement and the headings of the various articles, section and subsections
have been inserted only for the purpose of convenience, are not part of this Agreement and shall not be deemed in any manner to
modify, explain, expand or restrict any of the provisions of this Agreement.


 


Section
9.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one instrument.


 


Section
9.14 Third Party Contractors. In the event that the Company engages a third party to perform any of
the obligations of the Contractor under this Agreement, the Company shall provide written notice to the Contractor of such engagement,
the Contractor shall thereafter be relieved of any such obligations for which the third party was engaged. 


 


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IN WITNESS WHEREOF,
this Amended and Restated Outsourcing Agreement is hereby entered into by the undersigned parties as of the date first set forth
above.


	 	
        ASPIRITY HOLDINGS LLC

         

        By: _________________________________

         

        Name: ______________________________

         

        Title: _______________________________

         

	 	
        REDWATER LLC

         

        By: _______________________

        Name: K. Edward Elverud

        Title: Manager

         



 


 




 


 


 


 


 


 


 


 


 


 






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