SALE AND SERVICING AGREEMENT by and among HERCULES CAPITAL FUNDING TRUST 2022-1, as the Issuer, HERCULES CAPITAL FUNDING 2022-1 LLC, as the Trust Depositor, HERCULES CAPITAL, INC. as the Seller and as the Servicer, Dated as of June 22, 2022 Hercules...

Exhibit 10.3

SALE AND SERVICING AGREEMENT

by and among

HERCULES CAPITAL FUNDING TRUST 2022-1,
as the Issuer,

HERCULES CAPITAL FUNDING 2022-1 LLC,
as the Trust Depositor,

HERCULES CAPITAL, INC.
as the Seller and as the Servicer,

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as the Trustee and Paying Agent,

U.S. BANK NATIONAL ASSOCIATION
as the Backup Servicer and Custodian

Dated as of June 22, 2022

Hercules Capital Funding Trust 2022-1
Asset-Backed Notes

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Table of Contents

Page


ARTICLE 1. DEFINITIONS		2
Section 1.01.	Definitions.	2
Section 1.02.	Usage of Terms.	37
Section 1.03.	Section References.	37
Section 1.04.	Calculations.	37
Section 1.05.	Accounting Terms.	37
ARTICLE 2. ESTABLISHMENT OF ISSUER; TRANSFER OF LOAN ASSETS		37
Section 2.01.	Creation and Funding of Issuer; Transfer of Loan Assets.	37
Section 2.02.	Conditions to Transfer of Initial Loan Assets to Issuer.	40
Section 2.03.	Acceptance by Issuer.	41
Section 2.04.	Conveyance of Substitute Loans.	42
Section 2.05.	Optional Sales of Loans.	43
Section 2.06.	Optional Substitution of Loans.	44
Section 2.07.	Acquisition of Additional Loans.	44
Section 2.08.	Release of Excluded Amounts.	46
Section 2.09.	Delivery of Documents in the Loan File.	47
Section 2.10.	Limitations on Optional Sale and Substitution.	47
Section 2.11.	Certification by Custodian; Possession of Loan Files.	48
ARTICLE 3. REPRESENTATIONS AND WARRANTIES		50
Section 3.01.	Representations and Warranties Regarding the Trust Depositor.	50
Section 3.02.	Representations and Warranties Regarding Each Loan and as to Certain Loans in the Aggregate.	54
Section 3.03.	[Reserved].	55
Section 3.04.	Representations and Warranties Regarding the Required Loan Documents.	55
Section 3.05.	[Reserved].	55
Section 3.06.	Representations and Warranties Regarding the Servicer.	55
Section 3.07.	Representations of the Backup Servicer.	56
ARTICLE 4. PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS		58
Section 4.01.	Custody of Loans.	58
Section 4.02.	Filing.	58
Section 4.03.	Changes in Name, Organizational Structure or Location.	58
Section 4.04.	Costs and Expenses.	58
Section 4.05.	Sale Treatment.	59
Section 4.06.	Separateness from Trust Depositor.	59

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ARTICLE 5. SERVICING OF LOANS		59
Section 5.01.	Appointment and Acceptance.	59
Section 5.02.	Duties of the Servicer and the Backup Servicer.	59
Section 5.03.	Liquidation of Loans.	66
Section 5.04.	[Reserved.]	67
Section 5.05.	Maintenance of Insurance.	67
Section 5.06.	Collection of Certain Loan Payments.	67
Section 5.07.	Access to Certain Documentation and Information Regarding the Loans.	67
Section 5.08.	Satisfaction of Collateral and Release of Loan Files.	68
Section 5.09.	Scheduled Payment Advances; Servicing Advances and Nonrecoverable Advances.	69
Section 5.10.	Title, Management and Disposition of Foreclosed Property.	70
Section 5.11.	Servicing Compensation.	72
Section 5.12.	Assignment; Resignation.	72
Section 5.13.	Merger or Consolidation of Servicer.	73
Section 5.14.	Limitation on Liability of the Servicer and Others.	73
Section 5.15.	Determination of Reserve Account Required Balance.	74
Section 5.16.	Rights of and Limitation of Liability of Backup Servicer.	74
ARTICLE 6. COVENANTS OF THE TRUST DEPOSITOR		75
Section 6.01.	Legal Existence.	75
Section 6.02.	[Reserved].	76
Section 6.03.	Security Interests.	76
Section 6.04.	Delivery of Collections.	76
Section 6.05.	Regulatory Filings.	76
Section 6.06.	Compliance with Law.	76
Section 6.07.	Activities; Transfers of Notes or Certificates by Trust Depositor.	76
Section 6.08.	Indebtedness.	76
Section 6.09.	Guarantees.	77
Section 6.10.	Investments.	77
Section 6.11.	Merger; Sales.	77
Section 6.12.	Distributions.	77
Section 6.13.	Other Agreements.	77
Section 6.14.	Separate Legal Existence.	78
Section 6.15.	Location; Records.	78

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Section 6.16.	Liability of Trust Depositor.	78
Section 6.17.	Bankruptcy Limitations.	78
Section 6.18.	Limitation on Liability of Trust Depositor and Others.	78
Section 6.19.	Payments from Obligors.	79
ARTICLE 7. ESTABLISHMENT OF ACCOUNTS; DISTRIBUTIONS;		79
Section 7.01.	Distribution Account; Lockbox Account and Other Accounts.	79
Section 7.02.	Reserve Account.	80
Section 7.03.	Collection Account.	81
Section 7.04.	Reinvestment Account.	83
Section 7.05.	Securityholder Distributions.	84
Section 7.06.	Allocations and Distributions.	84
ARTICLE 8. SERVICER DEFAULT; SERVICER TRANSFER		88
Section 8.01.	Servicer Default.	88
Section 8.02.	Servicer Transfer.	89
Section 8.03.	Acceptance by Successor Servicer; Reconveyance; Successor Servicer to Act.	90
Section 8.04.	Notification to Securityholders.	92
Section 8.05.	Effect of Transfer.	92
Section 8.06.	Database File.	93
Section 8.07.	Waiver of Defaults.	93
ARTICLE 9. REPORTS		93
Section 9.01.	Monthly Reports.	93
Section 9.02.	Quarterly Reports.	94
Section 9.03.	Preparation of Reports; Officer’s Certificate.	94
Section 9.04.	Other Data; Obligor Financial Information.	95
Section 9.05.	Annual Report of Accountants.	96
Section 9.06.	Statements of Compliance from Servicer.	97
Section 9.07.	[Reserved].	97
Section 9.08.	Notices of Event of Default, Servicer Default or Rapid Amortization Event.	97
Section 9.09.	Trustee’s Right to Examine Servicer Records, Audit Operations and Deliver Information to Noteholders.	98
ARTICLE 10. TERMINATION		98
Section 10.01.	Optional Redemption of Notes; Rights of Certificateholders Following Satisfaction and Discharge of Indenture.	98
Section 10.02.	Termination.	99

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ARTICLE 11. REMEDIES UPON MISREPRESENTATION; REPURCHASE OPTION		100
Section 11.01.	Repurchases of, or Substitution for, Loans for Breach of Representations and Warranties.	100
Section 11.02.	Reassignment of Repurchased or Substituted Loans.	100
ARTICLE 12. INDEMNITIES		101
Section 12.01.	Indemnification by Servicer.	101
Section 12.02.	Indemnification by Trust Depositor.	101
Section 12.03.	Survival.	102
ARTICLE 13. MISCELLANEOUS		102
Section 13.01.	Amendment.	102
Section 13.02.	[Reserved].	103
Section 13.03.	Governing Law.	103
Section 13.04.	Notices.	104
Section 13.05.	Severability of Provisions.	107
Section 13.06.	Third Party Beneficiaries.	107
Section 13.07.	Counterparts.	107
Section 13.08.	Headings.	107
Section 13.09.	No Bankruptcy Petition; Disclaimer.	107
Section 13.10.	Jurisdiction.	108
Section 13.11.	Tax Characterization.	108
Section 13.12.	[Reserved].	108
Section 13.13.	Limitation of Liability of Owner Trustee.	108
Section 13.14.	[Reserved].	109
Section 13.15.	No Partnership.	109
Section 13.16.	Successors and Assigns.	109
Section 13.17.	Acts of Holders.	109
Section 13.18.	Duration of Agreement.	109
Section 13.19.	Limited Recourse.	109
Section 13.20.	Confidentiality.	110
Section 13.21.	Non-Confidentiality of Tax Treatment.	110

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EXHIBITS

Exhibit A Form of Assignment A‑1

Exhibit B Form of Closing Certificate of Trust Depositor B‑1

Exhibit C Form of Closing Certificate of Servicer/Seller C‑1

Exhibit D Form of Liquidation Report D‑1

Exhibit E [Reserved] E‑1

Exhibit F Servicer Officer’s Certificate F‑1

Exhibit G List of Loans G‑1

Exhibit H-1 Form of Quarterly Report H‑1

Exhibit H-2 Form of Monthly Report H‑2

Exhibit I [Reserved] I‑1

Exhibit J [Reserved] J‑1

Exhibit K Form of Annual Certification Regarding Required Loan Documents K‑1

Exhibit L‑1 Form of Initial Certification L‑1

Exhibit L‑2 Form of Final Certification L‑2

Exhibit M Form of Request for Release of Documents M‑1

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SALE AND SERVICING AGREEMENT

THIS SALE AND SERVICING AGREEMENT, dated as of June 22, 2022, is by and among:

(1) HERCULES CAPITAL FUNDING TRUST 2022-1, a statutory trust created and existing under the laws of the State of Delaware (together with its successors and assigns, the “Issuer”);

(2) HERCULES CAPITAL FUNDING 2022-1 LLC, a Delaware limited liability company, as the trust depositor (together with its successor and assigns, in such capacity, the “Trust Depositor”);

(3) HERCULES CAPITAL, INC., a Maryland corporation (together with its successors and assigns, “Hercules”), as the servicer (together with its successors and assigns, in such capacity, the “Servicer”), and as the seller (together with its successors and assigns, in such capacity, the “Seller”);

(4) U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION (together with its successors and assigns, “U.S. Bank”), not in its individual capacity but as the trustee (together with its successors and assigns, in such capacity, the “Trustee”) and not in its individual capacity but as paying agent (together with its successors and assigns in such capacity, the “Paying Agent”); and

(5) U.S. BANK NATIONAL ASSOCIATION (together with its successors and assigns, “USBNA”), not in its individual capacity but as the backup servicer (together with its successors and assigns, in such capacity, the “Backup Servicer”) and not in its individual capacity but as the custodian (together with its successors and assigns in such capacity, the “Custodian”).

R E C I T A L S

WHEREAS, in the regular course of its business, the Seller originates and/or otherwise acquires Loans (as defined herein);

WHEREAS, the Trust Depositor acquired the Initial Loans from the Seller and may acquire from time to time thereafter certain Additional Loans and Substitute Loans;

WHEREAS, it is a condition to the Trust Depositor’s acquisition of the Initial Loans, any Additional Loans and any Substitute Loans from the Seller that the Seller make certain representations and warranties regarding the Loan Assets for the benefit of the Trust Depositor as well as the Issuer;

WHEREAS, on the Closing Date, the Trust Depositor will sell, convey and assign all its right, title and interest in the Initial Loan Assets and certain other assets to the Issuer as provided herein;

WHEREAS, the Issuer is willing to purchase and accept assignment of the Loan Assets from the Trust Depositor pursuant to the terms hereof;

WHEREAS, the Servicer is willing to service the Loan Assets for the benefit and account of the Issuer pursuant to the terms hereof; and

WHEREAS, the Backup Servicer is willing to provide backup servicing for the Loan Assets.

NOW, THEREFORE, based upon the above recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

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ARTICLE 1.

DEFINITIONS

Section 1.01. Definitions.

Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

“1940 Act” means the Investment Company Act of 1940, as amended.

“Additional Loan” means one or more Loans transferred by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer under and in accordance with Section 2.07.

“Additional Loan Assets” means any assets acquired by the Issuer from the Trust Depositor following the Closing Date in connection with the conveyance of one or more Additional Loans pursuant to Section 2.07, which assets shall include the Trust Depositor’s right, title and interest in the following:

(i) the Additional Loans listed in the related Subsequent List of Loans and all monies due, to become due or paid in respect thereof accruing on and after the Additional Loan Cutoff Date and all Insurance Proceeds, Liquidation Proceeds and other recoveries thereon, in each case as they arise after the Additional Loan Cutoff Date;

(ii) all security interests and Liens and Related Property subject thereto from time to time purporting to secure payment by Obligors under such Loans;

(iii) all guaranties, indemnities and warranties, and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Loans;

(iv) all collections and Records (including Computer Records) with respect to the foregoing;

(v) all documents relating to the applicable Loan Files; and

(vi) all income, payments, proceeds and other benefits of any and all of the foregoing, including but not limited to, all accounts, cash and currency, chattel paper, electronic chattel paper, tangible chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles, instruments, commercial tort claims, deposit accounts, inventory, investment property, letter of credit rights, software, supporting obligations, accessions, and other property consisting of, arising out of, or related to the foregoing, but excluding any Excluded Amount with respect thereto.

“Additional Loan Cutoff Date” means each date on or after the Closing Date on which an Additional Loan is transferred to the Issuer.

“Adjusted Interest Rate” means from and after the Rating Date, the annual rate of interest corresponding to the rating assigned to the Notes on the Rating Date as set forth below:

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Note Rating	Adjusted Interest Rate
A or higher	4.950%
A-	5.150%
BBB+	5.550%
BBB	6.150%

“Adjusted Pool Balance” means, as of any Payment Date, Reference Date and Transfer Date, the Pool Balance (as of the last day of the related Collection Period, for any Reference Date or Payment Date, or as of such Transfer Date in the case of any Transfer Date) minus, without duplication, (a) the Excess Concentration Amounts (as of the last day of the related Collection Period, for any Reference Date or Payment Date, or as of such Transfer Date in the case of any Transfer Date), as applicable, minus (b) the aggregate Outstanding Loan Balance of all Delinquent Loans and Restructured Loans as of such date.

“Administration Agreement” means the Administration Agreement, as amended, supplemented or otherwise modified and in effect from time to time, dated as of the Closing Date, among the Issuer, the Administrator, the Owner Trustee and the Trustee.

“Administrative Expense Cap” XE “Administrative Expense Cap” means for all fees, expenses and indemnity payments due and owing with respect to each of the Trustee, the Owner Trustee, the Backup Servicer, the Custodian, the Split Loan Agent, if any, the Paying Agent and the Lockbox Bank pursuant to clause 1 of Section 7.06(a), prior to the occurrence of an Event of Default, collectively, an aggregate annual maximum amount of $500,000 (for the year ending on the first anniversary of the Closing Date and each year ending on each subsequent anniversary thereof), provided, however, that any amounts in respect of indemnification owing to the Backup Servicer as Successor Servicer shall not be subject to the Administrative Expense Cap. After the occurrence of an Event of Default that is continuing, the Administrative Expense Cap will not apply to indemnity payments to the Trustee, the Owner Trustee, the Backup Servicer, the Custodian, the Split Loan Agent (if any), the Paying Agent and the Lockbox Bank. If the Administrative Expense Cap is reached, all amounts owed to such parties above the Administrative Expense Cap will be paid pursuant to clause 6 of Section 7.06(a) and clause 3 of the Section 7.06(b) and will again be paid pursuant to clause 1 of the Section 7.06(a) beginning on the next anniversary of the Closing Date until the Administrative Expense Cap is again reached for such year.

“Administrative Expenses” means fees and expenses (excluding amounts related to indemnification) due or accrued with respect to any Payment Date and payable by the Issuer:

(a) to any Person in respect of any governmental fee, charge or tax in relation to the Issuer;

(b) to the Trustee, the Lockbox Bank, the Custodian, the Paying Agent and the Split Loan Agent (if any), (i) any monthly fees to be paid to it pursuant to the Transaction Documents, (ii) any additional fees, expenses or other amounts due and owing thereto and (iii) if a Successor Servicer is being appointed, any Servicing Transfer Costs incurred by the Trustee;

(c) to the Owner Trustee, (i) any monthly fees to be paid to it pursuant to the Transaction Documents and (ii) any additional fees, expenses or other amounts due and owing thereto;

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(d) to the Backup Servicer, (i) the Backup Servicer Fee to be paid to it pursuant to the Transaction Documents, (ii) any additional fees, expenses or other amounts due and owing thereto and (iii) fees and expenses and other amounts payable to the Backup Servicer in connection with a Servicer Transfer pursuant to Section 8.02(c);

(e) to the Independent Accountants, agents and counsel of the Issuer for fees and expenses including, but not limited to, audit fees and expenses, and to the Servicer for expenses and other amounts (excluding the Servicing Fee, any Scheduled Payment Advances and any Servicing Advances) payable under this Agreement;

(f) to the Trustee, for unpaid fees and expenses (including fees and expenses of its agents and counsel) incurred in the exercise of its rights and remedies on behalf of the Securityholders pursuant to Article V of the Indenture; and

(g) to KBRA for its surveillance fees in relation to the Notes;

provided that Administrative Expenses will not include (I) any amounts due or accrued with respect to the actions taken on or in connection with the Closing Date, (II) any principal of or interest on any Notes or (III) amounts payable to Trustee and the Owner Trustee in respect of indemnification.

“Administrator” means Hercules, as administrator pursuant to the Administration Agreement.

“Advance Rate” means for any Payment Date, with respect to each Loan included in the Collateral as of the related Reference Date, an amount to be determined by the number of obligors as set forth below:


# of Obligors	Advance Rate
10 or fewer	N/A (Rapid Amortization Event)
11-14	60%
15-29	65%
30	66%
31	67%
32	68%
33	69%
34 or more	70%

“Affiliate” of any specified Person means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person, or is a director or officer of such Person; provided that for purposes of determining whether any Loan is an Eligible Loan or any Obligor is an Eligible Obligor, the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common owner which is a financial institution, fund or other investment vehicle which is in the business of making diversified investments including investments independent from the Loans. For the purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”), when used with respect to any specified Person means the possession, direct or indirect, of the power to vote 25% or more of the voting securities of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. Each of the Trustee and the Owner Trustee may conclusively presume that a Person is not an Affiliate of another Person unless a Responsible Officer of such trustee has actual knowledge to the contrary.

“Agented Loan” means, any Loan with respect to which, (a) the Loan is originated or purchased by the Seller in accordance with the Credit and Collection Policy as a part of a syndicated loan transaction that has been fully consummated prior to such Loan becoming part of the Collateral, (b) the Issuer, as assignee of the Loan, has all of the rights (including without limitation voting rights) of the Seller with respect to such Loan and the Seller’s right, title

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and interest in and to the Related Property, (c) the Loan is secured by an undivided interest in the Related Property that also secures and is shared by, on a pro rata basis, all other holders of such Obligor’s notes of equal priority issued in such syndicated loan transaction and (d) the Seller (or a wholly owned subsidiary of the Seller) is the lead agent or collateral agent for all lenders in such syndicated loan transaction and receives payment directly from the Obligor and may collect such payments on behalf of such lenders.

“Aggregate Outstanding Loan Balance” means, as of any date, the sum of the Outstanding Loan Balance for each Loan owned by the Issuer.

“Aggregate Outstanding Principal Balance” means, as of any date of determination, the sum of the Outstanding Principal Balances of the Notes on such date.

“Agreement” means this Sale and Servicing Agreement, as amended, modified, waived, supplemented or restated from time to time in accordance with the terms hereof.

“Applicable Law” means, for any Person or property of such Person, all existing and future applicable laws, rules, regulations (including proposed, temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority (including, without limitation, usury laws, the Federal Truth in Lending Act, and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System), the Customer Identification Program requirements established under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56 (signed into law October 26, 2001) and its implementing regulations (collectively, USA PATRIOT Act), the Financial Crimes Enforcement Network’s (FinCEN) Customer Due Diligence Requirements and such other laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.

“Applicable Premium” means (i) prior to the end of the Reinvestment Period, the Make-Whole Premium; and (ii) $0 thereafter.

“Assignment” means each Assignment, substantially in the form of Exhibit A, relating to an assignment, transfer and conveyance of Loans and the Related Property by the Trust Depositor to the Issuer.

“Available Funds” means, with respect to any Payment Date, an amount equal to the sum of, without duplication, (a) Collections received during the related Collection Period; (b) interest earned on and any other investment earnings with respect to funds on deposit in each of the Collection Account and the Reserve Account during the related Interest Period; and (c) any Scheduled Payment Advances deposited into the Collection Account on the related Reference Date.

“Backup Servicer” has the meaning provided in the Preamble.

“Backup Servicer Fee” means the annual administration fee payable to the Backup Servicer as provided in the fee letter agreement between the Issuer and USBNA.

“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.

“Beneficial Owner” shall have the meaning provided in the Indenture.

“Borrowing Base” means, for any Payment Date, the sum of (A) the product of (x) the Advance Rate and (y) the Adjusted Pool Balance, (B) the amount on deposit in the Reinvestment Account (including for the avoidance of doubt, any capital contributions), and (C) all Principal Collections in the Collection Account anticipated to be deposited into

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the Reinvestment Account on such Payment Date (or the related Payment Date, as applicable) pursuant to Section 7.06(b), in each case determined as of the related Reference Date.

“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in New York, New York, Palo Alto, California, Wilmington, Delaware, Boston, Massachusetts, or St. Xxxx, Minnesota are authorized or obligated by law or executive order to be closed.

“Cash Yield Rate” means, for any Loan, a rate of return inclusive of interest, scheduled principal and fees for such Loan.

“Certificate” means the Hercules Capital Funding Trust 2022-1 Certificate representing a beneficial ownership interest in the Issuer and issued pursuant to the Trust Agreement.

“Certificate Account” shall have the meaning provided in Section 5.01 of the Trust Agreement.

“Certificate Register” shall have the meaning provided in the Trust Agreement.

“Certificateholder” means the registered holder of the Certificate.

“Closing Date” means June 22, 2022.

“Co-Agented Loan” means, any Loan with respect to which, (a) the Loan is originated or purchased by the Seller in accordance with the Credit and Collection Policy as a part of a syndicated loan transaction that has been fully consummated prior to such Loan becoming part of the Collateral, (b) the Issuer, as assignee of the Loan, has all of the rights (including without limitation voting rights) of the Seller with respect to such Loan and the Seller’s right, title and interest in and to the Related Property, (c) the Loan is secured by an undivided interest in the Related Property that also secures and is shared by, on a pro rata basis, all other holders of such Obligor’s notes of equal priority issued in such syndicated loan transaction and (d) either (i) the Seller (or a wholly owned subsidiary of the Seller) is a co-agent, collateral agent or paying agent in such syndicated loan transaction, (ii) neither the Seller nor any other lender is deemed to be the collateral agent in such syndicate loan transaction, or (iii) the Seller receives payment directly from the Obligor thereof on behalf of itself (but not on behalf of any other holders of such Obligor’s notes) and no other holder of such Obligor’s notes (nor any affiliate thereof) is identified as the lead agent, collateral agent or paying agent in such syndicated loan transaction.

“Code” means the Internal Revenue Code of 1986, as amended, or any successor legislation thereto.

“Collateral” means, as of any date, the “Indenture Collateral,” as such term is defined in the Indenture.

“Collection Account” means the interest bearing trust account so designated and established and maintained pursuant to Section 7.03(a).

“Collection Period” means, with respect to the first Payment Date, the period from and including the Cutoff Date to the close of business July 4, 2022, and for any Payment Date thereafter, the period from and including the fifth day of the calendar month in which the prior Payment Date occurred to the fourth day of the calendar month in which such Payment Date occurs.

“Collections” means the aggregate of Interest Collections and Principal Collections.

“Commission” means the United States Securities and Exchange Commission.

“Computer Records” means the computer records generated by the Servicer that provide information relating to the Loans and that were used by the Seller in selecting the Loans conveyed by the Trust Depositor to the Issuer pursuant

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to Section 2.01 (and any Additional Loans conveyed by the Trust Depositor to the Issuer pursuant to Section 2.07 and Substitute Loans conveyed by the Trust Depositor to the Issuer pursuant to Section 2.04 and Section 2.06, respectively).

“Continued Error” shall have the meaning provided in Section 8.03(e).

“Contractual Obligation” means, with respect to any Person, any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property is bound or is subject.

“Corporate Trust Office” means, with respect to the Trustee, the Owner Trustee or the Backup Servicer, as applicable, the office of the Trustee, the Owner Trustee or the Backup Servicer at which at any particular time its corporate trust business with respect to the transaction shall be principally administered, which offices at the date of the execution of this Agreement are located at the addresses set forth in Section 13.04.

“Credit and Collection Policy” means the policies and procedures of the Seller and Servicer with respect to underwriting, credit monitoring, investment grading, collection and servicing of Life Sciences Loans and Technology Loans in effect on the Cutoff Date, including without limitation the valuation policy and procedures of the Seller and Servicer and the Credit Monitoring Guidelines, in each case as amended, modified or supplemented from time to time, a description of which has been provided to the Trust Depositor, the Issuer, the Owner Trustee and the Trustee; and, with respect to any Successor Servicer (including for the avoidance of doubt the Backup Servicer in such capacity), the written credit and collection policies and procedures of such Person at the time such Person becomes a Successor Servicer.

“Credit Monitoring Guidelines” means the written Valuation Policy and Procedures of the Seller and Servicer dated 2021 and in effect as of the Cutoff Date, as amended, modified or supplemented from time to time.

“Curtailment” means, with respect to a Loan, any payment of principal received by the Issuer during a Collection Period as part of a payment allocable to a Loan that is in excess of the principal portion of the Scheduled Payment due for such Collection Period and which is not intended to satisfy the Loan in full, nor is intended to cure a delinquency including any accelerated amortization due to structural features of the related Loan.

“Custodian” has the meaning provided in the Preamble.

“Cutoff Date” means with respect to (i) the Initial Loans, the Initial Cutoff Date or (ii) any Additional Loan or Substitute Loan, the related Transfer Date.

“Cutoff Date Pool Balance” shall have the meaning provided in Section 2.10.

“Defaulted Loan” means a Loan in the Collateral as to which the earliest of the following has occurred: (i) any payment, or any part of any payment, due under such Loan (taking into account any waivers or modifications granted by the Servicer on such Loan) has become 120 days or more delinquent, whether or not the Servicer has foreclosed upon the related Collateral; (ii) the Servicer has foreclosed upon and sold the related collateral; (iii) 90 days has elapsed since the related Collateral was foreclosed upon by the Servicer; or (iv) the Servicer has determined in accordance with its customary practices that the Loan is uncollectible; provided if the principal amount of a Loan is reduced, written down or written off by the Servicer, the portion of such Loan (but not the whole Loan) that is so reduced, written down or written off shall be deemed to be a Defaulted Loan; provided, however, that any Loan that the Seller or the Trust Depositor is obligated to and does repurchase or purchase under this Agreement or any Loan that has been substituted and replaced by the Issuer with a Substitute Loan pursuant to Section 2.04 and Section 2.06 will not be deemed to be a Defaulted Loan.

“Distribution Account” means the non-interest bearing trust account so designated and established and maintained pursuant to Section 7.01.

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“Delinquent Loan” means a Loan which is more than forty-five (45) days delinquent in payment; provided, however, that any Loan that has been substituted and replaced by the Issuer with a Substitute Loan pursuant to Section 2.04 and Section 2.06 will not be deemed to be a Delinquent Loan.

“Dollar” and “$” means the lawful currency of the United States.

“EBITDA” means, with respect to any Loan, (i) “EBITDA” of the Obligor under such Loan or (ii) if the Underlying Loan Agreement for such Loan do not require an Obligor to calculate EBITDA, “operating income” (or such similar financial measurement), in each case as calculated and reported in accordance with the Underlying Loan Agreement for such Loan and with such adjustments as the Servicer determines to be appropriate in accordance with the Servicing Standard.

“ECA Calculation Balance” means, for any Record Date, Payment Date or Transfer Date means the sum of (i) the Pool Balance as of the last day of the related Collection Period (or for any Transfer Date, such Transfer Date), (ii) all funds on deposit in the Reinvestment Account as of the last day of the related Collection Period (or for any Transfer Date, as of such Transfer Date) and (iii) all Principal Collections in the Collection Account that are anticipated to be deposited in the Reinvestment Account on such Payment Date (or in the case of a Record Date or Transfer Date, the immediately following Payment Date) pursuant to Section 7.06(b).

“Eligible Deposit Account” means either (a) a segregated account with a Qualified Institution, or (b) a segregated trust account with the corporate trust department of a depository institution organized under the laws of the United States or any state of the United States or the District of Columbia, or any domestic branch of a foreign bank, having corporate trust powers and acting as trustee for funds deposited in the related account, so long as any of the securities of that depository institution has a credit rating from Xxxxx’x or another nationally recognized statistical rating organization in one of its generic rating categories that signifies investment grade.

“Eligible Loan” means, (i) on and as of the Cutoff Date, in the case of the Initial Loans, (ii) on and as of the Additional Loan Cutoff Date, in the case of any Additional Loans, and (iii) on and as of the related Substitute Loan Cutoff Date, in the case of any Substitute Loans, a Loan as to which each of the following is true:

(a) such Loan is either a Life Sciences Loan or a Technology Loan, has been originated or purchased by the Seller in the ordinary course of the Seller’s business and has been fully and properly executed by the parties thereto;

(b) such Loan is not a commercial loan to an obligor that is generally a later-stage, established company that is, at the time of origination of such Loan, (i) not venture backed (ii) is generating positive EBITDA and (iii) cash flow positive operations;

(c) provides for periodic payments of interest and/or principal in cash, which are due and payable on a monthly or quarterly basis;

(d) the information provided to the Issuer and its assigns in respect of such Loan pursuant to the Transaction Documents is true and correct in all material respects;

(e) provides for, in the event that such Loan is prepaid in whole, a prepayment that fully pays the principal amount of such prepayment together with interest and fees through the date of payment;

(f) such Loan satisfies in all material respects the requirements under the Credit and Collection Policy and was originated in accordance therewith;

(g) such Loan represents the legal, valid and binding payment obligation in writing of the related Obligor, enforceable by the holder thereof in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity;

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(h) such Loan is not due from the United States or any state thereof or from any agency, department or instrumentality of the United States or any state thereof;

(i) such Loan is secured by a valid, binding and enforceable first priority or second priority perfected security interest (subject to Permitted Liens) in favor of the underlying secured parties upon certain property of the Obligor identified in the Loan documentation; provided that, if the Seller is the sole lender, pursuant to the Underlying Loan Agreement, immediately prior to its conveyance, transfer, contribution and assignment by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer, such Loan is secured by a valid, binding and enforceable first priority or second priority perfected security interest (subject to Permitted Liens) in favor of the Seller, which security interest in favor of the Seller has been assigned by the Seller to the Trust Depositor, by the Trust Depositor to the Issuer, and pledged by the Issuer to the Trustee;

(j) such Loan is not subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and the operation of any of the terms of any contract, or the exercise of any right thereunder, will not render such contract unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and neither the Seller nor the Trust Depositor has received written notice of the assertion of any such right of rescission, setoff, counterclaim or defense asserted with respect thereto;

(k) such Loan does not have liens or claims (other than Permitted Liens) that exist or have been filed for work, labor or materials or unpaid state or federal taxes relating to collateral that are prior to, or equal or coordinate with, the security interest in such collateral created by the related Underlying Loan Agreement, except for such liens or claims that have been waived or modified as permitted hereunder;

(l) the Servicer is not aware that any default, breach, violation or event permitting acceleration under the terms of any Underlying Loan Agreement has occurred and is continuing with respect to such Loan, nor is the Servicer aware of any continuing condition with respect to such Loan that, with notice or the lapse of time or both, would constitute a default, breach, violation or event permitting acceleration under the terms of any contract, except for such defaults, breaches, violations or events which have been or are permitted to be waived or modified as permitted under the Servicing Standard and the Credit and Collection Policy;

(m) such Loan does not relate to property that has been foreclosed upon;

(n) such Loan has not been sold, transferred, assigned or pledged to any person other than the Issuer and has not been discharged;

(o) (i) immediately prior to the transfer of such Loan to the Trust Depositor, the Seller had good and marketable title to such Loan free and clear of all liens, encumbrances, security interests and rights of others (other than Permitted Liens) and, immediately upon such transfer, the Trust Depositor shall have good and marketable title to such Loan, free and clear of all liens, encumbrances, security interests and rights of others; and (ii) immediately prior to the transfer of such Loan to the Issuer, the Trust Depositor had good and marketable title to such Loan free and clear of all liens, encumbrances, security interests and rights of others (other than Permitted Liens) and, immediately upon such transfer, the Issuer shall have good and marketable title to such Loan, free and clear of all liens, encumbrances, security interests and rights of others;

(p) has been perfected against the related Obligor by all necessary action under the relevant UCC, Personal Property Security Act or other applicable statutes existing in jurisdictions in Canada that do not use the Personal Property Security Act, or applicable statutes existing in the relevant jurisdictions;

(q) has not been originated in, and is not subject to the laws of, any jurisdiction under which the sale, transfer, assignment and conveyance of such contract under the Sale and Contribution Agreement, this Agreement or the pledge of such Loan under the Indenture, is unlawful, void or voidable;

(r) other than with respect to Noteless Loans and Participated Loans, such Loan has only one original executed promissory note for each note relating to such Loan;

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(s) such Loan was not due from an Obligor that was the subject of a proceeding under the Bankruptcy Code or was bankrupt;

(t) such Loan had a Cash Yield Rate, as determined by the Servicer in accordance with the Credit and Collection Policy, of at least 6% per annum;

(u) the Required Loan Documents relating to such Loan have been delivered to the Custodian prior to the Closing Date, in the case of any Initial Loan, the Transfer Date, in the case of any Additional Loan, or the applicable date of substitution, in the case of any Substitute Loan;

(v) such Loan had no payment due that was thirty-one (31) or more days past due and such Loan was not a Defaulted Loan;

(w) such Loan is due from an Obligor with its headquarters, principal place of business and primary operations in the United States, Canada (other than in the Province of Quebec), the United Kingdom, Australia or a member state of the European Union;

(x) such Loan is payable in U.S. Dollars;

(y) such Loan is in registered form for U.S. federal income tax purposes (or in registered or bearer form if not a “registration-required obligation” as defined in Section 163(f)(2)(A) of the Code);

(z) such Loan has not been subject to waiver or modified, except as permitted hereunder;

(aa) as of the Transfer Date of such Loan, the Hercules Credit Score of the Loan is Grade 3, Grade 2 or Grade 1;

(bb) the origination of such Loan by the Seller and the transfer of such Loan by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer have complied in all material respects with Applicable Law;

(cc) no selection procedures believed by the Seller, the Trust Depositor or the Servicer to be adverse to the interests of any Noteholder shall have been employed in the selection of such Loan;

(dd) all required notifications, if any, have been given to the collateral agent, the paying agent and any other parties required by the Underlying Loan Agreement of, and all required consents, if any, have been obtained with respect to, the Seller’s assignment of such Loan and the Seller’s right, title and interest in the Related Property to the Trust Depositor, the assignment thereof to the Issuer and the Trustee’s security interest therein on behalf of the Noteholders;

(ee) the scheduled term to maturity of such Loan is no later than six months prior to the Legal Final Payment Date;

(ff) if such Loan is an Agented Loan, Co-Agented Loan or a Third Party Agented Loan:

(i) if the entity serving as the collateral agent of the security for all notes of the Obligor issued under the applicable Underlying Loan Agreement has changed from the time of the origination of the Loan, all appropriate assignments of the collateral agent’s rights in and to the collateral on behalf of the holders of the indebtedness of the Obligor under such facility have been executed and filed or recorded as appropriate prior to such Loan becoming a part of the Collateral;

(ii) except as otherwise provided in the related intercreditor agreement, the right to control certain actions of and replace the collateral agent and/or the paying agent of the Obligor’s indebtedness under the facility may be exercised by at least a majority in interest of all holders of such indebtedness;

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(iii) all required notifications, if any, have been given to the collateral agent, the paying agent and any other parties required by the underlying loan agreement of, and all required consents, if any, have been obtained with respect to, the Seller’s assignment of such Loan and the Seller’s right title and interest in the Related Property to the Trust Depositor, the assignment thereof to the Issuer and the Trustee’s security interest therein on behalf of the Noteholders; and

(iv) all indebtedness of the Obligor of the same priority within each facility is cross-defaulted, the Related Property securing such indebtedness is held by the collateral agent for the benefit of all holders of such indebtedness and all holders of such indebtedness (A) have an undivided pari passu interest in the collateral securing such indebtedness, (B) share in the proceeds of the sale or other disposition of such collateral on a pro rata basis and (C) may transfer or assign their right, title and interest in the Related Property;

(gg) all actions or additional actions (if any) necessary to perfect the security interest and assignment of such Loan and any material Related Property to the Trust Depositor, the Issuer, and the Trustee have been taken as of or prior to the Transfer Date of such Loan;

(hh) such Loan is not made to an Obligor doing business in the energy, clean energy or alternative energy sector;

(ii) such Loan shall not be a revolving line of credit or include any unfunded commitment; and

(jj) if such Loan is a floating rate Loan, such Loan either (i) has a credit spread over the applicable floating rate index of no less than 3% or (ii) a minimum total interest rate floor of at least 7.5%.

“Eligible Repurchase Obligations” means repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, in either case entered into with a depository institution or trust company (acting as principal) described in clause (c)(ii) of the definition of Permitted Investments.

“Enterprise Value” means, with respect to the Obligor of a Loan, as determined by the Servicer on a quarterly basis as follows:

(a) If such Obligor is a publicly-traded company, the public market capitalization of such company; or

(b) If such Obligor is a private company, a value based on (1) the market adjusted implied value of the most recent round of financing of such Obligor or (2) market multiples and the most recent financial statements of such Obligor;

provided that the Servicer may adjust the Enterprise Value of an Obligor based on such Obligor’s performance since the last round of financing.

“Error” shall have the meaning provided in Section 8.03(e).

“Event of Default” shall have the meaning specified in Section 5.01 of the Indenture.

“Excess Concentration Amounts” means, as to any Determination Date, Payment Date or Transfer Date, the sum of the following amounts (without duplication):

(a) the amount by which the aggregate Outstanding Loan Balance of all Loans made to any single Obligor (together with Affiliates thereof) in the Collateral exceeds five percent (5%) of the ECA Calculation Balance; plus

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(b) the amount by which the aggregate Outstanding Loan Balance of all Loans made to the five (5) largest Obligors (together, in each case, with Affiliates thereof) in the Collateral (based on the aggregate Outstanding Loan Balance of all Loans in the Collateral as of the Payment Date) exceeds twenty-three percent (23%) of the ECA Calculation Balance; plus

(c) the amount by which the aggregate Outstanding Loan Balance of all Loans made to the ten (10) largest Obligors (together, in each case, with Affiliates thereof) in the Collateral (based on the aggregate Outstanding Loan Balance of all Loans in the Collateral as of the Payment Date) exceeds forty-four percent (44%) of the ECA Calculation Balance;

(d) the amount by which the aggregate Outstanding Loan Balance for Technology Loans exceeds 40% of the ECA Calculation Balance;

(e) the amount by which the aggregate Outstanding Loan Balance for fixed rate Loans exceeds 85% of the ECA Calculation Balance;

(f) the amount by which the aggregate Outstanding Loan Balance for Loans with a Hercules Credit Score of Grade 3 or worse exceeds 35% of the ECA Calculation Balance;

(g) the amount by which the aggregate Outstanding Loan Balance for Loans that have more than 15% of their original loan balance due at maturity exceeds 20% of the ECA Calculation Balance;

(h) the amount by which the aggregate Outstanding Loan Balance for Life Sciences Loans that have an original interest only period greater than 24 months measured from the last credit action taken pursuant to the Credit and Collection Policy exceeds 25% of the ECA Calculation Balance;

(i) the amount by which the aggregate Outstanding Loan Balance for Loans that are second lien Loans exceeds 15% of the ECA Calculation Balance;

(j) the amount by which the aggregate Outstanding Loan Balance for Loans that are Participated Loans exceeds 15% of the ECA Calculation Balance;

(k) the amount by which the aggregate Outstanding Loan Balance for Loans with respect to which any Obligor material to the underwriting of such Loan does not have its headquarters, principal place of business or primary operations in the United States exceeds 20% of the ECA Calculation Balance; and

(l) the amount by which the aggregate Outstanding Loan Balance for Loans that are Participated Loans with respect to which the administrative agent on the underlying Loans, other than the Seller or an affiliate thereof, does not have an investment grade corporate rating issued by a national recognized statistical rating organization, exceeds 5% of the ECA Calculation Balance.

provided, for the avoidance of doubt, that the Outstanding Loan Balance of all Loans made to any single Obligor (together with Affiliates thereof) will be assigned to the category above that results in the greatest excess amount and will not be included in more than one category for any date of determination.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Amounts” means (a) any amount received by, on or with respect to any Loan in the Collateral, which amount is attributable to the payment of any tax, fee or other charge imposed by any Governmental Authority on such Loan, (b) any amount representing escrows relating to taxes, insurance and other amounts in connection with any Loan which is held in an escrow account for the benefit of the related Obligor and the secured party pursuant to escrow

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arrangements, (c) any amount with respect to any Loan substituted, sold, retransferred or replaced under Sections 2.04, 2.05, 2.06 or 11.01, to the extent such amount is attributable to a time after the effective date of such substitution, sale, retransfer or replacement, (d) any origination fee retained by the Seller in connection with the origination of any Loan, and (e) any amount permitted to be retained by the Servicer as an Excluded Amount hereunder.

“FDIC” means the Federal Deposit Insurance Corporation and any successor thereto.

“Finance Charges” means, with respect to any Loan, any interest or finance charges owing by an Obligor pursuant to or with respect to such Loan.

“First Ratings Trigger Date” means, in the event that the Rating is not obtained on or before the forty-fifth (45th) day following the Closing Date, the forty-sixth (46th) day following the Closing Date.

“Foreclosed Property” means Related Property acquired by the Issuer or a subsidiary thereof for the benefit of the Noteholders in foreclosure or by other legal process.

“Foreclosed Property Disposition” means the final sale of a Foreclosed Property or of Repossessed Property. The proceeds of any “Foreclosed Property Disposition” constitute part of the definition of Liquidation Proceeds.

“Global Note” shall have the meaning provided in the Indenture.

“Governmental Authority” means, with respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person or its property.

“Hercules” means Hercules Capital, Inc., a Maryland corporation, together with its successors in interest.

“Hercules Credit Score” means, for any Obligor, the internal credit rating grade assigned to such Obligor by the Seller in accordance with the Credit and Collection Policy.

“Holder” means (a) with respect to a Certificate, the Person in whose name such Certificate is registered in the Certificate Register, and (b) with respect to a Note, the Person in whose name such Note is registered in the Note Register; provided that a Beneficial Owner of a Note shall be deemed a Holder of such Note as provided in Section 13.17.

“Indebtedness” means, with respect to any Person at any date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or which is evidenced by a note, bond, debenture or similar instrument, (b) all obligations of such Person under capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person, and (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof.

“Indenture” means the Indenture, dated as of the Closing Date, between the Issuer and the Trustee, as such agreement may be amended, modified, waived, supplemented or restated from time to time.

“Independent” means, when used with respect to any specified Person, such Person (a) is in fact independent of the Issuer, any other obligor on the Notes, the Trust Depositor and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Trust Depositor or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuer, any such other obligor, the Trust Depositor or any Affiliate of any of the foregoing Persons as an officer, employee, trustee, partner, director or person performing similar functions; provided that a Person that otherwise satisfies the

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requirements of clauses (a) through (c) of this definition, but is a director, officer or manager of a bankruptcy remote special purpose Affiliate of Hercules, will be deemed to be Independent for purposes hereof.

“Independent Accountants” shall have the meaning provided in Section 9.05.

“Ineligible Loan” shall have the meaning provided in Section 11.01.

“Initial Note Principal Balance” means $150,000,000.

“Initial Cutoff Date” means May 31, 2022.

“Initial Loans” means those Loans conveyed to the Issuer on the Closing Date and identified for inclusion in the Collateral on the initial List of Loans required to be delivered pursuant to Section 2.02(d).

“Initial Loan Assets” means any assets acquired by the Issuer from the Trust Depositor on the Closing Date pursuant to Section 2.01, which assets shall include the Trust Depositor’s right, title and interest in the following:

(i) the Initial Loans listed in the initial List of Loans and all monies due, to become due or paid in respect thereof accruing on and after the Cutoff Date and all Insurance Proceeds, Liquidation Proceeds and other recoveries thereon, in each case as they arise after the Cutoff Date;

(ii) all security interests and Liens and Related Property subject thereto from time to time purporting to secure payment by Obligors under such Loans;

(iii) all guaranties, indemnities and warranties, and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Loans;

(iv) the Transaction Accounts, together with all cash and investments in each of the foregoing;

(v) all collections and Records (including Computer Records) with respect to the foregoing;

(vi) all documents relating to the applicable Loan Files; and

(vii) all income, payments, proceeds and other benefits of any and all of the foregoing, including but not limited to, all accounts, cash and currency, chattel paper, electronic chattel paper, tangible chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles, instruments, commercial tort claims, deposit accounts, inventory, investment property, letter of credit rights, software, supporting obligations, accessions, and other property consisting of, arising out of, or related to the foregoing, but excluding any Excluded Amount with respect thereto.

“Initial Rate” means 4.95% per annum.

“Insolvency Event” means, with respect to a specified Person, (i) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the ordering of the winding-up or liquidation of such Person’s affairs, which decree or order shall remain unstayed or undismissed and in effect for a period of 60 consecutive days; or (ii) the commencement by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect, or the consent by such Person to the

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entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or the taking of possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.

“Insolvency Laws” means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

“Insolvency Proceeding” means any case, action or proceeding before any court or other Governmental Authority relating to any Insolvency Event.

“Insurance Policy” means, with respect to any Loan, an insurance policy covering liability and physical damage to or loss of the applicable Related Property, including, but not limited to, title, hazard, life, accident and/or flood insurance policies.

“Insurance Proceeds” means any amounts payable or any payments made on or with respect to a Loan or the Related Property under any Insurance Policy which are not applied or paid by the Obligor, the Servicer or, in the case of Co-Agented Loans or Third Party Agented Loans, the party primarily responsible for servicing such Loans, as applicable, to the restoration or repair of the Related Property or released to the Obligor, another creditor or any other Person in accordance with the Applicable Law, the Required Loan Documents, the Credit and Collection Policy, the Servicing Standard and this Agreement, net of costs of collection.

“Interest Adjustment” means (a) from and including the First Ratings Trigger Date to but excluding the earlier to occur of the Rating Date and the Second Ratings Trigger Date, 0.50% per annum and (b) from and including the Second Ratings Trigger Date to but excluding the Rating Date, 1.00% per annum.

“Interest Amount” means, for each Interest Period, the sum of (A) product of (i) the Interest Rate for such Interest Period, (ii) the Outstanding Principal Balance of the Notes as of the first day of such Interest Period (after giving effect to all distributions made on such day) and (iii) one-twelfth (or, in the case of the first Interest Period, a fraction, the numerator of which is the number of days from and after the Closing Date to and including the day before the first Payment Date, and the denominator of which is 360) and (B) all unpaid Interest Shortfalls from any prior Payment Dates (and interest accrued thereon at the Interest Rate, to the extent permitted by law).

“Interest Collections” means the aggregate of:

(a) all amounts deposited into the Collection Account in respect of:

(i) all payments received on or after the Cutoff Date on account of interest on the Loans (including Finance Charges and other fees) and all late payment, default and waiver charges; and

(ii) the interest portion of any amounts received (x) in connection with the purchase or repurchase of any Loan (but which shall exclude interest on Loans accrued to the date of acquisition thereof by the Issuer purchased with Principal Collections) and the amount of any adjustment for Substitute Loans and (y) as Servicing Advances (if any); and

(iii) amounts transferred from the Reserve Account or as a result of the amount on deposit in the Reserve Account being in excess of the Reserve Account Required Balance; plus

(b) investment earnings on funds invested in Permitted Investments in the Transaction Accounts (other than the Reserve Account); minus

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(c) the amount of any losses incurred in connection with investments in Permitted Investments in the Transaction Accounts.

“Interest Period” means, for the first Payment Date, the period commencing on the Closing Date and ending on and including the day before the first Payment Date; and thereafter, the period commencing on a Payment Date and ending on and including the day before the next Payment Date.

“Interest Rate” means the annual rate of interest payable with respect to the Notes, which shall be equal to (a) from the Closing Date to but excluding the Rating Date, the sum of the Initial Rate plus the Interest Adjustment and (b) from and after the Rating Date, the Adjusted Interest Rate.

“Interest Shortfall” means, with respect to the Notes and any Payment Date, as applicable, an amount equal to the excess, if any, of (a) the Interest Amount over (b) the amount of interest actually paid to the Notes.

“Issuer” means the trust created by the Trust Agreement and funded pursuant to this Agreement.

“KBRA” means Xxxxx Bond Rating Agency, LLC and any successor thereto.

“Legal Final Payment Date” means July 20, 2031.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing (including any UCC financing statement or any similar instrument filed against a Person’s assets or properties).

“Life Sciences Loan” means a Loan made to an Obligor that is a life sciences company, including, but not limited to, a company involved in drug discovery and development, drug delivery, medical devices and equipment, biotechnology tools, specialty pharmaceuticals and therapeutic, diagnostic and surgical devices.

“Liquidation Expenses” means, with respect to any Loan, the aggregate amount of all out-of-pocket expenses reasonably incurred by the Servicer (including amounts paid to any Subservicer) and any reasonably allocated costs of counsel (if any), in each case in accordance with the Servicer’s customary procedures in connection with the repossession, refurbishing and disposition of any Related Property securing such Loan upon or after the expiration or earlier termination of such Loan and other out-of-pocket costs related to the liquidation of any such Related Property, including the attempted collection of any amount owing pursuant to such Loan if it is a Defaulted Loan, and, if requested by the Trustee, the Servicer must provide to the Trustee a breakdown of the Liquidation Expenses for any Loan along with any supporting documentation therefor.

“Liquidation Proceeds” means, with respect to any Defaulted Loan, whatever is receivable or received when such Loan or the Related Property is sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all amounts representing late fees and penalties relating thereto net of, without duplication, (a) Liquidation Expenses relating to such Loan or Related Property reimbursed to the Servicer therefrom pursuant to the terms of this Agreement and (b) amounts required to be released to other creditors, including any other costs, expenses and taxes, or the related Obligor or grantor pursuant to applicable law or the governing Required Loan Documents.

“Liquidation Report” shall have the meaning provided in Section 5.03(d).

“List of Loans” means the list identifying each Loan constituting part of the Loan Assets, which list shall consist of the initial List of Loans reflecting the Initial Loans transferred to the Issuer on the Closing Date attached to this Agreement as Exhibit G, together with any Subsequent List of Loans amending the most current List of Loans

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reflecting any Additional Loans and Substitute Loans transferred to the Issuer on the related Additional Loan Cutoff Date or Substitute Loan Cutoff Date, as applicable (together with, if applicable, a deletion from such list of the related Loan or Loans with respect to which a Substitution Event has occurred), and which list in each case (a) identifies by account number each Loan included in the Collateral, and (b) sets forth as to each such Loan (i) the Outstanding Loan Balance as of the Cutoff Date in the case of the Initial Loans, the related Additional Loan Cutoff Date in the case of Additional Loans and the related Substitute Loan Cutoff Date in the case of Substitute Loans, (ii) the maturity date (iii) the Loan Type, (iv) whether such Loan is a Co-Agented Loan or Third-Party Agented Loan (and the name of the agent thereunder), (v) whether such Loan is a Noteless Loan or a Participated Loan and (vi) whether evidence of filing of UCC-1 financing statements naming the Seller as secured party with respect to such Loan are available.

“Loan” means, to the extent transferred by the Trust Depositor to the Issuer, an individual loan to an Obligor, or portion thereof made by the Seller including, but not limited to, Agented Loans, Co-Agented Loans, Third Party Agented Loans and Participated Loans.

“Loan Assets” means, collectively and as applicable, the Initial Loan Assets, the Additional Loan Assets and the Substitute Loan Assets, as applicable.

“Loan File” means, with respect to any Loan and Related Property, (a) each of the Required Loan Documents and (b) duly executed originals (to the extent indicated on the Annex A to the List of Loans) or copies (including electronic copies) of any credit agreement, intercreditor agreement, subordination agreement, UCC financing statements (or similar instruments) and any amendments to any of the foregoing, in each case, identified on Annex A to the List of Loans with respect to such Loan and Related Property.

“Loan Rate” means, for each Loan and Collection Period, the current cash pay interest rate for such Loan in such period, as specified in the related Underlying Note, Underlying Loan Agreement or related Required Loan Documents.

“Loan Type” means, with respect to any Loan, means the characterization of such Loan as a Technology Loan or Life Sciences Loan.

“Lockbox Account” means the segregated account so designated and established and maintained pursuant to Section 7.01(a).

“Lockbox Bank” shall have the meaning provided in Section 7.01.

“Majority Noteholders” means, as of any date of determination, the Noteholders evidencing at least 51% of the Aggregate Outstanding Principal Balance of all Notes.

“Make-Whole Premium” means the positive difference, if any, between (a) the present value, computed using a discount rate equal to the Treasury Rate plus 0.50%, of all interest (less the Interest Amount) and principal that would otherwise be expected to be payable on the Notes assuming such Notes do not amortize and are redeemed in full at the end of the Reinvestment Period at a price of 100% of the Aggregate Outstanding Principal Balance as of such date less (b) the Aggregate Outstanding Principal Balance of the Notes as of the Redemption Date.

“Master Collection Account” means a deposit account at (a) Xxxxx Fargo Bank, National Association or (b) another Qualified Institution, in the name of Hercules, identified in the Master Collection Account Control Agreement.

“Master Collection Account Agency Agreement” means that certain Master Collection Account Agency Agreement, to be dated as of a future date, among the Master Collection Account Agent, Hercules, Hercules Capital Funding Trust 2022-1, the Trustee and any parties joined thereto pursuant to the execution of a Joinder Agreement (as defined therein), which agreement shall be in form and substance reasonably satisfactory to the Majority Noteholders.

“Master Collection Account Agent” means Xxxxx Fargo Bank, National Association, or a national banking association, banking corporation or trust company organized and doing business under the laws of any state or the United States

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that has an unsecured and unguaranteed long-term debt obligations rating of at least investment grade or better by the Rating Agency or another nationally recognized statistical rating organization or otherwise does not result in a withdrawal or reduction in rating by the Rating Agency on the Notes, in its role as collateral trustee for the parties to the Master Collection Account Agency Agreement.

“Master Collection Account Control Agreement” means that certain Account Control Agreement, dated as of a future date, among Hercules, the bank at which the Master Collection Account is held, as bank, and the Master Collection Account Agent, with respect to the Master Collection Account, which agreement shall be in form and substance reasonably satisfactory to the Majority Noteholders.

“Monthly Report” shall have the meaning provided in Section 9.01.

“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.

“Nonrecoverable Advance” means any Scheduled Payment Advance or Servicing Advance, as applicable, previously made in respect of a Loan or any Related Property that, as determined by the Servicer in its reasonable, good faith judgment, will not be ultimately recoverable from subsequent payments or collections with respect to the applicable Loan including, without limitation, payments or reimbursements from the related Obligor, Insurance Proceeds or Liquidation Proceeds on or in respect of such Loan or Related Property.

“Note” means any one of the notes of the Issuer, executed and authenticated in accordance with the Indenture (and including any Additional Notes issued thereunder).

“Note Purchase Agreement” means the Note Purchase Agreement, dated June 22, 2022, by and among the Seller, the Trust Depositor, the Servicer, the Issuer and the Noteholders.

“Note Register” shall have the meaning provided in Section 4.02(a) of the Indenture.

“Noteholder” means each Person in whose name a Note is registered in the Note Register; provided that a Beneficial Owner of a Note may be deemed a Holder of such Note as provided in Section 13.17.

“Noteless Loan” means any Loan that, pursuant to the terms of the related credit agreement (or equivalent document), is not evidenced by a note.

“Notice of Substitution” shall have the meaning provided in Section 2.06.

“Obligor” means, with respect to any Loan, any Person or Persons obligated to make payments pursuant to or with respect to such Loan, including any guarantor thereof, but excluding, in each case, any such Person that is an obligor or guarantor that is in addition to the primary obligors or guarantors with respect to the assets, cash flows or credit of which the related Loan is principally underwritten.

“Officer’s Certificate” means a certificate delivered to the Trustee signed by a Responsible Officer of (i) the member of the Trust Depositor, (ii) the Servicer, or (iii) the Owner Trustee, the Administrator, or any other Person acting on behalf of the Issuer, as required by this Agreement or any other Transaction Document.

“Opinion of Counsel” means a written opinion of counsel, who may be outside counsel, or internal counsel (except with respect to federal securities law, tax law, bankruptcy law or UCC matters), for the Issuer, the Trust Depositor or the Servicer, including Dechert LLP or other counsel reasonably acceptable to the Owner Trustee or the Trustee, as the case may be.

“Optional Redemption” means a redemption of the Notes pursuant to Section 10.01 of the Indenture.

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“Original Trust Agreement” shall have the meaning provided in Section 2.01.

“Outstanding” shall have the meaning provided in Section 1.01 of the Indenture.

“Outstanding Loan Balance” of a Loan means, with respect to any date of determination, the outstanding principal amount of such Loan.

“Outstanding Principal Balance” means, as of date of determination and with respect to any Notes, the original principal amount of such Notes on the Closing Date, as reduced by all amounts paid by the Issuer with respect to such principal amount up to such date.

“Owner Trustee” means the Person acting, not in its individual capacity, but solely as Owner Trustee, under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement. The Owner Trustee will initially be Wilmington Trust, National Association.

“Owner Trustee Cap” means the portion of the Administrative Expense Cap reserved for the Owner Trustee, subject to an annual maximum amount of $100,000.

“Participated Loans” means the Loans in which the Seller holds a participation interest as of the Closing Date, the related Additional Loan Cutoff Date or the related Substitute Loan Cutoff Date (if after the Closing Date), as the case may be, which interest has been assigned to the Trust Depositor and the Issuer pursuant to the Transfer and Servicing Agreements.

“Paying Agent” has the meaning provided in the Preamble.

“Payment Date” means the 20th day of each month, commencing in August 2022, or if such day is not a Business Day, on the next succeeding Business Day.

“Percentage Interest” means, for the Holder of any Note of any class, the fraction, expressed as a percentage, the numerator of which is the then current Outstanding Principal Balance represented by such Note and the denominator of which is the then current Outstanding Principal Balance of all Notes.

“Permitted Investments” means on any date of determination, book-entry securities, negotiable instruments or securities represented by instruments in registered form for U.S. federal income tax purposes (or in registered or bearer form if not a “registered-required obligation” as defined in Section 163(f)(2)(A)) with maturities not exceeding the next Payment Date that evidence:

(i) direct obligations of, and obligations fully guaranteed by, the United States or any agency or instrumentality of the United States;

(ii) demand deposits, time deposits or certificates of deposit of any depository institution (including any affiliate of the Trust Depositor, the Servicer, the Trustee or the Owner Trustee) or trust company incorporated under the laws of the United States or any state thereof or the District of Columbia (or any domestic branch of a foreign bank) and subject to supervision and examination by Federal or state banking or depository institution authorities (including depository receipts issued by any such institution or trust company as custodian with respect to any obligation referred to in clause (i) above or a portion of such obligation for the benefit of the holders of such depository receipts); provided that at the time of the investment or contractual commitment to invest therein (which shall be deemed to be made again each time funds are reinvested following each Payment Date), the commercial paper or other short-term senior unsecured debt obligations (other than such obligations the rating of which is based on the credit of a person other than such depository institution or trust company) of such depository institution or trust company shall have a credit rating from Moody’s of “P-1” or from another nationally recognized statistical rating

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organization in its highest investment category, in each case, as notified to the Trustee in writing by the Issuer (or the Servicer on its behalf);

(iii) commercial paper (including commercial paper of any affiliate of the Trust Depositor, the Servicer, the Trustee or the Owner Trustee) having, at the time of the investment or contractual commitment to invest therein, a rating from Moody’s of “P-1” or from another nationally recognized statistical rating organization in its highest investment category, in each case, as notified to the Trustee in writing by the Issuer (or the Servicer on its behalf);

(iv) investments in money market funds (including funds for which the Trust Depositor, the Servicer, the Trustee or the Owner Trustee or any of their respective affiliates is investment manager or advisor) having a rating from Moody’s of “Aaa (mf)” or from another nationally recognized statistical rating organization in its highest investment category, in each case, as notified to the Trustee in writing by the Issuer (or the Servicer on its behalf);

(v) banker’s acceptances issued by any depository institution or trust company referred to in clause (ii) above; and

(vi) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, in either case entered into with a depository institution or trust company (acting as principal) referred to in clause (ii) above.

The Trustee may purchase or sell to itself or an Affiliate, as principal or agent, the Permitted Investments described above.

“Permitted Liens” means

(i) with respect to the interest of the Seller, the Trust Depositor and the Issuer in the Loans included in the Collateral: (a) Liens in favor of the Trust Depositor created pursuant to the Sale and Contribution Agreement and transferred to the Issuer pursuant hereto, (b) Liens in favor of the Issuer created pursuant to this Agreement, (c) Liens in favor of the Trustee created pursuant to the Indenture and/or this Agreement, and (d) Liens, if any, which have priority over first priority perfected security interests in the Loans or any portion thereof under the UCC or any other Applicable Law; and

(ii) with respect to the interest of the Seller, the Trust Depositor and the Issuer in the other Collateral (including any Related Property): (a) materialmen’s, warehousemen’s, mechanics’ and other Liens arising by operation of law in the ordinary course of business for sums not due or sums that are being contested in good faith, (b) purchase money security interests in certain items of equipment, (c) Liens for state, municipal and other local taxes if such taxes shall not at the time be due and payable or the validity or amount thereof is currently being contested by an appropriate Person in good faith by appropriate proceedings, (d) other customary Liens permitted with respect thereto consistent with the Credit and Collection Policy or the Servicing Standard, (e) Liens in favor of the Trust Depositor created by the Seller and transferred by the Trust Depositor to the Issuer pursuant to this Agreement, (f) Liens in favor of the Issuer created pursuant to this Agreement, (g) Liens in favor of the Trustee created pursuant to the Indenture and/or this Agreement, and (h) with respect to Agented Loans, Co-Agented Loans and Third Party Agented Loans, Liens in favor of the lead agent, the collateral agent or the paying agent on behalf of all holders of indebtedness of such Obligor under the related facility.

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“Person” means any individual, corporation, estate, partnership, business or statutory trust, limited liability company, sole proprietorship, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof or other entity.

“Physical Note” shall have the meaning provided in the Indenture.

“Pool Balance” means, as of any date of determination, the Aggregate Outstanding Loan Balance minus (a) the Outstanding Loan Balance of all Defaulted Loans and (b) the Outstanding Loan Balance of all Ineligible Loans required to be repurchased by the Seller pursuant to Section 11.01.

“Predecessor Servicer Work Product” shall have the meaning provided in Section 8.03(e).

“Prepayments” means any and all (a) prepayments, including prepayment premiums, on or with respect to a Loan (including, with respect to any Loan and any Collection Period, any Scheduled Payment, Finance Charge or portion thereof that is due in a subsequent Collection Period that the Servicer has received and expressly permitted the related Obligor to make in advance of its scheduled due date, and that will be applied to such Scheduled Payment on such due date), (b) Liquidation Proceeds, and (c) Insurance Proceeds.

“Principal Collections” means amounts deposited into the Collection Account in respect of payments received on or after the Cutoff Date in the case of the Initial Loans, the applicable Additional Loan Cutoff Date in the case of any Additional Loans and the applicable Substitute Loan Cutoff Date in the case of any Substitute Loans on account of principal of the Loans, including (without duplication):

(a) the principal portion of:

(i) any Scheduled Payments and Prepayments; and

(ii) any amounts received other than Interest Collections (1) in connection with the purchase or repurchase of any Loan (and any related Substitution Deficit Amounts) and (2) as Servicing Advances (if any);

(b) all Curtailments;

(d) all Sale Proceeds;

(e) Insurance Proceeds (other than amounts to be applied to the restoration or repair of the Related Property, or released or to be released to the Obligor or others);

(f) any proceeds from any Related Property securing the Loans (other than amounts released or to be released to the Obligor or others);

(g) all funds transferred from the Reinvestment Account in accordance with the Transaction Documents (other than investment earnings);

(h) following a Rapid Amortization Event or on the Legal Final Payment Date, all funds transferred from the Reserve Account; and

(i) all other amounts not specifically included in Interest Collections.

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“Principal Distribution Amount” means, for any Payment Date, an amount equal to the greater of (A) the Outstanding Principal Balance of the Notes (calculated immediately prior to such Payment Date) minus the Borrowing Base and (B) zero.

“Priority of Payments” means, collectively, the payments made on each Payment Date in accordance with Section 7.06(a), Section 7.06(b) and Section 7.06(c), as applicable.

“Proceeds” means, with respect to any Collateral, whatever is receivable or received when such Collateral is sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all rights to payment with respect to any insurance relating to such Collateral.

“Qualified Additional Loan” means a Loan which is an Eligible Loan and meets each of the following additional criteria, as of its date of acquisition by the Issuer:

(a) the sum of (a) the product of (i) the Outstanding Loan Balance of such Loan multiplied by (ii) the Advance Rate, plus (b) accrued and unpaid interest and fees thereon is greater than or equal to the cash amount paid by the Issuer for such Additional Loan;

(b) immediately following the Transfer Date of such Additional Loan, the weighted average Cash Yield Rate of all Loans as of the applicable Transfer Date shall not be decreased by more than 100 basis points from the weighted average Cash Yield Rate of the Initial Loans as of the Initial Cutoff Date; and

(c) immediately prior to and following the Transfer Date of any Additional Loan, no Event of Default is occurring and continuing.

“Qualified Institution” means (a) the corporate trust department of the Trustee, or (b) a depository institution organized under the laws of the United States or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), that has either a long-term unsecured debt rating of at least “Baa3” from Moody’s (or another nationally recognized statistical rating organization in one of its generic rating categories that signifies investment grade) or a long-term unsecured debt rating, a short-term unsecured debt rating or a certificate of deposit rating from another nationally recognized statistical rating agency acceptable to KBRA, and whose deposits are insured by the FDIC.

“Qualified Substitute Loan” means a Loan which is an Eligible Loan and meets each of the following additional criteria, as of its date of substitution:

(a) such Substitute Loan is of substantially similar or better credit quality to the Loan it will replace (as measured by reference to the Hercules Credit Score of the replaced Loan at the time such Loan was initially transferred to the Issuer);

(b) immediately following the Transfer Date of such Substitute Loan, the weighted average Cash Yield Rate of all Loans as of the applicable Transfer Date shall not be decreased by more than 100 basis points from the weighted average Cash Yield Rate of the Initial Loans as of the initial Cutoff Date;

(c) the Outstanding Loan Balance of such Substitute Loan (or, if more than one Substitute Loan will replace a Loan or Loans, the sum of the Outstanding Loan Balances of such Substitute Loans) is substantially similar to the Loan it will replace (and in the event that such Substitute Loan has an Outstanding Loan Balance that is less than that of the replaced Loan(s), the applicable Substitution Deficit Amount will be paid to the Issuer, for deposit into the Collection Account, at the time of substitution), and in any case will not be more than 110% of the Aggregate Outstanding Loan Balance(s) of the Loan(s) being replaced;

(d) the scheduled term to maturity of such Substitute Loan (or, if more than one Substitute Loan

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will replace a Loan or Loans in the Loan Pool, the combined effect of such Substitute Loans) will not cause the remaining weighted average life of the Aggregate Outstanding Loan Balance (measured immediately prior to the removal of the Loans related to such substitution) to increase by more than four months; provided that, in the case of any substitution made after the Reinvestment Period Termination Date, such substitution will not cause the remaining weighted average life of the Aggregate Outstanding Loan Balance (measured immediately prior to the removal from of the Loans related to such substitution) to increase.

“Quarterly Report” has the meaning provided in Section 9.02.

“Rapid Amortization Event” shall mean the occurrence of any of the following:

(i) the aggregate Outstanding Loan Balance of all Delinquent Loans and Restructured Loans that would constitute Delinquent Loans had such Loans not become Restructured Loans exceeds ten percent (10%) of the Aggregate Outstanding Loan Balance for a period of three (3) consecutive Payment Dates;

(ii) the aggregate Outstanding Loan Balance of Defaulted Loans exceeds, for a period of three (3) consecutive Payment Dates, 5% of the initial Pool Balance determined as of the Closing Date;

(iii) the Aggregate Outstanding Principal Balance exceeds the Borrowing Base for a period of three (3) consecutive Payment Dates (after giving effect to all distributions on such Payment Dates);

(iv) the Loans in the Collateral consist of Loans to 10 or fewer Obligors (together, in each case, with Affiliates thereof);

(v) the occurrence and continuance of an Event of Default; and

(vi) the occurrence and continuation of a Servicer Default.

“Rating Agency” means each of KBRA and any other nationally recognized statistical rating organization reasonably acceptable to the Majority Noteholders, so long as such Persons maintain a rating on any of the Notes; and if any of KBRA or such other organization (if any) no longer maintains a rating on any of the Notes, such other nationally recognized statistical rating organization, if any, selected by the Trust Depositor and reasonably acceptable to the Majority Noteholders.

“Rating Date” means the date on which a rating of at least BBB is assigned to the Notes pursuant to Section 13.02.

“Record Date” means, with respect to each Payment Date, (i) for Global Notes, the close of business on the Business Day immediately preceding such Payment Date and (ii) for Physical Notes, the close of business on the last Business Day of the month immediately preceding the month in which such Payment Date occurs.

“Records” means all documents, books, records and other information (including without limitation, Computer Records, computer programs, tapes, disks, data processing software and related property and rights) executed in connection with the origination or acquisition of the Loans or maintained with respect to the Loans and the related Obligors that the Seller or the Servicer have generated, in which the Seller, the Trust Depositor, the Issuer, the Trustee or the Servicer have acquired an interest pursuant to the Transfer and Servicing Agreements or in which the Seller, the Trust Depositor, the Issuer, the Trustee or the Servicer have otherwise obtained an interest to the extent transferable, and subject to any confidentiality and/or transferability restrictions.

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“Redemption Date” means any Business Day designated as such by the Issuer in connection with an Optional Redemption.

“Redemption Price” means, in connection with an Optional Redemption, pursuant to Section 10.01 of the Indenture, an amount equal to the sum (without duplication) of: (i) the then Outstanding Principal Balance of the Notes to be redeemed plus accrued and unpaid interest thereon to but excluding the Redemption Date and all other amounts accrued and unpaid with respect thereto; plus (ii) the Applicable Premium; plus (iii) all administrative and other fees, expenses, advances and other amounts accrued and payable or reimbursable in accordance with the Priority of Payments (including fees and expenses, if any, incurred by the Trustee and the Servicer in connection with any sale of Loans in connection with an Optional Redemption); minus (iv) all amounts on deposit in the Transaction Accounts available to satisfy the foregoing amounts.

“Reference Date” means the day of each month that is the third (3rd) Business Day prior to a Payment Date.

“Reinvestment Account” means the interest bearing trust account so designated and established and maintained pursuant to Section 7.04(a).

“Reinvestment Period” means the period beginning on the Closing Date to but excluding the Reinvestment Period Termination Date.

“Reinvestment Period Termination Date” means the earliest to occur of (a) the Payment Date occurring in July 2024, (b) the occurrence of a Rapid Amortization Event or a Reinvestment Period Early Termination Event and (c) the day of any optional redemption of the Notes. For the avoidance of doubt, there will only be one Reinvestment Period, and such period cannot be re-commenced or continue after the occurrence of a Rapid Amortization Event or any Reinvestment Period Early Termination Event.

“Reinvestment Period Early Termination Event” means, as of any date of determination, the aggregate Outstanding Loan Balance of all Defaulted Loans (including any Defaulted Loans optionally sold or substituted by the Issuer or previously liquidated by the Servicer, in each case measured at the time each such Loan becomes a Defaulted Loan) exceeds 13.5% of the Pool Balance as of the Closing Date.

“Related Loan” means, with respect to any Loan, one or more related revolving lines of credit or other related loans to the same Obligor, which may include future funding obligations, made by Hercules, an Affiliate of the Hercules, or an unaffiliated third party.

“Related Property” means, with respect to any Loan and as applicable in the context used, the interest of the Obligor, or the interest of the Seller, Trust Depositor or Issuer under the Loan, in any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Loan (including, without limitation, a pledge of the stock, membership or other ownership interests in the Obligor, but excluding any warrant interest in an Obligor held by the Seller or any of its Affiliates other than the Issuer or Trust Depositor), including all Proceeds from any sale or other disposition of such property or other assets.

“Repossessed Property” means items of Related Property taken in the name of the Issuer or a subsidiary thereof as a result of legal action enforcing the Lien on the Related Property resulting from a default on the related Loan.

“Required Loan Documents” means, with respect to:

(a) all Loans in the aggregate:

(i) a blanket assignment of all of the Seller’s and Trust Depositor’s right, title and interest in and to all Related Property securing the Loans at any time transferred to the Issuer including, without limitation, all rights under applicable guarantees and Insurance Policies;

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(ii) irrevocable powers of attorney of the Seller, the Trust Depositor and the Issuer to the Trustee to execute, deliver, file or record and otherwise deal with the Related Property for the Loans at any time transferred to the Issuer. The powers of attorney will be delegable by the Trustee to the Servicer and any Successor Servicer and will permit the Trustee or its delegate to prepare, execute and file or record UCC financing statements and notices to insurers;

(iii) blanket UCC-1 financing statements in respect of the Loans to be transferred to the Issuer as Collateral and naming the Issuer and the Trustee, as assignee of the Issuer, as “Secured Party” and the Trust Depositor as the “Debtor”;

(b) for each Loan (provided, however, that in the case of each Participated Loan, in each case, as indicated on the List of Loans, to the extent in the possession of the Seller or reasonably available to the Seller, copies of all documents and instruments described in clause (b)(y), with respect to such Participated Loan): (x) other than in the case of a Noteless Loan or Participated Loan, the original or, if accompanied by a “lost note” affidavit and indemnity, a copy of the Underlying Note, endorsed by the prior holder of record either in blank or to the Trustee (and evidencing an unbroken chain of endorsements from the prior holder thereof evidenced in the chain of endorsements to the Trustee), with any endorsement to the Trustee to be in the following form: “U.S. Bank Trust Company, National Association, its successors and assigns, as Trustee under the Indenture, relating to Hercules Capital Funding Trust 2022-1,” (y) in the case of a Participated Loan, a copy of each transfer document or instrument relating to such Participated Loan evidencing the assignment of such Participated Loan to the Seller, from the Seller to the Trust Depositor and from the Trust Depositor to the Trustee or in blank and (z) in the case of a Noteless Loan, a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan from the Seller to the Trust Depositor and from the Trust Depositor to the Trustee or in blank;

“Required Payments” shall mean each of the items described in clauses 1 through 4 of Section 7.06(a).

“Reserve Account” means the interest bearing trust account so designated and established and maintained pursuant to Section 7.02(a).

“Reserve Account Required Balance” shall mean, as of any Payment Date, an amount equal to 3.0% of the Aggregate Outstanding Principal Balance of the Notes on such date after taking into account all amounts applied to the Aggregate Outstanding Principal Balance on such date.

“Reserve Available Funds” means all amounts deposited into the Collection Account from the Reserve Account pursuant to Section 7.02.

“Responsible Officer” means, when used with respect to (a) the Owner Trustee or the Trustee, any officer assigned to the Corporate Trust Office with responsibility for administration of the transactions contemplated by the Transaction Documents, including any Chief Executive Officer, President, Executive Vice President, Vice President, Assistant Vice President, Secretary, any Assistant Secretary, Financial Services Officer, trust officer or any other officer of the Owner Trustee or the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and, in each case, responsible for the administration of this Agreement and the other Transaction Documents, (b) the Trust Depositor, the Seller, the Administrator, the Servicer or the Backup Servicer, the President, Chief Executive Officer, Executive Vice President or any Vice President thereof who is also a Servicing Officer of such Person or of the sole member of such Person, as applicable and (c) with respect to the Issuer, a Responsible Officer of the Trust Depositor, Administrator, Servicer or Owner Trustee.

“Restructured Loan” means any Loan (including any portion of a Loan) that has been, or in accordance with the Credit and Collection Policy is required to be, modified or restructured to extend the maturity thereof or reduce the amount (other than by reason of the repayment thereof) or extend the time for payment of principal thereof, or otherwise

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modify the payment terms thereof, in each case as a result of the Obligor’s material financial underperformance, distress or default. Such Loan shall cease to be a Restructured Loan when such Loan has been performing for at least six (6) consecutive calendar months since the date the most recent modification was made and is no longer required to be so modified or restructured in accordance with the Credit and Collection Policy.

“Sale and Contribution Agreement” means the Sale and Contribution Agreement, dated as of the date hereof, between the Seller and the Trust Depositor, as such agreement may be amended, modified, waived, supplemented or restated from time to time.

“Sale Proceeds” means all proceeds received as a result of sales of Loans (other than Defaulted Loans) pursuant to this Agreement, net of any sales, brokerage and related administrative or sales expenses of the Servicer or the Trustee in connection with any such sale.

“Scheduled Payment” means, with respect to any Loan, each payment of principal and/or interest scheduled to be made by the related Obligor under the terms of such Loan after (a) in the case of the Initial Loans, the Cutoff Date, (b) in the case of Additional Loans, the Additional Loan Cutoff Date or (c) in the case of Substitute Loans, the related Substitute Loan Cutoff Date, as adjusted pursuant to the terms of the related Underlying Note and/or Required Loan Documents.

“Scheduled Payment Advance” means, with respect to any Payment Date, the amounts, if any, deposited by the Servicer in the Collection Account for such Payment Date in respect of Scheduled Payments (or portions thereof) pursuant to Section 5.09.

“Second Ratings Trigger Date” means, in the event that the Rating is not obtained on or before the ninetieth (90th) day following the Closing Date, the ninety-first (91st) day following the Closing Date.

“Secured Parties” means, collectively, the Noteholders, the Trustee, the Servicer, the Backup Servicer, the Custodian, and the Owner Trustee.

“Securities” means the Notes and the Certificate, or any of them.

“Securities Act” means the Securities Act of 1933, as amended.

“Securityholders” means, collectively, the Noteholders and the Certificateholder.

“Seller” shall have the meaning provided in the Preamble.

“Servicer” means initially Hercules, or its successors in interest, until any Servicer Transfer hereunder or the resignation or permitted assignment by the Servicer and, thereafter, means the Backup Servicer or other Successor Servicer appointed pursuant to Article VIII with respect to the duties and obligations required of the Servicer under this Agreement.

“Servicer Default” shall have the meaning specified in Section 8.01.

“Servicer Transfer” shall have the meaning specified in Section 8.02(c).

“Servicing Advances” means all reasonable and customary “out-of-pocket” costs and expenses incurred in the performance by the Servicer of its servicing obligations, including, but not limited to, the cost of (a) the preservation, restoration and protection of any Related Property (including the security interest therein), (b) any pursuit of collections, enforcement or judicial proceedings, including foreclosures, and other actions to realize on the Loans, (c) the management and liquidation of any Foreclosed Property or Repossessed Property, (d) compliance with its obligations under this Agreement and other Transaction Documents and (e) services rendered in connection with the

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liquidation of a Loan (other than Liquidation Expenses), for all of which costs and expenses the Servicer is entitled to reimbursement with interest thereon as provided in this Agreement.

“Servicing Fee” shall have the meaning provided in Section 5.11.

“Servicing File” means, for each Loan, the following documents or instruments:

(a) copies of each of the Required Loan Documents; and

(b) any other portion of the Loan File which is not part of the Required Loan Documents.

“Servicing Officer” means any officer of the Servicer involved in, or responsible for, the administration and servicing of Loans whose name appears on a list of servicing officers appearing in an Officer’s Certificate furnished to the Trustee by the Servicer, as the same may be amended from time to time.

“Servicing Standard” means, with respect to any Loans and all other assets included in the Collateral, to service and administer such Loans and other assets in the Collateral in accordance with the Underlying Loan Agreements (as applicable) and all customary and usual servicing practices, in a manner consistent with the Servicer’s servicing of comparable senior loan agreements that it owns or services for itself or others, without regard to: (i) the Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction, or (ii) the ownership, servicing or management for others by the Servicer of any other loans, debt securities or property by the Servicer.

“Servicing Transfer Costs” means the fees, costs and expenses, if any, incurred by the Trustee or by any Successor Servicer (including the Backup Servicer) in connection with the transfer of servicing to any such Successor Servicer, which shall not exceed the Transition Expense Cap; provided that the foregoing limitations shall not apply after the occurrence of an Event of Default that is continuing and the Trustee has initiated proceedings or actions in furtherance of the liquidation of the Collateral.

“Solvent” means, as to any Person at any time, that (a) the fair value of the property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (d) such Person is not engaged in business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital.

“Split Loan” means an Additional Loan or Substitute Loan acquired by the Issuer that has one or more Related Loans or other loans under the same facility or tranche that will be financed by Hercules or an Affiliate thereof in a Warehouse Loan Facility.

“Split Loan Account” means any designated account held at the Split Loan Agent in the name of Hercules, as agent for the benefit of the Trustee and the applicable Warehouse Lender, as secured parties in respect of Split Loans and any Related Loans, respectively.

“Split Loan Agent” means USBNA or another Qualified Institution serving as Split Loan Agent pursuant to the Transaction Documents.

“Split Loan Intercreditor Agreement” means any intercreditor agreement entered into by and among the Issuer, the Servicer, the applicable Warehouse Lender, Split Loan Agent, the Trustee, the Custodian and the Backup Servicer, which shall provide, among other things, key terms that are substantially as follows: (a) payments received in respect

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of such Split Loans and the Related Loans will be applied pro rata to the outstanding principal exposure among the lenders or, if payment is received in connection with a particular tranche, pro rata among all lenders in the particular tranche; (b) the percentage of lenders required to constitute required lenders under the underlying credit documents will be at least 50.1 percent of the outstanding loan amount thereunder; provided that, upon certain key events, if there are three (3) or fewer unaffiliated lenders (i.e., lenders not affiliated with Hercules) all lenders must consent or vote affirmatively to constitute required lenders under the underlying credit documents; (c) upon an exercise of remedies with respect to such Split Loans and Related Loans, Hercules, as agent for the underlying secured parties, will allocate collateral proceeds pro rata based on outstanding principal exposure of the lenders; (d) each Warehouse Lender, the Trustee and the Custodian will acknowledge the rights and interests of the other secured parties and the Split Loan Agent with respect to such Split Loans and the Related Loans, the underlying loan files and the Split Loan Account; and (e) in the event of either an involuntary bankruptcy filing (which filing remains unstayed for a period of sixty (60) days) or a voluntary bankruptcy filing by Hercules, any exercise of remedies by Hercules (as agent for the underlying secured parties under the underlying credit documents) or amendments or other modifications to the underlying credit documents will be subject to approval of and direction by required lenders under the underlying credit documents (subject to clause (b) above).

“Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§ 3801 et seq., as the same may be amended from time to time.

“Subsequent List of Loans” means a list, in the form of the initial List of Loans delivered on the Closing Date, but listing each Additional Loan or Substitute Loan, as the case may be, transferred to the Issuer from time to time.

“Subservicer” means any direct or indirect wholly owned subsidiary of Hercules that Hercules has identified as a subservicer or additional collateral agent or any other Person with whom the Servicer has entered into a Subservicing Agreement and who satisfies the requirements set forth in Section 5.02(b) of this Agreement in respect of the qualification of a Subservicer.

“Subservicing Agreement” means any agreement between the Servicer and any Subservicer relating to subservicing and/or administration of certain Loans as provided in this Agreement, a copy of which shall be delivered, along with any modifications thereto, to the Trustee.

“Substitute Loan” means one or more Loans transferred by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer under and in accordance with Section 2.06.

“Substitute Loan Assets” means any assets acquired by the Issuer from the Trust Depositor following the Closing Date in connection with substitution of one or more Substitute Loans pursuant to Section 2.04 or Section 2.06, which assets shall include the Trust Depositor’s right, title and interest in the following:

(i) the Substitute Loans listed in the related Subsequent List of Loans and all monies due, to become due or paid in respect thereof accruing on and after the Substitute Loan Cutoff Date and all Insurance Proceeds, Liquidation Proceeds and other recoveries thereon, in each case as they arise after the Substitute Loan Cutoff Date;

(ii) all security interests and Liens and Related Property subject thereto from time to time purporting to secure payment by Obligors under such Loans;

(iii) all guaranties, indemnities and warranties, and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Loans;

(iv) all collections and Records (including Computer Records) with respect to the foregoing;

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(v) all documents relating to the applicable Loan Files; and

“Substitute Loan Cutoff Date” means each date on or after the Closing Date on which a Substitute Loan is transferred to the Issuer.

“Substitution Deficit Amount” means, in respect of one or more Loans replaced with one or more Substitute Loans, the amount (if positive) by which the Outstanding Loan Balance of such Loans exceeds the Outstanding Loan Balance of such Substitute Loans.

“Substitution Event” shall have the meaning provided in Section 2.06.

“Successor Servicer” shall have the meaning provided in Section 8.02(b).

“Successor Servicer Engagement Fee” shall have the meaning provided in Section 5.02(y).

“Super-Majority Noteholders” means prior to the payment in full of the Notes, the Noteholders evidencing more than 66 2/3% of the Aggregate Outstanding Principal Balance of Notes (excluding Notes held by the Trust Depositor, the Seller, the Servicer or any of their respective Affiliates).

“Tape” shall have the meaning provided in Section 9.04(a).

“Technology Loan” means a Loan made to an Obligor that is a technology company, including a company involved in, but not limited to, semi-conductor manufacturing, software, internet consumer and business services, content providers, media, communications and networking, clean technologies (excluding companies doing business in the energy, clean energy or alternative energy sectors), information services, or internet consumer and business services.

“Termination Notice” shall have the meaning provided in Section 8.02(a).

“Third Party Agented Loan” means, any Loan with respect to which, (a) the Loan is originated by a Person other than or in addition to the Seller as part of a syndicated loan transaction which has been fully consummated prior to such Loan becoming part of the Collateral, (b) upon the sale of the Loan under the Transfer and Servicing Agreements to the Issuer, the Required Loan Documents shall have been delivered to the Custodian, (c) the Issuer, as assignee of the Loan, has all of the rights (including without limitation voting rights) of the Seller which have been transferred by the Seller with respect to the Loan and the Seller’s right, title and interest in and to the Related Property, (d) the Loan is secured by an undivided interest in the Related Property that also secures and is shared by, on a pro rata basis, all other holders of such Obligor’s indebtedness of equal priority issued in such syndicated loan transaction, and (e) the third party Loan originator (or an affiliate thereof) is the lead agent, collateral agent or paying agent for all lenders in such syndicated loan transaction.

“Transaction Account Property” means the Transaction Accounts, all amounts and investments held from time to time in any Transaction Account (whether in the form of deposit accounts, physical property, book-entry securities, uncertificated securities or otherwise), and all proceeds of the foregoing.

“Transaction Accounts” means, collectively, the Collection Account, the Reserve Account, the Distribution Account, the Reinvestment Account and the Lockbox Account.

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“Transaction Documents” means the Transfer and Servicing Agreements, the Trust Agreement, the Administration Agreement, the Notes, the Certificate, any Split Loan Intercreditor Agreement (to the extent the Issuer acquires any Split Loans), the Master Collection Account Control Agreement, if any, the Master Collection Account Agency Agreement, if any, the Note Purchase Agreement, any fee letters, any UCC financing statements filed pursuant to the terms of the Transaction Documents, and any additional document the execution of which is necessary or incidental to carrying out the terms of, or which is identified as a “Transaction Document” in, the foregoing documents, all as such documents are amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.

“Transfer and Servicing Agreements” means, collectively, this Agreement, the Indenture and the Sale and Contribution Agreement.

“Transfer Date” means, with respect to any Loan, the date upon which such Loan is conveyed to or acquired by the Issuer.

“Transfer Deposit Amount” means, on any date of determination with respect to any Loan, an amount equal to the sum of (a) the Outstanding Loan Balance of such Loan, (b) accrued interest thereon through such date of determination at the Loan Rate provided for thereunder and (c) any outstanding Scheduled Payment Advances and Servicing Advances thereon that have not been waived by the Servicer entitled thereto.

“Transition Expense Cap” means, for any given servicing transfer, an aggregate maximum amount of $25,000 for a servicing transfer to the Backup Servicer or $150,000 to any other Successor Servicer.

“Treasury Rate” XE "Treasury Rate" means, in the case of an Optional Redemption of the Notes, the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry and Financial Markets Association) at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days (but not more than five Business Days) prior to the Redemption Date (or, if such statistical release is not so published or available, any publicly available source of similar market data selected by the Issuer in good faith)) most nearly equal to the period from the Redemption Date to the end of the Reinvestment Period; provided, however, that if the period from the Redemption Date to the end of the Reinvestment Period is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to such applicable date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

“Trust Agreement” means the Amended and Restated Trust Agreement, dated as of the Closing Date, between the Trust Depositor and the Owner Trustee, as amended, modified, restated, waived or supplemented from time to time.

“Trust Depositor” shall have the meaning provided in the Preamble.

“Trust Depositor LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Trust Depositor, dated as of the Closing Date, between the Seller, as the sole member, and the Independent manager party thereto.

“Trust Estate” shall have the meaning provided in the Trust Agreement.

“Trustee” means the Person acting as Trustee under the Indenture, its successors in interest and any successor trustee under the Indenture.

“Trustees” means the Owner Trustee and the Trustee, or any of them individually as the context may require.

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“UCC” means the Uniform Commercial Code, as amended from time to time, as in effect in any specified jurisdiction.

“Underlying Loan Agreement” means, with respect to any Loan, the single-lender or multi-lender commercial loan or credit agreement or other debt agreement or instrument evidencing such Loan or facility pursuant to which such Loan is made.

“Underlying Note” means the one or more promissory notes executed by the applicable Obligor evidencing a Loan.

“United States” means the United States of America.

“USBNA” shall have the meaning provided in the Preamble.

“U.S. Bank” shall have the meaning provided in the Preamble.

“Xxxxxxx Rule” means Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (the “Xxxx-Xxxxx Act”), as implemented by regulations jointly adopted by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Corporation and the Commission and any orders or interpretations issued thereby.

“Warehouse Lender” means one or a syndicate of financial institutions providing warehouse loan financing to Hercules or an Affiliate thereof pursuant to a Warehouse Loan Facility.

“Warehouse Loan Facility” means a warehouse loan facility provided to Hercules or an Affiliate thereof by one or more Warehouse Lenders.

Section 1.02. Usage of Terms.

With respect to all terms in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all amendments, modifications and supplements thereto or any changes therein entered into in accordance with their respective terms and not prohibited by this Agreement; references to Persons include their permitted successors and assigns; and the term “including” means “including without limitation.”

Section 1.03. Section References.

All Section references (including references to the Preamble), unless otherwise indicated, shall be to Sections (and the Preamble) in this Agreement.

Section 1.04. Calculations.

Except as otherwise provided herein, all interest rate and basis point calculations hereunder will be made on the basis of a 360 day year consisting of twelve 30-day months and will be carried out to at least three decimal places.

Section 1.05. Accounting Terms.

All accounting terms used but not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States.

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ARTICLE 2.

ESTABLISHMENT OF ISSUER; TRANSFER OF LOAN ASSETS

Section 2.01. Creation and Funding of Issuer; Transfer of Loan Assets.

(a) The Issuer shall be governed pursuant to the terms and conditions of the Trust Agreement, dated as of the Closing Date, between the Trust Depositor and the Owner Trustee (the “Original Trust Agreement”), upon the execution and delivery of the Original Trust Agreement and created by the filing by the Owner Trustee of an appropriately completed Certificate of Trust (as defined in the Original Trust Agreement) under the Statutory Trust Statute. The Trust Depositor, as settlor of the Issuer, shall fund and convey assets to the Issuer pursuant to the terms and provisions hereof. The Issuer shall be administered pursuant to the provisions of this Agreement, the Administration Agreement and the Trust Agreement for the benefit of the Securityholders. Each of the Owner Trustee and the Administrator is hereby specifically recognized by the parties hereto as empowered to conduct business dealings on behalf of the Issuer in accordance with the terms hereof and of the Trust Agreement and Administration Agreement. The initial Servicer is hereby specifically recognized by the parties hereto as empowered to act on behalf of the Issuer in accordance with Section 5.02(g) and Section 5.02(h). The Servicer is hereby specifically recognized by the parties hereto as empowered to perform the duties and obligations required to be performed by the Servicer under the Transaction Documents.

(b) Subject to and upon the terms and conditions set forth herein, and in consideration of the Issuer’s delivery to or upon the order of the Trust Depositor of the Notes and the payment to the Trust Depositor of the net proceeds of the Notes, the Trust Depositor hereby sells, transfers, assigns, sets over and otherwise conveys to the Issuer all the right, title and interest of the Trust Depositor in and to the Initial Loan Assets.

To the extent the purchase price paid to the Trust Depositor for any Loan Assets is less than the fair market value of such Loan Assets, the difference between such fair market value and such purchase price shall be deemed to be a capital contribution made by the Trust Depositor to the Issuer on the Closing Date in the case of the Initial Loans, as of the related Additional Loan Cutoff Date in the case of any Additional Loans and as of the related Substitute Loan Cutoff Date in the case of any Substitute Loans. For all purposes of this Agreement, any contributed Loan Assets shall be treated the same as Loan Assets sold for cash, including without limitation for purposes of Section 11.01.

(c) The Seller and the Trust Depositor each acknowledge with respect to itself that the representations and warranties of the Seller in the Sale and Contribution Agreement and of the Trust Depositor in Section 3.01 through Section 3.04 hereof will run to and be for the benefit of the Issuer and the Trustees, and the Issuer and the Trustees may enforce directly (without joinder of the Trust Depositor when enforcing against the Seller) the repurchase obligations of the Seller or Trust Depositor, as applicable, with respect to breaches of such representations and warranties that materially and adversely affect the interests of any Noteholder as set forth in the Sale and Contribution Agreement or in this Agreement; provided that neither the Owner Trustee nor the Trustee shall have a duty or obligation (i) to discover or make and attempt to discover, inquire about or investigate the breach of any of such representations or warranties, (ii) to determine if such breach materially and adversely affects the interests of any Noteholder or (iii) to enforce the repurchase obligations of the Seller and/or the Trust Depositor it being understood that a Trustee’s sole duty upon receipt by a Responsible Officer of actual knowledge or written notice of a breach that materially and adversely affects the interests of Noteholders shall be to make demand upon the Seller or Trust Depositor, as applicable, to repurchase the Loan(s) unless the applicable Trustee receives written direction and indemnity reasonably satisfactory to it from the Super-Majority Noteholders specifying the additional action to be taken (or omitted) by the Trustee, including but not limited to commencing litigation against the Seller or Trust Depositor, as applicable.

(d) The sale, transfer, assignment, set-over and conveyance of the Loan Assets by the Trust Depositor to the Issuer pursuant to this Agreement does not constitute and is not intended to result in a creation or an assumption by the Issuer of any obligation of the Seller or the Trust Depositor in connection with the Loan Assets, or

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any agreement or instrument relating thereto, including, without limitation, (i) any obligation to any Obligor relating to any unfunded commitment from the Seller or the Trust Depositor, (ii) any taxes, fees, or other charges imposed by any Governmental Authority and (iii) any insurance premiums that remain owing with respect to any Loan Asset at the time such Loan Asset is sold hereunder. Without limiting the foregoing, (x) the Issuer does not assume any obligation to purchase any additional notes or loans under agreements governing the Loan Assets and (y) the sale, transfer, assignment, set-over and conveyance of the Loan Assets by the Trust Depositor to the Issuer pursuant to this Agreement does not constitute and is not intended to result in a creation or an assumption by the Trust Depositor or the Issuer of any obligation of the Seller as lead agent or collateral agent under any Agented Loan or Co-Agented Loan. The Trust Depositor also hereby assigns to the Issuer all of the Trust Depositor’s right, title and interest (but none of its obligations) under the Sale and Contribution Agreement, including but not limited to the Trust Depositor’s right to exercise the remedies created by the Sale and Contribution Agreement.

(e) The Seller, Trust Depositor and Issuer intend and agree that (i) the transfer of the Loan Assets by the Seller to the Trust Depositor under the Sale and Contribution Agreement and the transfer of the Loan Assets by the Trust Depositor to the Issuer hereunder are intended to be a sale, conveyance and transfer of ownership of the Loan Assets, as the case may be, rather than the mere granting of a security interest to secure a borrowing and (ii) such Loan Assets shall not be part of the Seller’s or the Trust Depositor’s estate in the event of a filing of a bankruptcy petition or other action by or against such Person under any Insolvency Law. In the event, however, that notwithstanding such intent and agreement, such transfers are deemed to be a mere granting of a security interest to secure indebtedness, the Seller shall be deemed to have granted (and as of the Closing Date hereby grants to) the Trust Depositor and the Trust Depositor shall be deemed to have granted (and as of the Closing Date hereby grants) to the Issuer, as the case may be, a perfected first priority security interest in all right, title and interest of the Seller or of the Trust Depositor, respectively, in such Loan Assets and this Agreement shall constitute a security agreement under Applicable Law, securing the repayment of the purchase price paid hereunder, the obligations and/or interests represented by the Securities, in the order and priorities, and subject to the other terms and conditions of, this Agreement, the Indenture and the Trust Agreement, together with such other obligations or interests as may arise hereunder and thereunder in favor of the parties hereto and thereto.

(f) If any such transfer of the Loan Assets is deemed to be the mere granting of a security interest to secure a borrowing, the Trust Depositor may, to secure the Trust Depositor’s own borrowing under this Agreement (to the extent that the transfer of the Loan Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge and reassign (i) all or a portion of the Loan Assets pledged to Trust Depositor by the Seller and with respect to which the Trust Depositor has not released its security interest at the time of such pledge and assignment, and (ii) all proceeds thereof. Such repledge and reassignment may be made by Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights under any agreement with the Seller, and without further notice to or acknowledgment from the Seller. The Seller waives, to the extent permitted by applicable law, all claims, causes of action and remedies, whether legal or equitable (including any right of setoff), against Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by this Agreement.

(g) The Trust Depositor and the Issuer acknowledge and agree (and the Trustee is hereby directed to acknowledge and does acknowledge) that, solely for administrative convenience, any assignment agreement required to be executed and delivered in connection with the transfer of a Loan in accordance with the terms of related Underlying Loan Agreements may reflect that the Seller is assigning such Loan directly to the Issuer. Nothing in such assignment agreements shall be deemed to impair the transfers of the Loan Assets by the Seller to the Trust Depositor in accordance with the terms of this Agreement and the Sale and Contribution Agreement, as applicable, and the subsequent transfer of the Loan Assets by the Trust Depositor to the Issuer in accordance with the terms hereof.

Section 2.02. Conditions to Transfer of Initial Loan Assets to Issuer.

On or before the Closing Date, or, with respect to clause (g) below, within the period specified therein, the Seller or the Trust Depositor, as applicable, shall deliver or cause to be delivered to the Owner Trustee and Trustee each of

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the documents, certificates and other items as follows:

(a) a certificate of an officer of the Seller substantially in the form of Exhibit C hereto;

(b) copies of resolutions of Hercules, as Seller and Servicer, and the sole member of the Trust Depositor approving the execution, delivery and performance of this Agreement, the Transaction Documents to which it is a party and the transactions contemplated hereunder and thereunder, certified in each case by the Secretary or an Assistant Secretary of Hercules and the sole member of the Trust Depositor;

(c) officially certified evidence dated within 30 days of the Closing Date of due formation and good standing of the Seller under the laws of the State of Maryland;

(d) the initial List of Loans, certified by an officer of the Trust Depositor, together with an Assignment with respect to the Initial Loan Assets substantially in the form of Exhibit A (along with the delivery of any instruments and Loan Files as required under Section 2.09);

(e) a certificate of an officer of the sole member of the Trust Depositor substantially in the form of Exhibit B hereto;

(f) a letter from a nationally recognized accounting firm, addressed to the Seller and the Trust Depositor, stating that such firm has reviewed a sample of ten (10) of the Initial Loans and performed specific procedures for such sample with respect to certain loan terms;

(g) officially certified evidence dated within 30 days of the Closing Date of due organization and good standing of the Trust Depositor under the laws of the State of Delaware;

(h) evidence of the proper filing of a UCC-1 financing statement, naming the Seller as seller or debtor, naming the Trust Depositor as assignor, buyer or secured party, and naming the Issuer as total assignee of the Seller, buyer or secured party and describing the Loan Assets as collateral, with the office of the Secretary of State of the State of Delaware and in such other locations as required by the applicable UCC; and evidence of the proper filing of a UCC-1 financing statement, naming the Trust Depositor as seller or debtor, naming the Issuer as assignor, buyer or secured party, and naming the Trustee as total assignee of the Trust Depositor, buyer or secured party and describing the Loan Assets as collateral with the office of the Secretary of State of the State of Delaware and in such other locations as required by the applicable UCC; and evidence of proper filing of a UCC-1 financing statement, naming the Issuer as debtor, naming the Trustee as secured party and describing the Collateral as collateral with the office of the Secretary of State of the State of Delaware and in such other locations as required by the applicable UCC;

(i) an Officer’s Certificate listing the Servicer’s Servicing Officers;

(j) a fully executed copy of each of the Transaction Documents;

(k) except with respect to (i) Agented Loans, Co-Agented Loans and Third Party Agented Loans where the Seller (or a wholly-owned subsidiary of the Seller) receives payments on behalf of or as agent for the other lenders thereunder or where payments thereunder are made directly to such other lenders on behalf of or as agent for the Seller (or a wholly-owned subsidiary of the Seller) and (ii) Loans described in Section 7.01(d), a copy of the written notice from the Servicer notifying and directing the Obligor with respect to each such Loan to make all payments on the Loans, whether by wire transfer, ACH or otherwise, either (A) directly to the Lockbox Account or (B) following the date on which the Master Collection Account Control Agreement and Master Collection Account Agency Agreement become effective, to the Master Collection Account;

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(l) a copy of the written notice from the Servicer notifying and directing each of Hercules’s co-lenders under Co-Agented Loans and Third-Party Agented Loans that receive payments on behalf of the Seller, to transfer such payments received from the Obligors with respect to such Loans either (i) to the Lockbox Account or (ii) following the date on which the Master Collection Account Control Agreement and Master Collection Account Agency Agreement become effective, to the Master Collection Account, in either case, within one (1) business day of receipt of such payments by such co-lender; and

(m) written evidence with respect to the reconveyance of and release of any Lien upon any portion of Collateral previously secured by another warehouse financing of the Seller or its Affiliates.

Section 2.03. Acceptance by Issuer.

On the Closing Date, if the conditions set forth in Section 2.02 have been satisfied, the Issuer shall issue to, or upon the order of, the Trust Depositor the Certificate representing ownership of a beneficial interest in one hundred percent (100%) of the Issuer and the Issuer shall issue, and the Trustee shall authenticate, to, or upon the order of, the Trust Depositor the Notes secured by the Collateral.

Section 2.04. Conveyance of Substitute Loans.

(a) With respect to any Substitute Loans to be conveyed to the Trust Depositor by the Seller as described in Section 2.06, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Trust Depositor, without recourse other than as expressly provided herein (and the Trust Depositor shall purchase through cash payment and/or by exchange of one or more related Loans released by the Issuer to the Trust Depositor on the related Substitute Loan Cutoff Date), all the right, title and interest of the Seller in and to the Substitute Loans and Related Property.

The purchase price may equal, exceed or be less than the fair market value of such Substitute Loan as of the related Substitute Loan Cutoff Date, plus in each case accrued interest thereon. To the extent the purchase price of any Loan is less than the fair market value thereof, the Seller will be deemed to have made a capital contribution with respect to such excess to the Trust Depositor.

(b) Subject to Sections 2.01(d) and (e) and the conditions set forth in Section 2.06, the Trust Depositor shall sell, transfer, assign, set over and otherwise convey to the Issuer, without recourse other than as expressly provided herein and therein, (i) all the right, title and interest of the Trust Depositor in and to the Substitute Loans and (ii) all other Related Property related to such Substitute Loans (the property in clauses (i) and (ii) above, upon such transfer, becoming part of the Collateral).

(c) The Seller shall transfer to the Trust Depositor under the Sale and Contribution Agreement and the Trust Depositor shall transfer to the Issuer hereunder the applicable Substitute Loans and Related Property only upon the satisfaction of each of the following conditions on or prior to the related Substitute Loan Cutoff Date (in addition to the conditions set forth in Section 2.10):

(i) the Trust Depositor shall have provided the Issuer and the Trustee with timely notice of such substitution, which shall be delivered no later than 11:00 a.m. on the related Substitute Loan Cutoff Date;

(ii) there shall have occurred, with respect to each such Substitute Loan, a corresponding Substitution Event with respect to one or more Loans then in the Collateral;

(iii) the Seller and the Trust Depositor shall have delivered to the Issuer and the Trustee a Subsequent List of Loans listing the applicable Substitute Loans and an assignment agreement as

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required by the related Underlying Loan Agreement indicating that the Issuer is the holder of the related Substitute Loan;

(iv) the Seller shall have deposited or caused to be deposited in the Collection Account all Collections received by it with respect to the applicable Substitute Loans on and after the related Substitute Loan Cutoff Date;

(v) each of the representations and warranties made by the Trust Depositor pursuant to Sections 3.02 and 3.04 applicable to the Substitute Loans shall be true and correct as of the related Substitute Loan Cutoff Date;

(vi) the Seller shall bear all incidental transactions costs incurred in connection with a substitution effected pursuant to this Agreement and shall, at its own expense, on or prior to the related Substitute Loan Cutoff Date, indicate in its Computer Records that ownership of each Substitute Loan identified on the Subsequent List of Loans has been sold by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer pursuant to the Transfer and Servicing Agreements; and

(vii) if such Substitute Loan is a Co-Agented Loans or a Third-Party Agented Loan, the Servicer shall have notified and directed each of Hercules’s co-lenders under such Substitute Loan that receive payments on behalf of the Seller, to transfer such payments received from the Obligors with respect to such Substitute Loan either (A) to the Lockbox Account or (B) following the date on which the Master Collection Account Control Agreement and Master Collection Account Agency Agreement become effective, to the Master Collection Account, in either case, within one (1) business day of receipt of such payments by such co-lender.

(d) The Servicer, the Issuer and the Trustee (at the request of the Servicer) shall execute and deliver such instruments, consents or other documents and perform all acts reasonably requested by the Servicer in order to effect the transfer and release of any of the Issuer’s interests in the Loans that are being substituted.

Section 2.05. Optional Sales of Loans.

(a) At its option, any Loan may be sold by the Issuer to Hercules (or any of its Affiliates) or a third party if:

(i) such Loan becomes a Defaulted Loan;

(ii) such Loan becomes a Delinquent Loan;

(iii) such Loan becomes a Restructured Loan; or

(iv) the Issuer (or the Servicer on its behalf), in its discretion, elects to sell the Loan.

(b) No optional sale of any Loan (whether to Hercules, any of its affiliates, or a third party) may be executed for a price less than the sum of (i) the Outstanding Loan Balance of such Loan and (ii) interest accrued to the date of such sale on the principal balance of such Loan at the interest rate applicable to such Loan, and any such sale shall be subject to the further limitations described in Section 2.10 below.

The Sale Proceeds from any sale pursuant to this Section 2.05(a) will be deposited into the Collection Account and allocated as provided in Section 7.06. Upon receipt by the Servicer for deposit in the Collection Account of the amounts of Sale Proceeds received in connection with any such sale, the Servicer shall request and the Issuer

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and the Trustee shall assign to the party designated by the Servicer (or to the Servicer itself) all of the Issuer’s and Trustee’s right, title and interest in the repurchased Loan and related Loan Assets without recourse, representation or warranty. Thereafter, such reassigned Loan shall no longer be included in the Collateral.

Section 2.06. Optional Substitution of Loans.

(a) At its option, any Loan may be substituted by the Issuer and replaced with a substitute loan (each such Loan, a “Substitute Loan”) if any of the following occur (each, a “Substitution Event”):

(i) such Loan becomes a Defaulted Loan;

(ii) such Loan becomes a Delinquent Loan;

(iii) such Loan becomes a Restructured Loan; or

(iv) the Issuer, in its discretion, elects to substitute the Loan.

Any such substitution shall be initiated by delivery of written notice (a “Notice of Substitution”) to the Trustee from the Servicer that the Issuer intends to substitute a Loan pursuant to this Section 2.06 and shall be completed prior to sixty (60) days after delivery of such notice. Each Notice of Substitution shall specify the Loan to be substituted, the reasons for such substitution and the Transfer Deposit Amount with respect to the Loan. The price deemed paid by the Issuer for any Substitute Loan shall be an amount equal to the Outstanding Loan Balance thereof, plus accrued interest thereon.

(b) No substitution of a Substitute Loan will be permitted unless the Servicer determines that such Substitute Loan is a Qualified Substitute Loan as of the date each such Substitute Loan is transferred to the Issuer.

Section 2.07. Acquisition of Additional Loans.

(a) During the Reinvestment Period, the Servicer may elect to transfer a portion of the Principal Collections in the Collection Account that are anticipated to be otherwise available for deposit in the Reinvestment Account on the immediately following Payment Date pursuant to Section 7.06(b) to the Reinvestment Account in accordance with Section 7.06(b), which amounts, together with other amounts on deposit in the Reinvestment Account, may be used by the Issuer to acquire Additional Loans at any time during the Reinvestment Period.

(b) With respect to any Additional Loans to be conveyed to the Trust Depositor by the Seller in connection with the acquisition of such Additional Loan, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Trust Depositor, without recourse other than as expressly provided herein (and the Trust Depositor shall purchase through cash payment), all the right, title and interest of the Seller in and to the Additional Loans and Related Property.

(c) Subject to Sections 2.01(d) and (e), the Trust Depositor shall sell, transfer, assign, set over and otherwise convey to the Issuer, without recourse other than as expressly provided herein and therein, (i) all the right, title and interest of the Trust Depositor in and to the Additional Loans and (ii) all other Related Property related to such Additional Loans (the property in clauses (i) and (ii) above, upon such transfer, becoming part of the Collateral).

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(d) The Seller shall transfer to the Trust Depositor under the Sale and Contribution Agreement and the Trust Depositor shall transfer to the Issuer hereunder the applicable Additional Loans and Related Property only upon the satisfaction of each of the following conditions on or prior to the related Additional Loan Cutoff Date:

(i) such Additional Loan is a Qualified Additional Loan as of the date such Additional Loan is transferred to the Issuer;

(ii) the Trust Depositor shall have provided the Issuer and the Trustee with timely notice of such acquisition, which shall be delivered no later than 11:00 a.m. on the related Additional Loan Cutoff Date;

(iii) the Seller and the Trust Depositor shall have delivered to the Issuer and the Trustee a Subsequent List of Loans listing the applicable Additional Loans and an assignment agreement as required by the related Underlying Loan Agreement indicating that the Issuer is the holder of the related Additional Loan;

(iv) the Seller shall have deposited or caused to be deposited in the Collection Account all Collections received by it with respect to the applicable Additional Loans on and after the related Additional Loan Cutoff Date;

(v) each of the representations and warranties made by the Trust Depositor pursuant to Sections 3.02 and 3.04 applicable to the Additional Loans shall be true and correct as of the related Additional Loan Cutoff Date;

(vi) the Seller shall bear all incidental transactions costs incurred in connection with an acquisition of Additional Loans effected pursuant to this Agreement and shall, at its own expense, on or prior to the related Additional Loan Cutoff Date, indicate in its Computer Records that ownership of each Additional Loan identified on the Additional List of Loans has been sold by the Seller to the Trust Depositor and by the Trust Depositor to the Issuer pursuant to the Transfer and Servicing Agreements; and

(vii) if such Additional Loan is a Co-Agented Loans or a Third-Party Agented Loan, the Servicer shall have notified and directed each of Hercules’s co-lenders under such Substitute Loan that receive payments on behalf of the Seller, to transfer such payments received from the Obligors with respect to such Substitute Loan either (A) to the Lockbox Account or (B) following the date on which the Master Collection Account Control Agreement and Master Collection Account Agency Agreement become effective, to the Master Collection Account, in either case, within one (1) business day of receipt of such payments by such co-lender.

(e) The Issuer’s acquisition of Split Loans will be subject to the satisfaction of the following conditions:

(i) on or prior to the Transfer Date on which the Issuer acquires any Split Loans:

(1) USBNA (or another Qualified Institution) shall have been designated as Split Loan Agent by the Issuer, the Servicer and the applicable Warehouse Lender and shall have accepted its appointment as such Split Loan Agent;

(2) the Issuer, the Servicer, the applicable Warehouse Lender, the Split Loan Agent, and acting at the direction of the Issuer, the Trustee, the Custodian and the Backup Servicer shall have implemented an arrangement with the applicable Warehouse Lender governing the

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splitting of such Split Loans with the loans financed by the applicable Warehouse Lender pursuant to a Split Loan Intercreditor Agreement satisfying the requirements set forth in this Agreement;

(3) the Issuer (or the Servicer on its behalf) shall have instructed the Obligors under any such Split Loans acquired by the Issuer to make payments to the applicable Split Loan Account;

(4) the original loan files relating to any Split Loans shall have been delivered to the Split Loan Agent to be held by the Split Loan Agent (or its agent), as custodian, and as agent for the benefit of the applicable Warehouse Lender and the Issuer; and

(5) the Servicer shall serve as the sole administrative and/or collateral agent in respect of such Split Loan.

(ii) Collections received in respect of any Split Loans shall be swept on a daily basis by the Split Loan Agent (at the direction of the Servicer) or the Servicer, as applicable, to a subaccount held at the Split Loan Agent in the name of the Issuer and then swept on a daily basis by the Split Loan Agent to the Collection Account.

(f) The Issuer (or the Servicer on its behalf) shall deliver notice to the Rating Agency of the implementation of any Split Loan arrangement and the entry into any Split Loan Intercreditor Agreement.

Section 2.08. Release of Excluded Amounts.

(a) The parties hereto acknowledge and agree that the Issuer has no interest in the Excluded Amounts. The Trustee hereby agrees to release to the Issuer from the Loan Assets, and the Issuer hereby agrees to release to the Trust Depositor, any Excluded Amounts immediately upon identification thereof and upon receipt of an Officer’s Certificate of the Servicer, which release shall be automatic and shall require no further act by the Trustee or the Issuer; provided that the Trustee and Issuer shall execute and deliver such instruments of release and assignment or other documents, or otherwise confirm the foregoing release, as may reasonably be requested by the Trust Depositor in writing. Such Excluded Amounts shall not constitute and shall not be included in the Loan Assets.

(b) Immediately upon the release to the Trust Depositor by the Trustee of any Excluded Amounts, the Trust Depositor hereby irrevocably agrees to release to the Seller such Excluded Amounts, which release shall be automatic and shall require no further act by the Trust Depositor; provided that the Trust Depositor shall execute and deliver such instruments of release and assignment or other documents, or otherwise confirm the foregoing release of such Excluded Amounts, as may be reasonably requested by the Seller in writing.

Section 2.09. Delivery of Documents in the Loan File.

(a) Subject to the delivery requirements set forth in Section 2.09(b), the Issuer hereby authorizes and directs the Seller and the Trust Depositor to deliver possession of all the Loan Files to the Custodian on the Trustee’s behalf (with copies to be held by the Servicer), on behalf of and for the account of the Noteholders. The Seller and the Trust Depositor shall also identify on the List of Loans (including any deemed amendment thereof associated with any Additional Loans or Substitute Loans), whether by attached schedule or marking or other effective identifying designation, all Loans that are evidenced by such instruments.

(b) With respect to each Loan in the Collateral, (i) on or prior to the Closing Date in the case of the Initial Loans and two (2) Business Days before the related Additional Loan Cutoff Date in the case of any Additional Loan or the Substitute Loan Cutoff Date in the case of any Substitute Loans (or, in each case, such lesser

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time as shall be acceptable to the Custodian), the Trust Depositor or the Seller will deliver or cause to be delivered to the Custodian on the Trustee’s behalf, to the extent not previously delivered, each of the Required Loan Documents with respect to such Loan (including electronic copies except to the extent required under the definition of Required Loan Documents or noted on Annex A to the List of Loans); and (ii) on or before the Closing Date in the case of the Initial Loans and on or before the related Additional Loan Cutoff Date in the case of any Additional Loan or the related Substitute Loan Cutoff Date in the case of any Substitute Loan (or, in each case, such lesser time as shall be acceptable to the Custodian), the Trust Depositor or the Seller will deliver or cause to be delivered to the Custodian on the Trustee’s behalf, to the extent not previously delivered, each of the documents in the Loan File that is not part of the Required Loan Documents with respect to such Loan (including electronic copies except to the extent noted on Annex A to the List of Loans).

Section 2.10. Limitations on Optional Sale and Substitution.

In no event may (a) the aggregate Outstanding Loan Balance of Delinquent Loans and Restructured Loans optionally sold or substituted by the Issuer hereunder for any reason exceed 7.5% (rounded to the nearest tenth of a percent) of the sum of (i) the Aggregate Outstanding Loan Balance as of the Cutoff Date (the “Cutoff Date Pool Balance”) plus (ii) the sum of the Outstanding Loan Balance of each Additional Loan acquired by the Issuer after the Closing Date (determined as of the date such Additional Loan is acquired by the Issuer), subject to the limitation in clause (c) below on aggregate optional sales and substitutions with respect to all of the Loans, (b) the aggregate Outstanding Loan Balance of Defaulted Loans sold or substituted by the Issuer exceed 7.5% (rounded to the nearest tenth of a percent) of the sum of (i) the Cutoff Date Pool Balance plus (ii) the sum of the Outstanding Loan Balance of each Additional Loan acquired by the Issuer after the Closing Date (determined as of the date such Additional Loan is acquired by the Issuer), subject to the limitation in clause (c) below on aggregate optional sales and substitutions with respect to all of the Loans, or (c) the aggregate Outstanding Loan Balance of all Loans (including any Delinquent Loans, Restructured Loans or Defaulted Loans optionally sold or substituted as described above) optionally sold or substituted by the Issuer for any reason exceed 15% (rounded to the nearest whole number) of the sum of (i) the Cutoff Date Pool Balance plus (ii) the sum of the Outstanding Loan Balance of each Additional Loan acquired by the Issuer after the Closing Date (determined as of the date such Additional Loan is acquired by the Issuer). The foregoing limitations shall not apply to sales to unaffiliated third parties of (i) Delinquent Loans, Restructured Loans or Defaulted Loans where the Issuer (or the Servicer on its behalf) has determined in good faith that the best recovery for such Loan is the sale thereof, (ii) a Loan which is subject to contractual purchase rights of unaffiliated third parties and such unaffiliated third party has exercised such right and (iii) a Loan which is being refinanced and the related Obligor or new lender has requested that such Loan be sold to an unaffiliated third party for the purpose of refinancing such Loan. For the purpose of calculating the percentage of the Cutoff Date Pool Balance comprising Loans that are optionally sold or substituted as described above, any Substitute Loans that have been placed into the Collateral in satisfaction of the Trust Depositor’s obligations to repurchase or substitute Loans pursuant to Section 11.01 shall be disregarded.

Section 2.11. Certification by Custodian; Possession of Loan Files.

(a) Review; Certification. On or prior to the date that is two (2) Business Days after the Closing Date (in the case of the Initial Loans), the related Additional Loan Cutoff Date (in the case of any Additional Loans) or the related Substitute Loan Cutoff Date (in the case of any Substitute Loans), the Custodian shall review the Required Loan Documents in the Loan File that are required to be delivered pursuant to Section 2.09(b) on the Closing Date (in the case of the Initial Loans), the related Additional Loan Cutoff Date (in the case of any Additional Loans) or the related Substitute Loan Cutoff Date (in the case of any Substitute Loans), and shall deliver to the Seller, the Trust Depositor, the Trustee, and the Servicer a certification with respect to the Required Loan Documents delivered to it at such time in the form attached hereto as Exhibit L‑1 on or prior to the date that is two (2) Business Days after the Closing Date (in the case of the Initial Loans), the related Additional Loan Cutoff Date (in the case of any Additional Loans) or the related Substitute Loan Cutoff Date (in the case of any Substitute Loans). Within two (2) Business Days after the Custodian receives the Required Loan Documents in the Loan File that are permitted, pursuant to Section 2.09(b), to be delivered after the related Additional Loan Cutoff Date (in the case of any Additional Loans) or the related Substitute Loan Cutoff Date (in the case of any Substitute Loans), the Custodian shall deliver to the

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Seller, the Trust Depositor, the Trustee and the Servicer a certification with respect to the Required Loan Documents delivered to it at such time in the form attached hereto as Exhibit L‑1, which updated certification shall supplement any previous certification given. Within 360 days after the Closing Date (in the case of the Initial Loans), the related Additional Loan Cutoff Date (in the case of any Additional Loans) and the related Substitute Loan Cutoff Date (in the case of any Substitute Loans), the Custodian shall deliver to the Seller, the Servicer, the Trust Depositor, the Trustee and any Noteholder who requests a copy from the Trustee a final certification in the form attached hereto as Exhibit L‑2. A copy of the final certification will be provided to any Noteholder upon request.

(b) Non-Conforming Loan Files. If the Custodian during the process of reviewing the Required Loan Documents in a Loan File finds any document constituting the Required Loan Documents that is not properly executed (if applicable), has not been received, is unrelated to a Loan identified in the List of Loans, or does not conform on its face in a material respect to the requirements of the definition of Required Loan Documents, or the description thereof as set forth in items (b)(i) and (ii) of the definition of List of Loans, the Custodian shall promptly so notify the Seller, the Trust Depositor and the Servicer in the form of an exception report attached to a certification required to be delivered pursuant to Section 2.11(a). In performing any such review, the Custodian may conclusively rely on the Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Custodian’s review of the Loan Files is limited solely to confirming that the documents listed in the definition of Required Loan Documents have been executed and received and relate to the Loans identified in the List of Loans. The Seller agrees to use commercially reasonable efforts to remedy a defect in a document constituting part of a Loan File of which it is so notified by the Custodian in an exception report and which the Seller, the Trust Depositor or the Servicer has determined to be material in nature. If, however, within 30 days after the determination by the Seller (notice of which determination shall be provided to the Trust Depositor and the Servicer (with a copy to the Trustee and the Owner Trustee) or notice from the Trust Depositor or Servicer (with a copy to the Trustee and the Owner Trustee) that an exception is material, the Seller has not remedied the defect and such defect materially and adversely affects the value of the related Loan, such Loan will be treated as an Ineligible Loan and the Seller will (i) substitute in lieu of such Loan a Substitute Loan in the manner and subject to the conditions set forth in Section 11.01 or (ii) repurchase such Loan at a purchase price equal to the Transfer Deposit Amount, which purchase price shall be deposited in the Collection Account within such 30 day period. For the avoidance of doubt, neither the Trustee nor the Custodian shall be responsible for determining whether an item listed on an exception report constitutes a material defect or whether such defect materially and adversely affects the value of the related Loan or the interest of any Noteholder.

(c) Release of Entire Loan File upon Sale, Substitution or Repurchase. Subject to Section 5.08(a), upon receipt by the Custodian of a certification of a Servicing Officer of the Servicer of such substitution or of such purchase and the deposit of the amounts then required to be deposited as described in Section 2.05, Section 2.06, Section 2.11(b) or Section 11.01, as applicable, in the Collection Account (which certification shall be in the form of Exhibit M hereto), the Custodian shall release and ship to the Servicer for release to the Seller the related Loan File and, upon request, the Trustee and the Issuer shall execute, without recourse, and deliver such instruments of transfer necessary to transfer all right, title and interest in such Loan to the Seller free and clear of any Liens created by the Transaction Documents. All costs of any such transfer shall be borne by the Seller.

(d) Partial Release of Loan File and/or Related Property. Subject to Section 5.08(b), if in connection with taking any action in connection with a Loan (including, without limitation, the amendment to documents in the Loan File and/or a revision to Related Property) the Servicer requires any item constituting part of the Loan File, or the release from the Lien of the related Loan of all or part of any Related Property, the Servicer shall deliver to the Custodian a certificate to such effect in the form attached as Exhibit M hereto. Subject to Section 5.08(d), upon receipt of such certification, the Custodian shall ship for delivery to the Servicer within two (2) Business Days of such request (if such request was received by 2:00 p.m., central time), the requested documentation, and, upon request of the Servicer, the Trustee shall execute, without recourse, and deliver such instruments of transfer necessary to release all or the requested part of the Related Property from the Lien of the related Loan and/or the Lien under the Transaction Documents.

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(e) Annual Certification. Within ninety (90) days of the beginning of each calendar year, commencing in 2023, the Custodian shall deliver to the Seller, the Trust Depositor and the Servicer a certification in the form of Exhibit K.

(f) Notwithstanding any language to the contrary herein, neither the Trustee nor the Custodian makes any representations as to, and shall not be responsible to verify, (i) the validity, legality, enforceability, due authorization, recordability, sufficiency for any purpose, or genuineness of any of the documents contained in each Loan File or (ii) the collectability, insurability, effectiveness or suitability of any such Loan Asset. In its review of documents and instruments pursuant to this Agreement, the Custodian and Trustee shall be under no duty or obligation to inspect, review or examine the Loan Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.

ARTICLE 3.

REPRESENTATIONS AND WARRANTIES

The Trust Depositor makes, and upon each conveyance of Additional Loans or Substitute Loans, as applicable, is deemed to make, the representations and warranties in Section 3.01 through Section 3.04, on which the Issuer will rely in purchasing the Initial Loan Assets on the Closing Date, any Additional Loan Assets on the relevant Additional Loan Cutoff Date and any Substitute Loan Assets on the relevant Substitute Loan Cutoff Date, and on which the Securityholders will rely.

Such representations and warranties are given as of the execution and delivery of this Agreement and as of the Closing Date (or Additional Loan Cutoff Date or Substitute Loan Cutoff Date, as applicable), but shall survive the sale, transfer and assignment of the Loan Assets to the Issuer. The repurchase obligation or substitution obligation of the Trust Depositor set forth in Section 11.01 constitutes the sole remedy available for a breach of a representation or warranty of the Trust Depositor set forth in Section 3.01 through Section 3.04 of this Agreement.

Section 3.01. Representations and Warranties Regarding the Trust Depositor.

The Trust Depositor represents and warrants to the Issuer and the Trustee that:

(a) Organization and Good Standing. The Trust Depositor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the power to own its assets and to transact the business in which it is currently engaged. The Trust Depositor is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify would reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of the Trust Depositor or the Issuer.

(b) Authorization; Valid Sale; Binding Obligations. The Trust Depositor has the power and authority to make, execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party and all of the transactions contemplated under this Agreement and the other Transaction Documents to which it is a party, and to create the Issuer and cause it to make, execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which the Issuer is a party, and the Trust Depositor has taken all necessary limited liability company action to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party. This Agreement shall effect a valid sale, transfer and assignment of or grant a security interest in the Loan Assets from the Trust Depositor to the Issuer. This Agreement and the other Transaction Documents to which the Trust Depositor is a party constitute the legal, valid and binding obligation of the Trust Depositor enforceable in accordance with their respective terms, except as enforcement of such terms may be limited by applicable Insolvency Laws and general principles of equity, whether considered in a suit at law or in equity.

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(c) No Consent Required. The Trust Depositor is not required to obtain the consent of any other party (other than those that it has already obtained) or any consent, license, approval or authorization from, or registration or declaration with, any Governmental Authority (other than (i) the filing of UCC financing statements and (ii) those that it has already obtained) in connection with the execution, delivery, performance, validity or enforceability of this Agreement or the other Transaction Documents to which it is a party.

(d) No Violations. The execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party by the Trust Depositor, and the consummation of the transactions contemplated hereby and thereby, will not violate in any material respect any Applicable Law applicable to the Trust Depositor, or conflict with, result in a default under or constitute a breach of the Trust Depositor’s organizational documents or material Contractual Obligations to which the Trust Depositor is a party or by which the Trust Depositor or any of the Trust Depositor’s properties may be bound, or result in the creation or imposition of any Lien of any kind upon any of its properties pursuant to the terms of any such material Contractual Obligations, other than as contemplated by the Transaction Documents.

(e) Litigation. No litigation or administrative proceeding of or before any court, tribunal or governmental body is currently pending, or to the knowledge of the Trust Depositor threatened, against the Trust Depositor or any of its properties or with respect to this Agreement, the other Transaction Documents to which it is a party or the Securities (i) that, if adversely determined, would in the reasonable judgment of the Trust Depositor be expected to have a material adverse effect on the business, properties, assets or condition (financial or otherwise) of the Trust Depositor or the Issuer or the transactions contemplated by this Agreement or the other Transaction Documents to which the Trust Depositor is a party or (ii) seeking to adversely affect the federal income tax or other federal, state or local tax attributes of the Certificate or Notes.

(f) Solvency. The Trust Depositor, at the time of and after giving effect to each conveyance of Loan Assets hereunder, is Solvent on and as of the date thereof.

(g) Taxes. The Trust Depositor has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and has paid all taxes shown to be due and payable on such returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any amount of tax due, the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with generally accepted accounting principles have been provided on the books of the Trust Depositor); no tax Lien has been filed and, to the Trust Depositor’s knowledge, no claim is being asserted, with respect to any such tax, fee or other charge.

(h) Place of Business; No Changes. The Trust Depositor’s location (within the meaning of Article 9 of the UCC) is the State of Delaware. The Trust Depositor has not changed its name, whether by amendment of its certificate of formation, by reorganization or otherwise, and has not changed its location within the 4-months preceding the Closing Date.

(i) Not an Investment Company. The Trust Depositor is not and, after giving effect to the transactions contemplated by the Transaction Documents, will not be required to be registered as an “investment company” under the 1940 Act.

(j) Sale Treatment. Other than for accounting and tax purposes, the Trust Depositor has treated the transfer of Loan Assets to the Issuer for all purposes as a sale and purchase on all of its relevant books and records and other applicable documents.

(k) Security Interest.

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(i) This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in favor of the Issuer in all right, title and interest of Trust Depositor in the Loan Assets, which security interest is prior to all other Liens (except for Permitted Liens), and is enforceable as such against creditors of and purchasers from the Trust Depositor;

(ii) the Loans, along with the related Loan Files, constitute “general intangibles,” “instruments,” “accounts,” “investment property,” or “chattel paper,” within the meaning of the applicable UCC;

(iii) the Trust Depositor owns and has, and upon the sale and transfer thereof by the Trust Depositor to the Issuer, the Issuer will have, good and marketable title to the Loan Assets free and clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;

(iv) the Trust Depositor has received all consents and approvals required by the terms of the Loan Assets to the sale of the Loan Assets hereunder to the Issuer;

(v) the Trust Depositor has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in the Loan Assets granted to the Issuer under this Agreement to the extent perfection can be achieved by filing a financing statement;

(vi) other than the security interest granted to the Issuer pursuant to this Agreement, the Trust Depositor has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Loan Assets. The Trust Depositor has not authorized the filing of and is not aware of any financing statements naming the Trust Depositor as debtor that include a description of collateral covering the Loan Assets other than any financing statement (A) relating to the security interest granted by the Trust Depositor under this Agreement, or (B) that has been terminated or for which a release or partial release has been filed. The Trust Depositor is not aware of the filing of any judgment or tax Lien filings against the Trust Depositor;

(vii) all original executed copies of each Underlying Note (if any) that constitute or evidence the Loan Assets have been delivered to the Trustee;

(viii) the Trust Depositor has received a written acknowledgment from the Trustee that the Trustee or its bailee is holding any Underlying Notes that constitute or evidence any Loan Assets solely on behalf of and for the benefit of the Securityholders; and

(ix) none of the Underlying Notes that constitute or evidence any Loan Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Issuer and the Trustee.

(l) Value Given. The cash payments and the Certificate received by the Trust Depositor in respect of the purchase price of the Loan Assets sold hereunder constitute reasonably equivalent value in consideration for the transfer to the Issuer of such Loan Assets under this Agreement, such transfer was not made for or on account of an antecedent debt owed by the Seller to the Trust Depositor, and such transfer was not and is not voidable or subject to avoidance under any Insolvency Law.

(m) Investment Company. The Issuer is not and, after giving effect to the transactions contemplated by the Transaction Documents, will not be required to be registered as an “investment company” within the meaning of the 1940 Act.

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(n) No Defaults. The Trust Depositor is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would reasonably be expected to have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Trust Depositor or its respective properties or might have consequences that would materially and adversely affect its performance hereunder.

(o) Bulk Transfer Laws. The transfer, assignment and conveyance of the Loans by the Trust Depositor pursuant to this Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction.

(p) Origination and Collection Practices. The origination and collection practices used by any Affiliate of the Trust Depositor with respect to each Loan have been consistent with the Servicing Standard and have complied with the Credit and Collection Policy in all material respects.

(q) [Reserved].

(r) Lack of Intent to Hinder, Delay or Defraud. Neither the Trust Depositor nor any of its Affiliates sold, or will sell, any interest in any Loan Asset with any intent to hinder, delay or defraud any of their respective creditors.

(s) Nonconsolidation. The Trust Depositor conducts its affairs such that the Issuer would not be substantively consolidated in the estate of the Trust Depositor and their respective separate existences would not be disregarded in the event of the Trust Depositor’s bankruptcy.

(t) Accuracy of Information. All written factual information heretofore furnished by the Trust Depositor for purposes of or in connection with this Agreement or the other Transaction Documents to which Trust Depositor is a party, or any transaction contemplated hereby or thereby is, and all such written factual information hereafter furnished by the Trust Depositor to any party to the Transaction Documents will be, true and accurate in all material respects, on the date such information is stated or certified; provided that the Trust Depositor shall not be responsible for any factual information furnished to it by any third party not affiliated with it, or the Seller or the Servicer, except to the extent that a Responsible Officer of the Trust Depositor has actual knowledge that such factual information is inaccurate in any material respect.

The representations and warranties set forth in Section 3.01(k) may not be waived by any Person and shall survive the termination of this Agreement. The Trust Depositor and Issuer shall provide the Rating Agency with prompt written notice upon obtaining knowledge of any breach of the representations and warranties set out in Section 3.01(k).

Section 3.02. Representations and Warranties Regarding Each Loan and as to Certain Loans in the Aggregate.

The Trust Depositor represents and warrants as to each Initial Loan as of the Closing Date, as of each Additional Loan Cutoff Date with respect to each Additional Loan and as of each Substitute Loan Cutoff Date with respect to each Substitute Loan, that:

(a) List of Loans. The information set forth in the List of Loans attached hereto as Exhibit G (as the same may be amended or deemed amended in respect of a conveyance of Additional Loans on an Additional Loan Cutoff Date or Substitute Loans on a Substitute Loan Cutoff Date) is true, complete and correct as of the Closing Date and each Substitute Loan Cutoff Date, as applicable.

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(b) Eligible Loan. Such Loan satisfies the criteria for the definition of Eligible Loan set forth in this Agreement as of the date of its conveyance hereunder.

Section 3.03. [Reserved].

Section 3.04. Representations and Warranties Regarding the Required Loan Documents.

The Trust Depositor represents and warrants on the Closing Date with respect to the Initial Loans (or as of the related Additional Loan Cutoff Date (with respect to Additional Loans) or as of the related Substitute Loan Cutoff Date (with respect to Substitute Loans), as applicable), that except as otherwise provided in Section 2.09, the Required Loan Documents and each other item included in the Loan File for each Loan are in the possession of the Trustee (or the Custodian, on behalf of the Trustee).

Section 3.05. [Reserved].

Section 3.06. Representations and Warranties Regarding the Servicer.

The initial Servicer represents and warrants to the Owner Trustee and the Trustee that:

(a) Organization and Good Standing. The Servicer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has the power to own its assets and to transact the business in which it is currently engaged. The Servicer is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify would have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of the Servicer or the Issuer. The Servicer is properly licensed in each jurisdiction to the extent required by the laws of such jurisdiction to service the Loans in accordance with the terms hereof and in which the failure to so qualify would reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of the Servicer or Issuer.

(b) Authorization; Binding Obligations. The Servicer has the power and authority to make, execute, deliver and perform this Agreement and the other Transaction Documents to which the Servicer is a party and all of the transactions contemplated under this Agreement and the other Transaction Documents to which the Servicer is a party, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Servicer is a party. This Agreement and the other Transaction Documents to which the Servicer is a party constitute the legal, valid and binding obligations of the Servicer enforceable in accordance with their respective terms, except as enforcement of such terms may be limited by applicable Insolvency Laws and general principles of equity, whether considered in a suit at law or in equity.

(c) No Consent Required. The Servicer is not required to obtain the consent of any other party (other than those that it has already obtained) or any consent, license, approval or authorization from, or registration or declaration with, any Governmental Authority (other than those that it has already obtained) in connection with the execution, delivery, performance, validity or enforceability of this Agreement or the other Transaction Documents to which the Servicer is a party.

(d) No Violations. The execution, delivery and performance by the Servicer of this Agreement and the other Transaction Documents to which the Servicer is a party will not violate any Applicable Law applicable to the Servicer, or conflict with, result in a default under or constitute a breach of the Servicer’s organizational documents or any material Contractual Obligations to which the Servicer is a party or by which the Servicer or any of the Servicer’s properties may be bound, or result in the creation of or imposition of any Lien of any kind upon any of its properties pursuant to the terms of any such material Contractual Obligations, other than as contemplated by the Transaction Documents.

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(e) Litigation. No litigation or administrative proceeding of or before any court, tribunal or governmental body is currently pending, or to the knowledge of the Servicer threatened, against the Servicer or any of its properties or with respect to this Agreement, or any other Transaction Document to which the Servicer is a party that, if adversely determined, would in the reasonable judgment of the Servicer be expected to have a material adverse effect on the business, properties, assets or condition (financial or otherwise) of the Servicer or the Issuer or the transactions contemplated by this Agreement or any other Transaction Document to which the Servicer is a party.

(f) Reports. All reports, certificates and other written information furnished by the Servicer with respect to the Loans are correct in all material respects on the date such information is furnished or certified; provided that the Servicer shall not be responsible for any information furnished to it by any third party not affiliated with the Servicer contained in any such reports, certificates or other written information, except to the extent that a Responsible Officer of the Servicer has actual knowledge that such factual information is inaccurate in any material respect.

Section 3.07. Representations of the Backup Servicer.

The Backup Servicer represents and warrants to the Owner Trustee and the Trustee that:

(a) Organization and Good Standing. The Backup Servicer has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, with power, authority and legal right to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and had at all relevant times, and now has, power, authority and legal right to enter into and perform its obligations under this Agreement;

(b) Due Qualification. The Backup Servicer is duly qualified to do business, is in good standing and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business (including the servicing of the Loans as required by this Agreement) requires or shall require such qualification;

(c) Power and Authority. The Backup Servicer has the power and authority to execute and deliver this Agreement and the other Transaction Documents to which the Backup Servicer is a party and to carry out its terms and their terms, respectively, and the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Backup Servicer is a party have been duly authorized by the Backup Servicer by all necessary corporate action;

(d) Binding Obligation. This Agreement and the other Transaction Documents to which the Backup Servicer is a party shall constitute the legal, valid and binding obligations of the Backup Servicer enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law;

(e) No Violation. The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which the Backup Servicer is a party, and the fulfillment of the terms of this Agreement and the other Transaction Documents to which the Backup Servicer is a party, shall not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the articles of incorporation or bylaws of the Backup Servicer, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Backup Servicer is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, other than this Agreement, or violate any law, order, rule or regulation applicable to the Backup Servicer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Backup Servicer or any of its properties;

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(f) No Proceedings. There are no proceedings or investigations pending or, to the Backup Servicer's knowledge, threatened against the Backup Servicer, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Backup Servicer or its properties (A) asserting the invalidity of this Agreement or any of the Transaction Documents to which the Backup Servicer is a party, (B) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents to which the Backup Servicer is a party, (C) seeking any determination or ruling that would reasonably be expected to materially and adversely affect the performance by the Backup Servicer of its obligations under, or the validity or enforceability of, this Agreement or any of the Transaction Documents to which the Backup Servicer is a party or (D) seeking to adversely affect the federal income tax or other federal, state or local tax attributes of the Notes;

(g) No Consents. The Backup Servicer is not required to obtain the consent of any other party or any consent, license, approval or authorization, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement which has not already been obtained.

ARTICLE 4.

PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS

Section 4.01. Custody of Loans.

The contents of each Loan File shall be held in the custody of the Custodian (on behalf of the Trustee) under the Indenture for the benefit of, and as agent for, the Securityholders.

Section 4.02. Filing.

On the Closing Date, the Seller, Trust Depositor and Servicer shall cause the UCC financing statement(s) referred to in Section 2.02(h) hereof to be filed, and from time to time the Servicer, on behalf of the Issuer, shall take and cause to be taken such actions and execute such documents as are necessary or desirable or as the Owner Trustee (acting at the direction of the Certificateholder) or Trustee (acting at the direction of the Majority Noteholders) may reasonably request to perfect and protect the Trustee’s first priority perfected security interest in the Loan Assets against all other Persons, including, without limitation, the filing of financing statements, amendments thereto and continuation statements, the execution of transfer instruments and the making of notations on or taking possession of all records or documents of title. Notwithstanding the obligations of the Seller, Trust Depositor and Servicer set forth in the preceding sentence, the Issuer hereby authorizes the Servicer to prepare and file, at the expense of the initial Servicer, such UCC financing statements (including but not limited to renewal, continuation or in lieu statements) and amendments or supplements thereto or other instruments as the Servicer may from time to time deem necessary or appropriate in order to perfect and maintain the security interest granted hereunder in accordance with the UCC.

Section 4.03. Changes in Name, Organizational Structure or Location.

(a) During the term of this Agreement, none of the Seller, the Servicer, the Trust Depositor or the Issuer shall change its name, form of organization, existence, state of formation or location without first giving at least 30 days’ prior written notice to the other parties hereto and the Owner Trustee.

(b) If any change in either the Servicer’s, the Seller’s or the Trust Depositor’s name, form of organization, existence, state of formation, location or other action would make any financing or continuation statement or notice of ownership interest or Lien relating to any Loan Asset seriously misleading within the meaning of applicable provisions of the UCC or any title statute, the Servicer, no later than ten (10) Business Days after the

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effective date of such change, shall file such amendments as may be required (including, but not limited to, any filings and other acts necessary or advisable under the UCC of each relevant jurisdiction) to preserve and protect the Trustee’s security interest in the Loan Assets and the proceeds thereof.

Section 4.04. Costs and Expenses.

The initial Servicer agrees to pay all reasonable costs and disbursements in connection with the perfection and the maintenance of perfection, as against all third parties, of the Trustees’ and Issuer’s right, title and interest in and to the Loan Assets (including, without limitation, the security interest in the Related Property related thereto and the security interests provided for in the Indenture); provided that to the extent permitted by the Required Loan Documents, the Servicer may seek reimbursement for such costs and disbursements from the related Obligors.

Section 4.05. Sale Treatment.

Other than for accounting and tax purposes, the Trust Depositor shall treat the transfer of Loan Assets made hereunder for all purposes as a sale and purchase on all of its relevant books and records.

Section 4.06.