Amended and Restated Trust Agreement



 Exhibit 4.2 
 EXECUTION COPY 
  

 
  

AMENDED AND RESTATED TRUST AGREEMENT 
 by and between 
 HERCULES CAPITAL FUNDING 2012-1 LLC, 

as the Trust Depositor 
 and 
 WILMINGTON TRUST, NATIONAL ASSOCIATION, 

as the Owner Trustee 
 Dated as of December 19, 2012 
  

 
  

Hercules Capital Funding Trust 2012-1 
 Asset-Backed Notes 







 TABLE OF CONTENTS 

 

							
	 	 	 	  	Page	 
		
	 ARTICLE I DEFINITIONS
	  	 	1	  
			
	 Section 1.01
	 	 Definitions.
	  	 	1	  
	 Section 1.02
	 	 Other Terms.
	  	 	3	  
	 Section 1.03
	 	 Computation of Time Periods.
	  	 	3	  
	 Section 1.04
	 	 Interpretation.
	  	 	3	  
	 Section 1.05
	 	 References.
	  	 	4	  
	 Section 1.06
	 	 Calculations.
	  	 	4	  
		
	 ARTICLE II ORGANIZATION
	  	 	5	  
			
	 Section 2.01
	 	 Name.
	  	 	5	  
	 Section 2.02
	 	 Office.
	  	 	5	  
	 Section 2.03
	 	 Purposes and Powers.
	  	 	5	  
	 Section 2.04
	 	 Appointment of Owner Trustee.
	  	 	6	  
	 Section 2.05
	 	 Initial Capital Contribution of Trust Estate.
	  	 	6	  
	 Section 2.06
	 	 Declaration of Trust.
	  	 	7	  
	 Section 2.07
	 	 Liability of the Certificateholders.
	  	 	7	  
	 Section 2.08
	 	 Title to Trust Property.
	  	 	7	  
	 Section 2.09
	 	 Situs of Trust.
	  	 	7	  
	 Section 2.10
	 	 Representations and Warranties of the Trust Depositor.
	  	 	8	  
	 Section 2.11
	 	 Federal Income Tax Allocations.
	  	 	8	  
	 Section 2.12
	 	 Covenant of Certificateholders.
	  	 	9	  
		
	 ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS
	  	 	9	  
			
	 Section 3.01
	 	 Initial Ownership.
	  	 	9	  
	 Section 3.02
	 	 The Trust Certificates.
	  	 	9	  
	 Section 3.03
	 	 Authentication of Trust Certificates.
	  	 	10	  
	 Section 3.04
	 	 Registration of Transfer and Exchange of Trust Certificates.
	  	 	10	  
	 Section 3.05
	 	 Mutilated, Destroyed, Lost or Stolen Trust Certificates.
	  	 	11	  
	 Section 3.06
	 	 Persons Deemed Owners.
	  	 	11	  
	 Section 3.07
	 	 Access to List of Certificateholders’ Names and Addresses.
	  	 	11	  
	 Section 3.08
	 	 Maintenance of Office or Agency.
	  	 	12	  
	 Section 3.09
	 	 Appointment of Trustee as Paying Agent.
	  	 	12	  
	 Section 3.10
	 	 Transfer Restrictions.
	  	 	13	  
		
	 ARTICLE IV ACTIONS BY OWNER TRUSTEE
	  	 	14	  
			
	 Section 4.01
	 	 Prior Notice to and Consent by Certificateholders with Respect to Certain Matters.
	  	 	14	  
	 Section 4.02
	 	 Action by Certificateholders with Respect to Bankruptcy.
	  	 	16	  
	 Section 4.03
	 	 Restrictions on Certificateholders’ Power.
	  	 	16	  
	 Section 4.04
	 	 Majority Control.
	  	 	16	  


  
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 TABLE OF CONTENTS 

(continued) 
  


							
	 	 	 	  	Page	 
		
	 ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
	  	 	17	  
			
	 Section 5.01
	 	 Establishment of Trust Account.
	  	 	17	  
	 Section 5.02
	 	 Application of Trust Funds.
	  	 	17	  
	 Section 5.03
	 	 Method of Payment.
	  	 	18	  
	 Section 5.04
	 	 No Segregation of Moneys; No Interest.
	  	 	18	  
	 Section 5.05
	 	 Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others.
	  	 	18	  
	 Section 5.06
	 	 Signature on Returns; Tax Matters Partner.
	  	 	19	  
		
	 ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
	  	 	19	  
			
	 Section 6.01
	 	 General Authority.
	  	 	19	  
	 Section 6.02
	 	 General Duties.
	  	 	20	  
	 Section 6.03
	 	 Action upon Instruction.
	  	 	20	  
	 Section 6.04
	 	 No Duties Except as Specified in this Agreement or in Instructions.
	  	 	21	  
	 Section 6.05
	 	 Restrictions.
	  	 	21	  
		
	 ARTICLE VII CONCERNING THE OWNER TRUSTEE
	  	 	22	  
			
	 Section 7.01
	 	 Acceptance of Trusts and Duties.
	  	 	22	  
	 Section 7.02
	 	 Furnishing of Documents.
	  	 	23	  
	 Section 7.03
	 	 Representations and Warranties.
	  	 	23	  
	 Section 7.04
	 	 Reliance; Advice of Counsel.
	  	 	24	  
	 Section 7.05
	 	 Not Acting in Individual Capacity.
	  	 	24	  
	 Section 7.06
	 	 Owner Trustee Not Liable for Trust Certificates or Loans.
	  	 	25	  
	 Section 7.07
	 	 Owner Trustee May Own Trust Certificates and Notes.
	  	 	25	  
		
	 ARTICLE VIII COMPENSATION OF OWNER TRUSTEE
	  	 	25	  
			
	 Section 8.01
	 	 Owner Trustee’s Fees and Expenses.
	  	 	25	  
	 Section 8.02
	 	 Indemnification.
	  	 	26	  
	 Section 8.03
	 	 Payments to the Owner Trustee.
	  	 	26	  
		
	 ARTICLE IX TERMINATION OF TRUST AGREEMENT
	  	 	27	  
			
	 Section 9.01
	 	 Termination of Trust Agreement.
	  	 	27	  
		
	 ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
	  	 	28	  
			
	 Section 10.01
	 	 Eligibility Requirements for Owner Trustee.
	  	 	28	  
	 Section 10.02
	 	 Resignation or Removal of Owner Trustee.
	  	 	28	  
	 Section 10.03
	 	 Successor Owner Trustee.
	  	 	29	  
	 Section 10.04
	 	 Merger or Consolidation of Owner Trustee.
	  	 	30	  
	 Section 10.05
	 	 Appointment of Co-Trustee or Separate Trustee.
	  	 	30	  


  
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 TABLE OF CONTENTS 

(continued) 
  


							
	 	 	 	  	Page	 
		
	 ARTICLE XI MISCELLANEOUS
	  	 	31	  
			
	 Section 11.01
	 	 Supplements and Amendments.
	  	 	31	  
	 Section 11.02
	 	 No Legal Title to Trust Estate in Certificateholders.
	  	 	33	  
	 Section 11.03
	 	 Limitations on Rights of Others.
	  	 	33	  
	 Section 11.04
	 	 Notices.
	  	 	33	  
	 Section 11.05
	 	 Severability.
	  	 	34	  
	 Section 11.06
	 	 Separate Counterparts.
	  	 	34	  
	 Section 11.07
	 	 Successors and Assigns.
	  	 	34	  
	 Section 11.08
	 	 No Petition.
	  	 	34	  
	 Section 11.09
	 	 No Recourse.
	  	 	35	  
	 Section 11.10
	 	 Headings.
	  	 	35	  
	 Section 11.11
	 	 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
	  	 	35	  
	 Section 11.12
	 	 Termination of Original Trust Agreement.
	  	 	36	  


  
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 EXHIBITS 

 

							
	Exhibit A	  	Form of Trust Certificate (Physical)	  	 	A	  
	Exhibit B	  	Form of Certificate of Trust	  	 	B	  
	Exhibit C	  	Form of Purchaser’s Representation and Warranty Letter	  	 	C	  


  
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 TRUST AGREEMENT 

THIS AMENDED AND RESTATED TRUST AGREEMENT (such agreement as amended, modified, waived, supplemented or restated from time to time, the
“Trust Agreement” or this “Agreement”), dated as of December 19, 2012, is between HERCULES CAPITAL FUNDING 2012-1 LLC, a Delaware limited liability company, as trust depositor (the “Trust
Depositor”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association (in its individual capacity, together with its successors and assigns, the “Trust Company”), as owner trustee (solely in such capacity,
the “Owner Trustee”). 
 R E C I T A L S

 WHEREAS, the Trust Depositor and the Owner Trustee have heretofore established a trust known as the Hercules Capital
Funding Trust 2012-1 (the “Trust”) pursuant to the Trust Agreement dated as of December 10, 2012 (the “Original Trust Agreement”) and the Certificate of Trust (as defined below); and 

WHEREAS, the Trust Depositor desires to continue the Trust; and 
 WHEREAS, the Trust Depositor desires to retain the Owner Trustee as the trustee of the Trust; and 
 WHEREAS, the Owner Trustee is willing to continue to serve as trustee of the Trust; and 
 WHEREAS, each of the Trust Depositor and the Owner Trustee consents to the amendment and restatement on the Original Trust Agreement pursuant to this Agreement. 

NOW, THEREFORE, based upon the above recitals, the mutual promises 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: 
 ARTICLE I 
 DEFINITIONS 

 

	 	Section 1.01	Definitions. 


For all purposes of this Trust Agreement, except as otherwise expressly provided below or unless the context otherwise requires,
capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Sale and Servicing Agreement, dated as of December 19, 2012 (the “Sale and Servicing Agreement”), among Hercules Capital
Funding Trust 2012-1, as the Issuer, Hercules Capital Funding 2012-1 LLC, as the Trust Depositor, Hercules Technology Growth Capital, Inc., as the Seller and as the Servicer and U.S. Bank National Association, as the Trustee and the Backup Servicer,
which capitalized terms are incorporated by reference herein. All other capitalized terms used herein shall have the meanings specified herein or below. 







 “Agreement” shall have the meaning given to such term in the Preamble of this Trust
Agreement. 
 “Bankruptcy Action” shall have the meaning given to such term in Section 4.02 of this Agreement.

 “Benefit Plan” shall have the meaning given to such term in Section 3.10(b) of this Trust Agreement. 

“Certificate Account” shall have the meaning given to such term in Section 5.01(a) of this Trust Agreement. 

“Certificate Register” shall mean the Certificate Register established and maintained in accordance with this Trust Agreement.

 “Certificate Registrar” shall mean, initially, the Trustee, and thereafter, any successor appointed pursuant to this Trust
Agreement. 
 “Certificate of Trust” shall mean a certificate of trust duly executed in the form of Exhibit B
attached hereto. 
 “Corporate Trust Office” means in the case of Owner Trustee: Wilmington Trust, National Association, Rodney
Square North, 1100 Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration and in the case of the Trustee/Certificate Registrar: U.S. Bank National Association, 60 Livingston Avenue, EP-MN-WS3D, St. Paul, MN 55107,
Attention: Structured Finance – Hercules 2012-1 facsimile no. (866) 831-7910, or at such other address as the Owner Trustee or the Trustee may designate from time to time by notice to the Trust Depositor. 

“Expenses” shall have the meaning given to such term in Section 8.02 of this Trust Agreement. 

“Indemnified Parties” shall have the meaning given to such term in Section 8.02 of this Trust Agreement. 

“Majority Certificateholders” means the Holder or Holders of Trust Certificates evidencing an aggregate Percentage Interest in excess of
50%. 
 “Original Trust Agreement” shall have the meaning given to such term in the recitals of this Trust Agreement.

 “Owner Trustee” shall have the meaning given to such term in the Preamble of this Trust Agreement. 

“Percentage Interest” shall mean with respect to a Trust Certificate, the percentage set forth on the face thereof. 

“QIBs” shall have the meaning given to such term in Section 3.10 of this Trust Agreement. 

  
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 “S&P” means Standard & Poor’s Financial Services LLC. 

“Sale and Servicing Agreement” shall have the meaning given to such term in Section 1.01 of this Trust Agreement.

 “Secretary of State” shall have the meaning given to such term in Section 2.02 of this Agreement. 

“Transfer” shall have the meaning given to such term in Section 3.10(d) of this Trust Agreement. 

“Trust” shall have the meaning given to such term in the recitals of this Trust Agreement. 

“Trust Agreement” shall have the meaning given to such term in the Preamble of this Trust Agreement. 

“Trust Certificate” shall mean a trust certificate representing a beneficial interest in the Trust executed and authenticated in the
form of Exhibit A attached hereto. 
 “Trust Company” shall have the meaning given to such term in the Preamble
of this Trust Agreement. 
 “Trust Depositor” shall have the meaning given to such term in the Preamble of this Trust
Agreement. 
 “Trust Estate” shall mean all right, title and interest of the Trust in and to the Loan Assets and all other
property and rights assigned to the Trust pursuant to the Sale and Servicing Agreement, all funds on deposit from time to time in the Transaction Accounts and the Certificate Account, and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Transaction Documents. 
  

	 	Section 1.02	Other Terms. 


All accounting terms used but not specifically defined herein shall be construed in accordance with generally accepted accounting
principles in the United States. The symbol “$” shall mean the lawful currency of the United States of America. All terms used in Article 9 of the UCC in the State of Delaware, and not specifically defined herein, are used herein as
defined in such Article 9. 
  

	 	Section 1.03	Computation of Time Periods. 

 Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including”, the words
“to” and “until” each mean “to but excluding”, and the word “within” means “from and excluding a specified date and to and including a later specified date”. 

 

	 	Section 1.04	Interpretation. 

 In this Agreement, unless a contrary intention appears: 
 (i) the
singular number includes the plural number and vice versa; 

  
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 (ii) reference to any Person includes such Person’s successors and
assigns but, if applicable, only if such successors and assigns are permitted by the Transaction Documents; 

(iii) reference to any gender includes each other gender; 

(iv) reference to day or days without further qualification means calendar days; 

(v) unless otherwise stated, reference to any time means New York, New York time; 

(vi) references to “writing” include printing, typing, lithography, electronic or other means of reproducing
words in a visible form; 
 (vii) reference to any agreement (including any Transaction Document), document or
instrument means such agreement, document or instrument as amended, modified, supplemented, replaced, restated, waived or extended and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of the other
Transaction Documents, and reference to any promissory note includes any promissory note that is an extension or renewal thereof or a substitute or replacement therefor; and 

(viii) reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, in
whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder and reference to any Section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect
and constituting the substantive amendment, modification, codification, replacement or reenactment of such Section or other provision. 
  

	 	Section 1.05	References. 


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

	 	Section 1.06	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. 

  
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 ARTICLE II 
 ORGANIZATION 
  

	 	Section 2.01	Name. 

 The
Trust created and continued hereby shall be known as the “Hercules Capital Funding Trust 2012-1,” in which name the Trust shall have power and authority and is hereby authorized and empowered, without the need for further action on the
part of the Trust, and the Owner Trustee shall have power and authority, and is hereby authorized and empowered, to conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued.

  

	 	Section 2.02	Office. 


The office of the Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address in the State of
Delaware as the Owner Trustee may designate by written notice to the Certificateholders and the Trust Depositor. The Trust shall constitute a statutory trust within the meaning of Section 3801(g) of the Statutory Trust Statute for which the
Owner Trustee has filed a Certificate of Trust with the Secretary of State of the State of Delaware (the “Secretary of State”) pursuant to Section 3810(a) of the Statutory Trust Statute. The execution and filing of the
Certificate of Trust by the Owner Trustee is hereby ratified, authorized, and approved. The Owner Trustee shall have power and authority, and is hereby authorized and empowered, to execute and file with the Secretary of State any other certificate
required or permitted under the Statutory Trust Statute to be filed with the Secretary of State. It is the intention of the parties hereto that this Trust Agreement constitute the governing instrument of such statutory trust. 

 

	 	Section 2.03	Purposes and Powers. 

 The purpose of the Trust is, and the Trust shall have the power and authority and is hereby authorized and empowered, without the need for further action on the part of the Trust, and the Owner Trustee
shall have power and authority, and is hereby authorized and empowered (but shall not be obligated), in the name and on behalf of the Trust, to do or cause to be done all acts and things necessary, appropriate or convenient to cause the Trust, to
engage in the following activities: 
 (a) to execute, authenticate, deliver, and issue from time to time the Notes pursuant to
the Indenture and the Trust Certificates pursuant to this Trust Agreement and, if applicable, a supplement hereto, and to sell the Notes and to transfer the Trust Certificates pursuant to such agreements and the other Transaction Documents;

 (b) with the proceeds of the sale of the Notes, to purchase the Initial Loans, to pay the organizational, start-up and
transactional expenses of the Trust and to fund the Transaction Accounts then permitted or required to be funded pursuant to the Sale and Servicing Agreement or the Indenture; 

  
 5 








 (c) as permitted under the Transaction Documents, to purchase, acquire, own, hold, receive,
manage, exercise rights and remedies with respect to, sell, transfer and dispose of, the Trust Estate or any portion thereof as well as any permitted Trust subsidiary; 
 (d) to assign, grant, transfer, pledge, mortgage, convey and grant a security interest in the Trust Estate pursuant to the Indenture and to hold, manage, transfer and distribute to the Certificateholders
pursuant to the terms of this Trust Agreement and the Sale and Servicing Agreement any portion of the Trust Estate released from the lien of, and remitted to the Trust pursuant to, the Indenture; 

(e) to enter into, execute, deliver and perform its obligations under the Transaction Documents to which it is to be a party and to
exercise its rights and remedies thereunder; 
 (f) subject to compliance with the Transaction Documents, to engage in such
other activities as may be required in connection with the conservation of the Trust Estate and the making of distributions to the Certificateholders, the Noteholders and others specified in the Transaction Documents; and 

(g) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith. 
 The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Transaction Documents. Nothing contained herein shall be deemed to authorize the Owner
Trustee on behalf of the Trust to engage in any other business operations or any activities other than those set forth in this Section 2.03. Specifically, the Owner Trustee shall have no authority on behalf of the Trust to engage in any
business operations, or acquire any assets other than those specifically included in the Trust Estate from time to time in accordance with the Transaction Documents. Similarly, the Owner Trustee shall have no discretionary duties other than
performing those acts necessary to accomplish the purpose of this Trust as set forth in this Section 2.03, certain of which may be delegated to the Servicer or the Administrator. Notwithstanding anything to the contrary contained herein,
the Trust may hold the Notes prior to their sale by the Initial Purchaser. 
  

	 	Section 2.04	Appointment of Owner Trustee. 

 The Trust Depositor hereby appoints the Owner Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein, and the Owner Trustee hereby
accepts such appointment. 
  

	 	Section 2.05	Initial Capital Contribution of Trust Estate. 

 The Trust Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the sum of ten dollars ($10.00). The Owner Trustee hereby acknowledges receipt from
the Trust Depositor, as of the date hereof, of the foregoing contribution, which shall constitute the initial Trust Estate (prior to giving effect to the conveyances described in the Sale and Servicing Agreement) and shall be deposited in the


  
 6 








 
Certificate Account. The Trust Depositor shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for
any such expenses paid by the Owner Trustee. 
  

	 	Section 2.06	Declaration of Trust. 

 The Owner Trustee hereby declares that it will hold the Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Transaction Documents. It is the intention of the parties hereto that the Trust constitute a statutory trust under the Statutory Trust Statute and that this Trust Agreement constitute the governing instrument of
such statutory trust. It is the intention of the parties hereto that, solely for federal income tax purposes, the Trust shall be treated as set forth in Section 2.11 of this Agreement. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed annual or other necessary returns, reports and other forms consistent with the characterization of the Trust as set forth in Section 2.11 of this Agreement. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and authority set forth herein and in the Statutory Trust Statute with respect to accomplishing the purposes of the Trust. 

 

	 	Section 2.07	Liability of the Certificateholders. 

 No Certificateholder shall have any personal liability for any liability or obligation of the Trust. 
  

	 	Section 2.08	Title to Trust Property. 

 Legal title to all of the Trust Estate shall be vested at all times in the Trust as a separate legal entity except where Applicable Law in any jurisdiction requires title to any part of the Trust Estate
to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be. If any portion of the Trust Estate is deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, (a) the Trust Depositor or the Owner Trustee, upon having actual knowledge thereof, will immediately notify the Trustee and the Servicer and (b) the Servicer will cause to be filed such UCC financing
statements and related filings, documents or writings as are necessary (or as shall be reasonably requested by the Trustee) to maintain the Trustee’s security interest in the Collateral under the Indenture. 

 

	 	Section 2.09	Situs of Trust. 

 All bank accounts maintained by the Owner Trustee or the Trustee on behalf of the Trust shall be located in the State of Delaware or such other state in which the Corporate Trust Office of the Owner
Trustee or the Trustee may be located. The Trust shall not have any employees in any state other than Delaware; provided that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or such other state in which the Corporate Trust Office of the Trustee may be located, and payments will be made by the Trust only from Delaware or such other state in which the
Corporate Trust Office of the Trustee may be located. The only office of the Trust will be at the Corporate Trust Office in Delaware. 

  
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	 	Section 2.10	Representations and Warranties of the Trust Depositor. 

 The Trust Depositor hereby represents and warrants to the Owner Trustee that: 

(a) The Trust Depositor is duly organized and validly existing as a limited liability company in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. 
 (b) The Trust Depositor has the power and authority to execute and deliver this Agreement and to carry out its terms. The Trust Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Trust Depositor has duly authorized such sale and assignment and deposit to the Trust by all necessary limited liability company action. 

(c) The execution, delivery and performance of this Agreement have been duly authorized by the Trust Depositor by all necessary limited
liability company action. 
 (d) This Agreement constitutes a legal, valid and binding obligation of the Trust Depositor
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and similar laws relating to creditors’ rights generally and subject to general principles of equity. 

(e) The execution, delivery and performance of this Trust 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 any material Applicable Law applicable to the Trust Depositor, or constitute a material breach of any mortgage, indenture, contract or other
agreement 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 security interest, lien, charge, pledge, preference,
equity or encumbrance of any kind upon any of its properties pursuant to the terms of any such mortgage, indenture, contract or other agreement, other than as contemplated by the Transaction Documents. 

(f) To the Trust Depositor’s best knowledge, there are no proceedings or investigations pending, or to the Trust Depositor’s
knowledge threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Trust Depositor or its properties: (A) asserting the invalidity of this Trust Agreement,
(B) seeking to prevent the consummation of any of the transactions contemplated by this Trust Agreement or (C) seeking any determination or ruling that might materially and adversely affect the performance by the Trust Depositor of its
obligations under, or the validity or enforceability of, this Trust Agreement. 
  

	 	Section 2.11	Federal Income Tax Allocations. 

 For purposes of federal incomes taxes, where partnership rules apply, partnership items shall be allocated in a manner that, to the extent possible, results in the same allocation of income to the
Certificateholders as if the partnership rules did not apply. 

  
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 It is the intent of the Trust Depositor, the Servicer and the Certificateholders that,
(i) in the event that the Trust Certificates are owned by a single Holder, for federal income tax purposes, the Trust will be treated as disregarded as an entity separate from such Holder, and such Holder, by acceptance of the Trust
Certificates, agrees to take no action inconsistent with such treatment and (ii) in the event that the Trust Certificates are owned by more than one Holder, for federal income tax purposes, the Trust will be treated as a partnership, other than
a publicly traded partnership, the partners of which are the Certificateholders, and the Certificateholders, by acceptance of a Trust Certificate agree to treat the Trust Certificates as equity and to take no action inconsistent with such treatment.

  

	 	Section 2.12	Covenant of Certificateholders. 

 Each Certificateholder agrees to be bound by the terms and conditions of the Trust Certificates and of this Trust Agreement, including any supplements or amendments hereto, and to perform the obligations
of a Certificateholder as set forth therein or herein, in all respects as if it were a signatory hereto. This undertaking is made for the benefit of the Trust Depositor, the Trust, the Owner Trustee, the Trust Company and all other
Certificateholders present and future. 
 ARTICLE III 

TRUST CERTIFICATES AND TRANSFER OF INTERESTS 
  

	 	Section 3.01	Initial Ownership. 

 Upon the formation of the Trust by the contribution by the Trust Depositor pursuant to Section 2.05 and until the issuance of the Trust Certificates, the Trust Depositor shall be the sole
beneficiary of the Trust. The Trust Depositor shall be the sole beneficiary of the Trust and shall not transfer its beneficial interest in the Trust or the Trust Certificates issued to it so long as the Notes are outstanding. 

 

	 	Section 3.02	The Trust Certificates. 

 (a) The Trust Certificates shall be substantially in the form set forth in Exhibit A hereto, with such changes as may be specified in a supplement to this Trust Agreement. Except as otherwise
set forth in a supplement to this Trust Agreement, the Trust Certificates shall be issued from time to time in minimum Percentage Interests of 10% and integral multiples of 1% in excess thereof; provided that one Trust Certificate may be
issued in a different denomination. The Trust Certificates shall be executed on behalf of the Trust by manual or facsimile signature of an authorized officer of the Owner Trustee. Trust Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefit of this Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and delivery of such Trust Certificates or did not hold such offices at the date of authentication and delivery of such Trust Certificates. 

(b) A transferee of a Trust Certificate shall become a Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee’s acceptance of a Trust Certificate duly registered in such transferee’s name pursuant to Section 3.04. 

  
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	 	Section 3.03	Authentication of Trust Certificates. 

 Concurrently with the initial transfer of the Initial Loans to the Trust pursuant to the Sale and Servicing Agreement, the Trust shall issue the Trust Certificates, in an aggregate Percentage Interest
equal to 100%, executed by the Owner Trustee on behalf of the Trust, authenticated by the Certificate Registrar and delivered to or upon the written order of the Trust Depositor, signed by its chairman of the board, its president, any vice
president, secretary or any assistant treasurer, without further limited liability company action by the Trust Depositor, in authorized denominations. No Trust Certificate shall entitle its Holder to any benefit under this Agreement or be valid for
any purpose unless there shall appear on such Trust Certificate a certificate of authentication substantially in the form set forth in Exhibit A, executed by the Certificate Registrar, by manual signature; such authentication shall
constitute conclusive evidence that such Trust Certificate has been duly and validly authorized, issued, authenticated and delivered hereunder and, subject to the terms of this Agreement, fully paid and non-assessable. All Trust Certificates shall
be dated the date of their authentication. 
  

	 	Section 3.04	Registration of Transfer and Exchange of Trust Certificates. 

 (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Trust Certificates and, subject to Section 3.10 hereof, of transfers and exchanges of Trust Certificates as herein provided. The Trustee
shall be the initial Certificate Registrar. Promptly upon written request therefor from the Owner Trustee, the Certificate Registrar shall provide to the Owner Trustee in writing such information regarding or contained in the Certificate Register as
the Owner Trustee may reasonably request. The Owner Trustee shall be entitled to rely (and shall be fully protected in relying) on such information. 
 (b) Upon surrender for registration of transfer of any Trust Certificate at the office or agency maintained pursuant to Section 3.08, the Certificate Registrar shall cause the Owner Trustee to
execute on behalf of the Trust and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Certificate Registrar or any authenticating agent. At the option of a Certificateholder, Trust Certificates may be exchanged for other Trust Certificates of authorized denominations of a like aggregate amount upon
surrender of the Trust Certificates to be exchanged at the office or agency maintained pursuant to Section 3.08. 

(c) Every Trust Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the registered Certificateholder or such registered Certificateholder’s attorney duly authorized in writing. Each Trust Certificate
surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. 

  
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 (d) No service charge shall be made for any registration of transfer or exchange of Trust
Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Trust Certificates. 

 

	 	Section 3.05	Mutilated, Destroyed, Lost or Stolen Trust Certificates. 

 If (a) any mutilated Trust Certificate shall be surrendered to the Certificate Registrar, or if the Certificate Registrar and the Owner Trustee shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Certificate, and (b) there shall be delivered to the Certificate Registrar and the Owner Trustee such security or indemnity as may be reasonably required by them to save each of them harmless, then in the
absence of notice to the Trust that such Trust Certificate has been acquired by a protected purchaser, the Certificate Registrar shall cause the Owner Trustee on behalf of the Trust to execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like tenor and denomination. The Holder of such Trust Certificate shall pay the reasonable expenses and charges of the
Certificate Registrar and the Owner Trustee in connection therewith. In connection with the issuance of any new Trust Certificate under this Section 3.05, the Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Certificate issued pursuant to this Section 3.05 shall constitute conclusive evidence of ownership of a beneficial
interest in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Trust Certificate shall be found at any time. 
  

	 	Section 3.06	Persons Deemed Owners. 

 Prior to due presentation of a Trust Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar or any paying agent or other agent thereof may treat the Person in whose name
any Trust Certificate is registered in the Certificate Register as the owner of such Trust Certificate for the purpose of receiving distributions pursuant to Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any paying agent or other agent thereof shall be bound by any notice to the contrary. 
  

	 	Section 3.07	Access to List of Certificateholders’ Names and Addresses. 


The Certificate Registrar shall furnish or cause to be furnished to the Trustee or any other party acting as paying agent, the Owner
Trustee, the Servicer and the Trust Depositor, within ten (10) Business Days after receipt by the Certificate Registrar of a written request therefor from the Trustee, the Owner Trustee, the Servicer or the Trust Depositor, a list, in such form
as the Trustee or any other party acting as paying agent, the Owner Trustee, the Servicer or the Trust Depositor may reasonably require, of the names and addresses of the Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holders of Trust Certificates evidencing not less than 25% of the Percentage Interests apply in writing to the Certificate Registrar, and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Trust Agreement or under the Trust Certificates and such application is accompanied by a copy of the communication that such 

  
 11 









 
applicants propose to transmit, then the Certificate Registrar shall, within five (5) Business Days after the receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Upon receipt of any such application, the Certificate Registrar will promptly notify the Trust Depositor by providing a copy of such application and a copy of the list of Certificateholders
produced in response thereto. Each Certificateholder, by receiving and holding a Trust Certificate, shall be deemed to have agreed not to hold any of the Trust Depositor, the Certificate Registrar and the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such information was derived. 
  

	 	Section 3.08	Maintenance of Office or Agency. 

 The Certificate Registrar shall maintain an office or offices or agency or agencies where Trust Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or
upon the Certificate Registrar in respect of the Trust Certificates and the Transaction Documents may be served. The Certificate Registrar initially designates the office of the Certificate Registrar at the Corporate Trust Office as its office for
such purposes. The Certificate Registrar shall give prompt written notice to the Trust Depositor, any paying agent, the Owner Trustee and the Certificateholders of any change in the location of the Certificate Register or any such office or agency.

  

	 	Section 3.09	Appointment of Trustee as Paying Agent. 

 The Trustee shall make distributions to Certificateholders from the Certificate Account pursuant to Section 5.02 and shall report the amounts of such distributions to the Owner Trustee. Any
paying agent of the Trustee shall have the revocable power to withdraw funds from the Certificate Account for the purpose of making the distributions referred to above. The Owner Trustee (acting at the written direction of the Administrator or the
Certificateholder) may revoke such power and remove the Trustee or any other party acting as paying agent of the Trustee, if the Administrator or the Certificateholder determines in its sole discretion that the Trustee or any other party acting as
paying agent shall have failed to perform its obligations under this Trust Agreement in any material respect. The paying agent initially shall be U.S. Bank National Association, as Trustee under the Indenture. U.S. Bank National Association shall be
permitted to resign as paying agent upon 30 days’ written notice to the Owner Trustee and the Servicer. In the event that U.S. Bank National Association shall no longer be the paying agent, the Owner Trustee (acting at the written
direction of the Administrator or the Certificateholder) shall appoint a successor to act as paying agent (which shall be a bank or trust company). The Owner Trustee shall cause the Trustee and such successor paying agent or any additional paying
agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee an instrument in which the Trustee and such successor paying agent or additional paying agent shall agree with the Owner Trustee that, as paying agent, the Trustee and
such successor paying agent or additional paying agent will hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Trustee or any other party acting as paying agent, shall return all unclaimed funds to the Owner Trustee and upon removal of a paying agent such paying agent shall also return all funds in its possession to the Owner Trustee.
The provisions of Sections 7.01, 7.04, 7.05, 7.06, 8.01 and 8.02 shall apply to U.S. Bank National Association or 

  
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the Owner Trustee also in its role as paying agent and Certificate Registrar as if U.S. Bank National Association and the Owner Trustee were named in such Sections, for so long as U.S. Bank
National Association or the Owner Trustee shall act as paying agent or Certificate Registrar and, to the extent applicable, to any other paying agent or certificate registrar appointed hereunder. Any reference in this Agreement to the paying agent
shall include any co-paying agent unless the context requires otherwise. 
  

	 	Section 3.10	Transfer Restrictions. 

 The Trust Certificates may not be offered, transferred or sold except to the Trust Depositor or an Affiliate thereof or to Qualified Institutional Buyers (“QIBs”) for purposes of
Rule 144A under the Securities Act who are Qualified Purchasers for purposes of Section 3(c)(7) under the 1940 Act, and who are United States persons (as defined in Section 7701(a)(30) of the Code) in reliance on an exemption from the
registration requirements of the Securities Act. 
 (a) The Trust Certificates have not been registered or qualified under the
Securities Act, or any state securities law. No transfer, sale, pledge or other disposition of any Trust Certificate shall be made unless such disposition is made pursuant to an effective registration statement under the Securities Act and effective
registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. No transfer of any Trust Certificates shall be made if such transfer would require the Trust
to register as an “investment company” under the 1940 Act. In the event that a transfer is to be made, the transferee shall execute and deliver to the Owner Trustee and Certificate Registrar a certification substantially in the form of
Exhibit C hereto. In the event that such transfer is to be made in reliance on the availability of an exemption under the Securities Act, the Owner Trustee may require the prospective transferee to provide an Opinion of Counsel
satisfactory to it that such transfer may be made pursuant to an exemption from the Securities Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or of the Trust. 

(b) Neither the Trust Certificates nor any beneficial interest in such Trust Certificates may be acquired or held by or with plan assets
of any employee benefit plans, retirement arrangements, individual retirement accounts or Keogh plans subject to either Title I of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Code (a
“Benefit Plan”) and any such purported transfer shall not be effective. Each transferee of a Trust Certificate shall be required to represent (a) that it is not a Benefit Plan and is not acquiring such Trust Certificate with
the plan assets of a Benefit Plan and (b) that if such Trust Certificate is subsequently deemed to be a plan asset of such a Benefit Plan, it will dispose of such Trust Certificate. 

(c) Each Trust Certificate will bear the legends set forth in paragraph 6 of Exhibit C hereto. 

(d) No transfer, sale, pledge or other disposition of one or more Trust Certificates (a “Transfer”) shall be made unless
the Percentage Interest of the Trust Certificates so Transferred is no less than ten (10%) percent. 

  
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 (e) Notwithstanding any other provision herein or elsewhere, other than to determine
that any certification delivered to the Owner Trustee or Certificate Registrar, as the case may be, pursuant to Section 3.10(a) hereof is substantially in the form of Exhibit C hereto and to determine (including, without
limitation, based on one or more certificates from the Person transferring such Trust Certificate and/or the Note Registrar) that any transfer of a Trust Certificate described in such certification delivered to the Owner Trustee complies with
Section 3.10(d), the Owner Trustee and Certificate Registrar shall have no obligation to determine whether or not any transfer or exchange or proposed or purported transfer or exchange of a Trust Certificate is permitted under or in
accordance with this Agreement, the Securities Act or applicable state securities laws, and the Owner Trustee and Certificate Registrar shall have no personal liability to any Person in connection with any transfer or exchange or proposed or
purported transfer or exchange (and/or registration thereof). 
 (f) No transfer, sale, pledge or other disposition of a
Trust Certificate shall be made to any Person unless (i) such Person is not acquiring, and agrees that it will not sell, transfer, assign, participate, pledge or otherwise dispose of any Trust Certificate (or interest therein) or cause any
Trust Certificate (or interest therein) to be marketed, on or through an “established securities market” within the meaning of Section 7704(b) of the Code, including, without limitation, an interdealer quotation system that regularly
disseminates firm buy or sell quotations, (ii) such transfer will not cause the Trust to have more than one hundred holders of Trust Certificates, and (iii) either (A) such Person is not, and agrees that it will not become, for U.S.
federal income tax purposes a partnership, subchapter S corporation, grantor trust or other pass-through entity, or (B) if such Person is such an entity for U.S. federal income tax purposes, (x) none of the direct or indirect beneficial
owners of any interests in such Person has more than 50% of the value of the interests in such Person attributable to the interests of such Person in any Trust Certificate or other interest (direct or indirect) in the Trust, and (y) it will not
be a principal purpose of the arrangement involving the investment of such Person in any Trust Certificate to permit any partnership to satisfy the 100 partner limitation of Treas. Reg. Section 1.7704-1(h)(1)(ii). 

ARTICLE IV 

ACTIONS BY OWNER TRUSTEE 
  

	 	Section 4.01	Prior Notice to and Consent by Certificateholders with Respect to Certain Matters. 


With respect to the following matters, the Trust shall not take action unless either (i), at least ten (10) Business Days before the
taking of such action, the Owner Trustee shall have notified the Certificateholders and the Trust Depositor (who shall promptly forward such notice to any Rating Agency) in writing of the proposed action and the Certificateholders holding a
Percentage Interest of not less than 66-2/3% shall not, prior to the tenth (10th) Business Day after such notice is given, have notified the Owner Trustee in writing that such Certificateholders have withheld consent or provided alternative
direction or (ii) Certificateholders holding a Percentage Interest of not less than 66-2/3% direct the Owner Trustee to take action with respect to: 
 (a) the initiation of any claim or lawsuit by the Trust and the compromise of any action, claim or lawsuit brought by or against the Trust; 

  
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 (b) the election by the Trust to file an amendment to the Certificate of Trust (unless such
amendment is required to be filed under the Statutory Trust Statute); 
 (c) the amendment of the Indenture or any other
Transaction Document in circumstances where the consent of any Noteholder is required; 
 (d) the amendment of the Indenture or
any other Transaction Document in circumstances where the consent of any Noteholder is not required and such amendment may reasonably be expected to adversely affect the interest of the Certificateholders; 

(e) such Certificateholders direct the Owner Trustee to initiate any amendment to any Transaction Document or to seek any waiver or other
modification thereof; 
 (f) the appointment pursuant to the Indenture of a successor paying agent or Trustee or pursuant to
this Trust Agreement of a successor Certificate Registrar, or paying agent, or the consent to the assignment by the Trustee or Certificate Registrar of its obligations under the Indenture or this Trust Agreement, as applicable; 

(g) the consent to the calling or waiver of any Event of Default of any Transaction Document or such Certificateholders direct the Owner
Trustee to call or waive any such Event of Default; 
 (h) the consent to the assignment of the Trustee or Servicer of their
respective obligations under any Transaction Document; 
 (i) except as provided in Article IX hereof, the
dissolution, termination or liquidation of the Trust in whole or in part; 
 (j) the merger or consolidation of the Trust with
or into any other entity, or conveyance or transfer of all or substantially all of the Trust’s assets to any other entity; 

(k) the incurrence, assumption or guaranty by the Trust of any indebtedness other than as set forth in this Agreement or the Transaction
Documents; 
 (l) the doing of any act which would make it impossible to carry on the ordinary business of the Trust as
described in Section 2.03 hereof; 
 (m) the confession of a judgment against the Trust; 

(n) the possession of Loan Assets or other Collateral, or assignment of the Trust’s right to property, for other than a purpose
permitted under Section 2.03; 
 (o) the lending by the Trust of any funds to any entity, except as permitted or
required under the Sale and Servicing Agreement with respect to the Loan Assets or other Collateral; 

  
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 (p) the change in the Trust’s purpose and powers from those set forth in this Trust
Agreement; or 
 (q) the removal or replacement of the Servicer or the Trustee. 

In addition, the Trust shall not commingle its assets with those of any other entity other than as permitted under the Transaction
Documents. The Trust shall maintain its financial and accounting books and records separate from those of any other entity; provided that the Trust may be consolidated with another entity in accordance with U.S. generally accepted accounting
principles and, when so consolidated will note on its consolidated financial statement that the Trust’s assets are not available to satisfy the claims of creditors of such consolidating Person. Except as expressly set forth herein, the Trust
shall pay its indebtedness, operating expenses and liabilities from its own funds, and the Trust shall not pay the indebtedness, operating expenses and liabilities of any other entity. 

 

	 	Section 4.02	Action by Certificateholders with Respect to Bankruptcy. 

 To the extent permitted by Applicable Law, the Trust shall not have the power, without the unanimous prior written approval of the Certificateholders, and to the extent otherwise consistent with the
Transaction Documents, to (i) institute proceedings to have the Trust declared or adjudicated as bankrupt or insolvent, (ii) consent to the institution of bankruptcy or insolvency proceedings against the Trust, (iii) file a petition
or consent to a petition seeking reorganization or relief on behalf of the Trust under any applicable federal or state law relating to bankruptcy, (iv) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
any similar official) of the Trust or a substantial portion of the property of the Trust, (v) make any assignment for the benefit of the Trust’s creditors, (vi) cause the Trust to admit in writing its inability to pay its debts
generally as they become due, or (vii) take any action, or cause the Trust to take any action, in furtherance of any of the foregoing (any of the above, a “Bankruptcy Action”). So long as the Indenture remains in effect, and to
the extent permitted by Applicable Law, no Certificateholder shall have the power to take and shall not take any Bankruptcy Action with respect to the Trust or direct the Owner Trustee to take any Bankruptcy Action with respect to the Trust.

  

	 	Section 4.03	Restrictions on Certificateholders’ Power. 

 The Certificateholders shall not direct the Owner Trustee to take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Trust Agreement or any of the Transaction Documents or would cause a violation of any of the Transaction Documents or would be contrary to or inconsistent with Section 2.03, nor shall the Owner Trustee be obligated to follow
any such direction, if given. 
  

	 	Section 4.04	Majority Control. 

 Except as expressly provided herein or in any supplement to this Trust Agreement, any action or direction that may be taken or given by the Certificateholders under this Trust Agreement may not be taken
or given unless agreed to or directed by the Majority Certificateholders. Except as expressly provided herein or in any supplement to this Trust Agreement, any written notice of the Certificateholders delivered pursuant to this Trust Agreement shall
be effective if signed by Majority Certificateholders at the time of the delivery of such notice. 

  
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 ARTICLE V 
 APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 
  

	 	Section 5.01	Establishment of Trust Account. 

 (a) For the benefit of the Certificateholders, the Securities Intermediary shall establish and maintain in the name of the Trust an Eligible Deposit Account with the Trustee (the “Certificate
Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. Each Qualified Institution maintaining the Certificate Account shall agree in writing (and the Trustee
does hereby so agree) to comply with all instructions originated by the Trustee or any other party acting as paying agent, or Owner Trustee directing the disposition of funds in the account without the further consent of the Trust. 

(b) The Trust shall possess all right, title and interest in all funds on deposit from time to time in the Certificate Account and in all
proceeds thereof. Except as provided in Section 3.09 or as otherwise expressly provided herein, the Certificate Account shall be under the sole dominion and control of the Trustee for the benefit of the Certificateholders. If, at any
time, the Certificate Account ceases to be an Eligible Deposit Account, the Securities Intermediary shall within ten (10) Business Days (or such longer period, not to exceed 30 calendar days, as to which any Rating Agency may consent)
establish a new Certificate Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Certificate Account. 
  

	 	Section 5.02	Application of Trust Funds. 

 (a) On each Payment Date and at and in accordance with the instruction of the Servicer, the Trustee shall distribute to the Certificateholders, pro rata based on their
respective Percentage Interests, the amounts deposited in the Certificate Account received from the Trustee pursuant to the Indenture or the Sale and Servicing Agreement. 

(b) On each Payment Date, the Trustee shall, or shall cause the Servicer to, make available to each Certificateholder the statement or
statements provided to the Trustee by the Servicer pursuant to the Indenture and the Sale and Servicing Agreement with respect to such Payment Date. 
 (c) In the event that any withholding tax is imposed on the Trust’s payment (or allocations of income) to a Certificateholder, such tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.02. The Trustee is hereby authorized and directed to retain from amounts otherwise distributable to the Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee or the Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by Applicable Law, pending the outcome of such
proceedings); provided that the Trustee shall not be responsible for determining whether any such tax is owed and may rely for such purposes on the written 

  
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direction of the Trust Depositor or Servicer. The amount of any withholding tax imposed with respect to a Certificateholder shall be treated as cash distributed to such Certificateholder at the
time it is withheld by the Trust and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a distribution (such as a distribution to a non-U.S. Certificateholder), the Trustee may in
its sole discretion withhold such amounts in accordance with this Section 5.02(c). In the event that a Certificateholder wishes to apply for a refund of any such withholding tax, the Owner Trustee or the Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such Certificateholder agrees to reimburse the Owner Trustee and the Trustee, in its capacity as paying agent, for any out-of-pocket expenses incurred. The Certificateholders
shall supply the Owner Trustee, the Trustee and any paying agent with Internal Revenue Service forms, with appropriate supporting documentation, and such other certificates, information or forms that the Owner Trustee, the Trustee or any paying
agent may request from time to time in connection with any withholding tax or the application for a refund thereof. 
  

	 	Section 5.03	Method of Payment. 

 Subject to Section 9.01(c), distributions required to be made to Certificateholders on any Payment Date shall be made to each Certificateholder of record on the preceding Record Date either by
wire transfer, in immediately available funds, to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided to the Certificate Registrar and the Trustee or
any other party acting as paying agent appropriate written instructions at least five (5) Business Days prior to such Payment Date or, if not, by check mailed to such Certificateholder at the address of such holder appearing in the Certificate
Register. 
  

	 	Section 5.04	No Segregation of Moneys; No Interest. 

 Subject to Sections 5.01 and 5.02, moneys received by the Owner Trustee, the Trustee or any paying agent hereunder need not be segregated in any manner except to the extent required by
any Applicable Law or the Sale and Servicing Agreement and may be deposited under such general conditions as may be prescribed by any Applicable Law, and neither a paying agent, the Trustee, the Trust Company nor the Owner Trustee shall be liable
for any interest thereon. 
  

	 	Section 5.05	Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others. 


The Trust Depositor shall (a) maintain (or cause to be maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver (or cause to be delivered) to each Certificateholder, as may be required by the Code and applicable Treasury Regulations, such information as may be required (including, if applicable, Schedule K-1) to
enable each Certificateholder to prepare its federal and state income tax returns, (c) prepare or cause to be prepared, and file, or cause to be filed, all tax returns, if any, relating to the Trust (including, if applicable, a partnership
information return, IRS Form 1065) and in writing direct the Owner Trustee to make such elections as from time to time may be required or appropriate under any applicable state or federal statute or any rule or regulation thereunder so as to
maintain the Trust’s characterization as a partnership for federal income tax purposes or an entity the 

  
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existence of which is disregarded as separate from the Certificateholders under applicable Treasury Regulations depending on whether the Trust Certificates are held by more than one owner or one
owner, (d) collect or cause to be collected any withholding tax as described in and in accordance with Section 5.02(c) with respect to income or distributions to Certificateholders and (e) upon the request of the Trust, provide
to necessary parties such reasonably current information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act. The Owner Trustee shall make all elections pursuant to this Section 5.05 as directed by the Trust
Depositor in writing. 
  

	 	Section 5.06	Signature on Returns; Tax Matters Partner. 

 (a) The Servicer shall sign on behalf of the Trust the tax returns of the Trust, and any other returns as may be required by law if any, as the same shall be furnished to it in execution form by the Trust
Depositor, unless Applicable Law requires a Certificateholder to sign such documents, in which case such documents shall not be furnished to the Servicer, but shall be furnished to and signed by the Trust Depositor so long as it is a
Certificateholder, in its capacity as “tax matters partner” (if applicable), or such other Certificateholder as may have been designated “tax matters partner” (if applicable). In executing any such return, the Servicer shall rely
entirely upon, and shall have no personal liability for, information or calculations provided by the Trust Depositor. 
 (b) In
the event the Trust Depositor is a Certificateholder and the Trust is characterized as a partnership, the Trust Depositor shall be the “tax matters partner” of the Trust pursuant to the Code. 

ARTICLE VI 

AUTHORITY AND DUTIES OF OWNER TRUSTEE 
  

	 	Section 6.01	General Authority. 

 Each of the Owner Trustee, the Servicer, the Administrator and the Trust Depositor shall have power and authority, and each is hereby authorized and empowered, in the name and on behalf of the Trust, to
execute and deliver the Transaction Documents to which the Trust is to be a party and each certificate or other document attached as an Exhibit to or contemplated by the Transaction Documents to which the Trust is to be a party and any
amendment or other agreement or instrument, in each case, in such form as the Owner Trustee, the Servicer, the Administrator or the Trust Depositor shall approve, as evidenced conclusively by the Owner Trustee’s, the Servicer’s, the
Administrator’s or the Trust Depositor’s execution thereof. In addition to the foregoing, the Owner Trustee shall have power and authority and hereby is further authorized (but shall not be obligated) to take all actions required of the
Trust pursuant to the Transaction Documents. The Trust and the Owner Trustee are hereby authorized to delegate such power and authority, or any portion thereof, with respect to the duties and obligations of the Trust and/or the Owner Trustee under
this Agreement and the other Transaction Documents to the Servicer and the Administrator. The Owner Trustee shall have power and authority and hereby is further authorized from time to time to take such action as the Servicer recommends and directs
with respect to the Transaction Documents. 

  
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	 	Section 6.02	General Duties. 

 It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of the duties expressly required to be performed by the Owner Trustee under the terms of this Agreement in the
interest of the Certificateholders, subject to the Transaction Documents and in accordance with the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Transaction Documents to the extent the Trust Depositor has agreed hereunder or the Servicer has agreed in the Sale and Servicing Agreement or the Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee or of the Trust under any Transaction Document, and the Owner Trustee shall not be held personally liable for the default or failure of the Trust Depositor, the Administrator or the Servicer to carry out
its obligations under the Sale and Servicing Agreement, the Administration Agreement or this Trust Agreement, as applicable. 
  

	 	Section 6.03	Action upon Instruction. 

 (a) Subject to Article IV and Section 7.01 and in accordance with the terms of the Transaction Documents, the Certificateholders may by written instruction direct the Owner Trustee
in the management of the Trust. Such direction may be exercised at any time by written instruction to the Owner Trustee of the Certificateholders pursuant to Article IV. 

(b) The Owner Trustee shall not be required to take any action hereunder or under any Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such action is likely to result in personal liability on the part of the Owner Trustee or is contrary to the terms hereof or of any Transaction Document or is otherwise contrary
to Applicable Law. 
 (c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or
required by the terms of this Trust Agreement or under any Transaction Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted and stating that if the Owner Trustee shall not have received appropriate instruction within ten (10) Business Days of such notice (or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement and the other Transaction Documents as it shall deem to be in the best interests
of the Certificateholders and shall have no personal liability to any Person for such action or inaction. To the extent the Owner Trustee acts or refrains from acting in good faith in accordance with any written instruction received from Majority
Certificateholders, the Owner Trustee shall not be personally liable on account of such action or inaction to any Person. If the Owner Trustee shall not have received appropriate instruction within ten (10) Business Days of such notice (or
within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement and the
other Transaction Documents as it shall deem to be in the best interests of the Certificateholders and shall have no personal liability to any Person for such action or inaction. 

  
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 (d) In the event that the Owner Trustee is unsure as to the application of any provision of
this Trust Agreement or any Transaction Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Trust Agreement permits any determination
by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required or permitted to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders requesting instruction and stating that if the Owner Trustee shall not have received appropriate instruction within ten (10) Business Days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement or the other Transaction Documents as it
shall deem to be in the best interests of the Certificateholders, and shall have no personal liability to any Person for such action or inaction. To the extent that the Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction received from Majority Certificateholders, the Owner Trustee shall not be personally liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate instruction within ten
(10) Business Days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action
not inconsistent with this Agreement or the other Transaction Documents as it shall deem to be in the best interests of the Certificateholders, and shall have no personal liability to any Person for such action or inaction. 

 

	 	Section 6.04	No Duties Except as Specified in this Agreement or in Instructions. 


The Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, the Transaction Documents or any document contemplated hereby or thereby, except as expressly provided by the terms of this
Trust Agreement or in any document or written instruction received by the Owner Trustee pursuant to Section 6.03; and no implied duties or obligations shall be read into this Trust Agreement or any other Transaction Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for the Trust or to record this Trust Agreement or any Transaction Document. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Trust Estate that result from actions by, or claims against, the Owner Trustee in its individual capacity that are not related to the Trust, this Trust Agreement, the Trust Company’s serving
as Owner Trustee or the ownership or the administration of the Trust Estate. 
  

	 	Section 6.05	Restrictions. 

 The Owner Trustee shall not take any action that, (i) is inconsistent with the purposes of the Trust set forth in Section 2.03 or (ii) to the actual knowledge of a Responsible
Officer of the Owner Trustee, would result in the Trust’s becoming taxable as a corporation for federal income tax purposes. The Certificateholders shall not direct the Owner Trustee to take action that would violate the provisions of this
Section 6.05. 

  
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 ARTICLE VII 
 CONCERNING THE OWNER TRUSTEE 
  

	 	Section 7.01	Acceptance of Trusts and Duties. 

 The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder but only upon the terms of this Trust Agreement. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Estate upon the terms of this Trust Agreement and the other Transaction Documents. The Owner Trustee shall not be personally answerable or accountable hereunder or under any other Transaction
Document under any circumstances, except to the Trust and the Certificateholders (i) for its own willful misconduct, bad faith or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in
Section 7.03 expressly made by the Owner Trustee. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence): 
 (a) the Owner Trustee shall not be personally liable for any error of judgment made by a Responsible Officer of the Owner Trustee which did not result from gross negligence or willful misconduct on the
part of such Responsible Officer; 
 (b) the Owner Trustee shall not be personally liable with respect to any action taken or
omitted to be taken by it in accordance with the instructions of the Trust Depositor, the Servicer or of Certificateholders holding such Percentage Interest as is required with respect thereto under this Agreement or the applicable Transaction
Documents; 
 (c) no provision of this Trust Agreement or any other Transaction Document shall require the Owner Trustee to
expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its rights or powers hereunder or under any Transaction Document if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; 
 (d)
under no circumstances shall the Owner Trustee be personally liable for indebtedness evidenced by or arising under any of the Transaction Documents, including the principal of and interest on the Notes; 

(e) the Owner Trustee shall not be personally responsible (i) for or in respect of the validity or sufficiency of this Trust
Agreement or for the due execution hereof by the Trust Depositor, (ii) for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate, or (iii) for or in respect of the validity or sufficiency of the
Transaction Documents, other than the Owner Trustee’s due execution of the Trust Certificate on behalf of the Trust, and the Owner Trustee shall in no event assume or incur any personal liability, duty, or obligation to any Noteholder or any
Certificateholder other than as expressly provided for herein or expressly agreed to in the Transaction Documents; 

  
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 (f) the Owner Trustee shall not be personally liable for the default or misconduct of the
Trust Depositor, the Trustee, the Administrator or the Servicer or any other Person under any of the Transaction Documents or otherwise and the Owner Trustee shall have no obligation or personal liability to monitor or perform the obligations of the
Trust under this Trust Agreement or the other Transaction Documents that are required to be performed by the Trustee under the Indenture, the Administrator under the Administration Agreement or the Servicer or the Trust Depositor under the Sale and
Servicing Agreement; and 
 (g) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or otherwise or in relation to this Trust Agreement or any other Transaction Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the
Owner Trustee to perform any discretionary act enumerated in this Trust Agreement or in any other Transaction Document shall not be construed as a duty, and the Owner Trustee shall not be personally answerable therefor other than to the Trust and
the Certificateholders for its willful misconduct, bad faith or gross negligence in the performance of any such act. 
  

	 	Section 7.02	Furnishing of Documents. 

 The Owner Trustee shall furnish to the Certificateholders duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents. 
  

	 	Section 7.03	Representations and Warranties. 

 The Owner Trustee hereby represents and warrants to the Trust Depositor, for the benefit of the Trust Depositor and Certificateholders, that: 

(a) It is national banking association, duly organized and validly existing in good standing under the laws of the United States of
America. It has all requisite power and authority to execute, deliver and perform its obligations under this Trust Agreement. 

(b) It has taken all action necessary to authorize the execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Trust Agreement on its behalf. 
 (c) Neither the execution nor the delivery by it of this Trust Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions
hereof, will (i) contravene any federal or Delaware state law, governmental rule or regulation governing the trust powers of the Trust Company or any judgment or order binding on it, (ii) constitute any default under its charter documents
or organizational documents or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound or (iii) result in the creation or imposition of any lien, charge or encumbrance on
the Trust Estate resulting from actions by or claims against the Owner Trustee individually which are unrelated to this Agreement or the other Transaction Documents. 

  
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 (d) This Agreement constitutes a legal, valid and binding obligation of the Owner Trustee
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and similar laws relating to creditors’ rights generally and creditors of national banking associations and subject to general principles of
equity. 
 (e) To the Owner Trustee’s best knowledge, there are no proceedings or investigations pending, or to the Owner
Trustee’s knowledge threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Owner Trustee or its properties: (A) asserting the invalidity of this Trust
Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Trust Agreement or (C) seeking any determination or ruling that might materially and adversely affect the performance by the Owner Trustee
of its obligations under, or the validity or enforceability of, this Trust Agreement. 
  

	 	Section 7.04	Reliance; Advice of Counsel. 

 (a) The Owner Trustee shall incur no personal liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed by an appropriate Person or Persons. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any Person as
conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of determination of which is not specifically prescribed herein, the Owner Trustee may for
all purposes hereof require and rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officer or agent of an appropriate Person or Persons or of any manager thereof, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. 
 (b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Trust Agreement or the other Transaction Documents, the Owner Trustee may act
directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Owner Trustee shall not be personally liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care, and may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be personally liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such Persons. The Owner Trustee shall have no duty to monitor or supervise any other trustee, the Certificate
Registrar, a paying agent, the Trust Depositor, the Holders, the Servicer, any Subservicer, the Trustee, the Administrator, any agent, independent contractor, officer, employee or manager of the Trust, any delegatee of any trustee, or any other
Person. 
  

	 	Section 7.05	Not Acting in Individual Capacity. 

 Except as provided in this Article VII, in performing its duties hereunder, the Trust Company acts solely as Owner Trustee hereunder and not in its individual capacity, and all


  
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Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this Trust Agreement or any Transaction Document shall look only to the Trust Estate for payment
or satisfaction thereof. 
  

	 	Section 7.06	Owner Trustee Not Liable for Trust Certificates or Loans. 

 The recitals contained herein and in the Trust Certificates shall be taken as the statements of the Trust Depositor and the Owner Trustee assumes no personal responsibility for the correctness thereof.
The Owner Trustee makes no representations as to the validity or sufficiency of this Trust Agreement, of any other Transaction Document or of the Trust Certificates (other than as to the due execution by the Owner Trustee of the Trust Certificates
on behalf of the Trust) or the Notes, or of any Loan or related documents. The Owner Trustee shall at no time have any personal responsibility or liability for or with respect to the legality, validity and enforceability of any Loan, or for or with
respect to the sufficiency of the Trust Estate or its ability to generate the payments to be distributed to Certificateholders under this Trust Agreement or the Noteholders under the Indenture, including, without limitation: (a) the existence,
condition and ownership of any collateral securing a Loan; (b) the existence and enforceability of any insurance thereon; (c) the validity of the assignment of any Loan to the Trust or of any intervening assignment; (d) the
performance or enforcement of any Loan; and (e) the compliance by the Trust Depositor or the Servicer with any warranty or representation made under any Transaction Document or in any related document or the accuracy of any such warranty or
representation, or any action of the Trust Depositor, the Trustee, the Administrator or the Servicer or any subservicer taken in the name of the Owner Trustee. 
  

	 	Section 7.07	Owner Trustee May Own Trust Certificates and Notes. 

 The Owner Trustee in its individual or any other capacity may become the owner or pledgee of Trust Certificates or Notes and may deal with the Trust Depositor, the Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee. 
 ARTICLE VIII 

COMPENSATION OF OWNER TRUSTEE 
  

	 	Section 8.01	Owner Trustee’s Fees and Expenses. 

 The Owner Trustee shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof between the Trust Depositor and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Trust Depositor for its other reasonable expenses hereunder, including, but not limited to, the reasonable compensation, expenses and disbursements of such agents, representatives, experts and
counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder. The Trust Depositor shall be responsible for such fees and expenses only to the extent the same are not paid pursuant to
the Priority of Payments, such fees and expenses to be paid to the Owner Trustee in accordance with the Priority of Payments. 

  
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	 	Section 8.02	Indemnification. 

 Trust Depositor shall be liable as primary obligor for, and shall indemnify, defend and hold harmless the Owner Trustee (in its individual capacity and in its capacity as Owner Trustee) and its
successors, assigns, agents and servants (collectively, the “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits (provided that any indemnification for
damages is limited to actual damages, not consequential, special or punitive damages), and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively,
“Expenses”) which may at any time be imposed on, incurred by or asserted against an Indemnified Party in any way relating to or arising out of this Trust Agreement, the Transaction Documents, the Trust Estate, the administration of
the Trust Estate or the action or inaction of the Owner Trustee hereunder, except only that the Trust Depositor shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from the gross
negligence or willful misconduct of such Indemnified Party. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee and the termination of this Trust Agreement. If an Indemnified Party seeks
indemnification hereunder it shall promptly notify the Trust Depositor if a Responsible Officer of the Indemnified Party receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim
of indemnification hereunder but failure to provide such notice shall not relieve the Trust Depositor of its indemnification obligations hereunder unless the Trust Depositor is deprived of material substantive or procedural rights or defenses as a
result thereof. The Trust Depositor shall assume (with the consent of the Indemnified Party, such consent not to be unreasonably withheld) the defense and any settlement of any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against the Indemnified Party in respect of such claim; provided that the Owner Trustee shall be entitled to retain separate counsel at the
expense of the Trust Depositor in the event that a conflict of interest or the possible imposition of criminal liability. If the consent of the Indemnified Party required in the immediately preceding sentence is unreasonably withheld, the Trust
Depositor is relieved of its indemnification obligations hereunder with respect to such Person to the extent its defense of its claims are prejudiced thereby. The Trust Depositor shall be responsible for such indemnification to the extent the same
is not paid pursuant to the Priority of Payments, such indemnification to be paid first in accordance with the Priority of Payments. 
  

	 	Section 8.03	Payments to the Owner Trustee. 

 Any amounts paid to the Owner Trustee pursuant to this Article VIII shall be deemed not to be a part of the Trust Estate immediately after such payment. 

  
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 ARTICLE IX 
 TERMINATION OF TRUST AGREEMENT 
  

	 	Section 9.01	Termination of Trust Agreement. 

 (a) The Trust shall dissolve, liquidate and be wound up in accordance with Section 3808 of the Statutory Trust Statute upon (i) the final distribution by the Trustee or any other party acting as
paying agent of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture, the Sale and Servicing Agreement and Article V, upon which the Trustee or any other party acting as paying agent
shall notify the Owner Trustee and the Trust Depositor in writing and (ii) the written consent of the Certificateholders. The bankruptcy, liquidation, termination, dissolution, death or incapacity of any Certificateholder shall not
(x) operate to dissolve or terminate this Trust Agreement or the Trust or (y) entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Trust Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto. 
 (b) Except as provided in Section 9.01(a), neither the Trust Depositor nor any Certificateholder shall be entitled to revoke or terminate the Trust. 

(c) Notice of any termination of the Trust, specifying the Payment Date upon which the Certificateholders shall surrender their Trust
Certificates to the Trustee or any other party acting as paying agent of the Trustee for payment of the final distribution and cancellation, shall be given by the Trustee or any other party acting as paying agent by letter to Certificateholders
mailed within five (5) Business Days of receipt of written notice of such termination from the Servicer stating, as set forth in such notice from the Servicer, (i) the Payment Date upon or with respect to which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust Certificates at the office of the Trustee therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and surrender of the Trust Certificates at the office of the Trustee therein specified. The Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Owner Trustee at the time such notice is given to Certificateholders. Upon presentation and surrender of the Trust Certificates, the Trustee shall cause to be distributed to Certificateholders amounts distributable on such
Payment Date pursuant to Section 5.02. 
 In the event that all of the Certificateholders shall not surrender their
Trust Certificates for cancellation within six months after the date specified in the above mentioned written notice, the Trustee shall give a second written notice to the remaining Certificateholders to surrender their Trust Certificates for
cancellation and receive the final distribution with respect thereto. If within one year after the second notice all the Trust Certificates shall not have been surrendered for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders concerning surrender of their Trust Certificates, and the cost thereof shall be paid out of the funds and other assets that shall remain subject to this Trust Agreement.
Any funds remaining in the Trust after exhaustion of such remedies shall be distributed by the Trustee or any other party acting as paying agent, to the Trust Depositor. Certificateholders shall thereafter look solely to the Trust Depositor as
general unsecured creditors. 

  
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 (d) Upon the winding up of the Trust and payment of all liabilities in accordance with
Section 3808 of the Statutory Trust Statute, the paying agent shall make a final distribution to the Certificateholders in accordance with Article V and Section 9.01(c) above and the Administrator shall instruct the Owner
Trustee to cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with the Secretary of State in accordance with the provisions of Section 3810 of the Statutory Trust Statute. Thereupon, the Trust and this Trust
Agreement (other than the rights, benefits, protections, privileges and immunities of the Owner Trustee and the Trust Company) shall terminate. 
 ARTICLE X 
 SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

  

	 	Section 10.01	Eligibility Requirements for Owner Trustee. 

 The Owner Trustee shall at all times be a Person (a) satisfying the provisions of Section 3807(a) of the Statutory Trust Statute; (b) authorized to exercise corporate trust powers;
(c) having a combined capital and surplus of (or having a parent with a combined capital and surplus of) at least $100,000,000 and subject to supervision or examination by federal or state banking authorities; and (d) having (or having a
parent that has) an investment grade rating with respect to S&P and Moody’s. If such Person shall publish reports of condition at least annually pursuant to Applicable Law or the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 10.01, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at
any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section 10.01, the Owner Trustee shall resign immediately in the manner and with the effect specified in Section 10.02.

  

	 	Section 10.02	Resignation or Removal of Owner Trustee. 

 (a) The Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Trust Depositor. Upon receiving such notice of resignation, the Trust
Depositor shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy shall be delivered to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Owner Trustee, at the expense of the Trust Depositor, may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee. 
 (b) The Trust Depositor may remove the Owner Trustee
at any time without cause or at any time (1) that the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.01 and shall fail to resign after written request therefor by the Trust Depositor or
(2) the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt 

  
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or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation. If the Trust Depositor shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Trust Depositor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one (1) copy of which instrument shall be delivered to the outgoing Owner Trustee so removed, and one (1) copy shall be delivered to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee in its individual capacity. 
 (c) Any resignation or removal of the Owner Trustee and appointment of a successor
Owner Trustee pursuant to any of the provisions of this Section shall not become effective until the appointment by the successor Owner Trustee pursuant to Section 10.03 has become effective and, in the case of removal, payment of all
accrued and unpaid fees and expenses owed to the outgoing Owner Trustee in its individual capacity. The Trust Depositor shall provide notice of such resignation or removal of the Owner Trustee to all Holders, the Trustee, the Servicer and any Rating
Agency. 
  

	 	Section 10.03	Successor Owner Trustee. 

 (a) Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Trust Depositor and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective, and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under this Trust Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of fees, expenses and indemnity owing to it
in its individual capacity deliver to the successor Owner Trustee all documents and statements and monies held by it under this Trust Agreement; and the Trust Depositor and the predecessor Owner Trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations. 

(b) No successor Owner Trustee shall accept appointment as provided in this Section 10.03 unless at the time of such
acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.01. 
 (c) Upon acceptance of
appointment by a successor Owner Trustee pursuant to this Section 10.03, the Trust Depositor shall mail notice thereof to all Holders, the Trustee, the Servicer and any Rating Agency. If the Trust Depositor shall fail to mail such notice
within ten (10) Business Days after acceptance of such appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Trust Depositor. Furthermore, upon acceptance of
appointment by a successor Owner Trustee pursuant to this Section 10.03, such successor Owner Trustee shall file an amendment to the Certificate of Trust with the Secretary of State in accordance with the provisions of Section 3810
of the Statutory Trust Statute. 

  
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	 	Section 10.04	Merger or Consolidation of Owner Trustee. 

 Any Person into which the Owner Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Owner Trustee
shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be the successor of the Owner Trustee hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided that such Person shall be eligible pursuant to Section 10.01; provided, further, that the Owner Trustee shall mail
notice of such merger or consolidation to all Holders, the Trustee, the Servicer and the Trust Depositor (who shall promptly forward such notice to any Rating Agency) and file an amendment to the Certificate of Trust with the Secretary of State in
accordance with the provisions of Section 3810 of the Statutory Trust Statute. 
  

	 	Section 10.05	Appointment of Co-Trustee or Separate Trustee. 

 (a) Notwithstanding any other provisions of this Trust Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Estate may at the time
be located, the Trust Depositor and the Owner Trustee acting jointly shall have the power and authority to execute and deliver all instruments to appoint one or more Persons approved by the Trust Depositor and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or separate trustees, of all or any part of the Trust Estate, and to vest in such Person, in such capacity, such title to the Trust Estate or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts as the Trust Depositor and the Owner Trustee may consider necessary or desirable. If the Trust Depositor shall not have joined in such appointment within 15 Business
Days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power, authority and authorization to make such appointment. No co-trustee or separate trustee under this Trust Agreement shall be required to meet the terms
of eligibility as a successor Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.03. 

(b) Each separate trustee and co-trustee shall, to the extent permitted by any Applicable Law, be appointed and act subject to the
following provisions and conditions: 
 (i) all rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent that under any Applicable Law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely
at the direction of the Owner Trustee; 

  
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 (ii) no separate trustee or co-trustee under this Trust Agreement or the
Owner Trustee shall be personally liable by reason of any act or omission of any other trustee under this Trust Agreement; and 
 (iii) the Trust Depositor and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee. 

(c) Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Trust Agreement and the conditions of this Article X. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Trust Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to each of the Trust Depositor, the Trustee and the Servicer. 
 (d) Any separate trustee or
co-trustee may at any time appoint the Owner Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Trust Agreement on its behalf and in its name,
and the Owner Trustee shall have the full power and authority to delegate its responsibilities to the Servicer as provided for herein and in the other Transaction Documents. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor co-trustee or separate
trustee. 
 ARTICLE XI 
 MISCELLANEOUS 
  

	 	Section 11.01	Supplements and Amendments. 

 (a) This Trust Agreement may be amended by the Trust Depositor, the Trust Company, and the Owner Trustee, with the consent of the Majority Noteholders (so long as the Notes are outstanding) and the
consent of the Majority Certificateholders for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Trust Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that such action shall not, as evidenced by an Officer’s Certificate of the Servicer, materially adversely affect the interests of any Noteholder or Certificateholder. Notwithstanding anything to the contrary
contained herein, this Trust Agreement may be amended by the Trust Depositor, the Trust Company, and the Owner Trustee without the consent of any Noteholder or Certificateholder to cure any ambiguity or to correct or supplement any provisions in
this Trust Agreement in a manner consistent with the intent of this Trust Agreement and the Transaction Documents. 

  
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 (b) Except as provided in Section 11.01(a) hereof, this Trust Agreement may be
amended from time to time by the Trust Depositor, the Trust Company, and the Owner Trustee, with the consent of the Majority Noteholders (so long as the Notes are outstanding) and the consent of the Majority Certificateholders, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Trust Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders hereunder; provided that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of any amounts received on the Loans which are required to be distributed on any Note or Trust Certificate without the consent of the Holder of that
Note or Trust Certificate or (b) reduce the aforesaid percentage of Noteholders and the aggregate Percentage Interest of Certificateholders required to consent to any such amendment, without the consent of the holders of all the outstanding
Notes and Trust Certificates. 
 (c) Promptly after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent to the Trustee and the Trust Depositor (who shall promptly forward such notice to any Rating Agency) and the Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder and Noteholder. 
 (d) It shall not be necessary for the consent of
Certificateholders or Noteholders pursuant to this Section 11.01 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders or Noteholders provided for in this Trust Agreement or in any other Transaction Document) and of evidencing the authorization of the execution thereof by Certificateholders or Noteholders
shall be subject to such reasonable requirements as the Owner Trustee may prescribe. 
 (e) Promptly after the execution of any
amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such amendment with the Secretary of State of Delaware. 
 (f) Prior to the execution of any amendment to this Trust Agreement or the Certificate of Trust, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Trust Agreement and an officer’s certificate of the Trust Depositor that all conditions precedent to the execution and delivery of such amendment have been met. The Owner Trustee
and the Trust Company may, but shall not be obligated to, enter into any such amendment that affects the Owner Trustee’s or the Trust Company’s own rights, duties or immunities under this Trust Agreement or otherwise. Notwithstanding any
other provision herein or elsewhere, no provision, amendment, supplement, waiver, or consent of or with respect to any of the Transaction Documents that affects any right, power, authority, duty, benefit, protection, privilege, immunity or indemnity
of the Owner Trustee or the Trust Company shall be binding on the Owner Trustee or the Trust Company unless the Owner Trustee and the Trust Company shall have expressly consented thereto in writing. 

  
 32 










	 	Section 11.02	No Legal Title to Trust Estate in Certificateholders. 

 The Certificateholders shall not have legal title to any part of the Trust Estate. The Certificateholders shall be entitled to receive distributions with respect to their undivided beneficial ownership
interest therein only in accordance with Articles V and IX. No transfer, by operation of law or otherwise, of any right, title or interest of the Certificateholders to and in their beneficial ownership interest in the Trust Estate
shall operate to dissolve the Trust or terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Trust Estate. 

 

	 	Section 11.03	Limitations on Rights of Others. 

 The provisions of this Trust Agreement are solely for the benefit of the Owner Trustee, the Trust Company, the Indemnified Parties, the Trust Depositor, the Certificateholders and, to the extent expressly
provided herein, the Trustee and the Noteholders, and nothing in this Trust Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions contained herein. 
  

	 	Section 11.04	Notices. 


(a) Any request, demand, authorization, direction, notice, consent, waiver or Act of Certificateholders or other documents provided or
permitted by this Trust Agreement shall be in writing to and mailed, return receipt requested, hand delivered, sent by overnight courier service guaranteeing next day delivery or by facsimile or telecopy in legible form, if to the Owner Trustee,
addressed to its Corporate Trust Office; or if to the Trust Depositor, addressed to Hercules Capital Funding 2012-1 LLC, c/o Hercules Technology Growth Capital, Inc., 400 Hamilton Avenue, Suite 310, Palo Alto, California 94301, Attention: Chief
Financial Officer, Re: Hercules Capital Funding Trust 2012-1, Telephone: (650) 289-3060, Facsimile No.: (650) 473-9194; with a copy to Hercules Capital Funding 2012-1 LLC, c/o Hercules Technology Growth Capital, Inc., 400 Hamilton Avenue,
Suite 310, Palo Alto, California 94301, Attention: Chief Legal Officer, Re: Hercules Capital Funding Trust 2012-1, Telephone: (650) 289-3060, Facsimile No.: (650) 473-9194 or if to a Certificateholder shall be given by first-class mail,
postage prepaid, at the address of such Certificateholder as shown in the Certificate Register. 
 (b) Delivery of any request,
demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents made as provided above will be deemed effective (except that notice to the Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee): (i) if in writing and delivered in Person or by overnight courier service, on the date it is delivered; (ii) if sent by facsimile transmission, on the date that transmission is received by the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine); and (iii) if sent by mail, on the date that mail is delivered or its delivery
is attempted; in each case, unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a
Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Business Day. 

  
 33 










	 	Section 11.05	Severability. 

 Any provision of this Trust Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 

 

	 	Section 11.06	Separate Counterparts. 

 This Trust Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute
but one and the same instrument. 
  

	 	Section 11.07	Successors and Assigns. 

 All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, each of the Trust Depositor, the Owner Trustee, the Trust Company, each Certificateholder and their
respective successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Certificateholder shall bind the successors and assigns of such Certificateholder. 

 

	 	Section 11.08	No Petition. 


(a) To the extent permitted by Applicable Law, the Trust Depositor will not, prior to the date which is one (1) year and one
(1) day (or, if longer, the applicable preference period then in effect) after payment in full of the Notes rated by any Rating Agency (or such longer preference period as shall then be in effect), institute against the Trust any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar law in connection with any obligations relating to the Trust Certificates, the Notes, this Trust Agreement or any of the other Transaction Documents. 

(b) To the extent permitted by Applicable Law, the Owner Trustee, by entering into this Trust Agreement, each Certificateholder, by
accepting a Trust Certificate, and the Trustee and each Noteholder, by accepting the benefits of this Trust Agreement, hereby covenant and agree that they will not, prior to the date which is one (1) year and one (1) day (or if longer, the
applicable preference period as shall then be in effect) after payment in full of the Notes rated by any Rating Agency (or such longer preference period as shall then be in effect), institute against the Trust, or join in any institution against the
Trust of, any bankruptcy proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Trust Certificates, the Notes, this Trust Agreement or any of the other Transaction Documents.

 (c) The provisions of this Section 11.08 shall survive the termination of this Trust Agreement for any reason
whatsoever. 

  
 34 










	 	Section 11.09	No Recourse. 


To the extent permitted by Applicable Law, each Certificateholder by accepting a Trust Certificate acknowledges that such
Certificateholder’s Trust Certificates represent beneficial interests in the Trust only and do not represent interests in or obligations of the Trust Depositor, the Servicer, the Seller, the Owner Trustee, the Trust Company, the Trustee,
Certificate Registrar or any Affiliate thereof and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Trust Agreement, the Trust Certificates or the Transaction Documents. Each
Certificateholder by accepting a Trust Certificate (i) acknowledges that such Trust Certificate represents a beneficial interest in the Trust only and does not represent an interest in or an obligation of the Trust Depositor, the Servicer, the
Seller, the Owner Trustee, the Trustee, or any Affiliate of the foregoing, and no recourse may be had against any such party or their assets, except as may be expressly set forth or contemplated in the Transaction Documents and (ii) enters into
the undertakings and agreements provided for such Certificateholder set forth in Section 13.09 of the Sale and Servicing Agreement. The right to distributions of the assets of the Trust or the proceeds thereof arising under this Agreement or
the Trust Certificates shall be payable solely in accordance with the priority set forth in Section 7.05 of the Sale and Servicing Agreement until the final discharge of the Indenture, and no Certificateholder shall have any recourse against
the Trust except in accordance therewith. The provisions of this Section 11.09 shall survive any termination of this Agreement. 
  

	 	Section 11.10	Headings. 


The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the
terms or provisions hereof. 
  

	 	Section 11.11	GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. 


THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST. 

ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS TRUST AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE UNITED STATES FOR THE DISTRICT OF
DELAWARE, AND BY EXECUTION AND DELIVERY OF THIS TRUST AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH SUCH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS TRUST AGREEMENT OR ANY DOCUMENT RELATED
HERETO. 

  
 35 









 TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER. 
  

	 	Section 11.12	Termination of Original Trust Agreement. 

 The parties hereto agree that the Original Trust Agreement is hereby superseded in its entirety by this Agreement. 
 [Remainder of Page Intentionally Left Blank.] 

  
 36 









 IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above written. 
  

			
	 HERCULES CAPITAL FUNDING 2012-1 LLC,
 as Trust Depositor

		
	By:	 	 /s/ Jessica Baron

	Name:	 	Jessica Baron
	Title:	 	Vice President and Treasurer



  
 Hercules
Capital Funding Trust 2012-1 
 A&R Trust Agreement 








 IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above written. 
  

			
	 WILMINGTON TRUST, NATIONAL
 ASSOCIATION, as Owner Trustee and as the
 Trust Company

		
	By:	 	 /s/ Jeanne M. Oller

	Name:	 	Jeanne M. Oller
	Title:	 	Assistant Vice President



  
 Hercules
Capital Funding Trust 2012-1 
 A&R Trust Agreement 








 IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above written. 
  

			
	U.S. BANK NATIONAL ASSOCIATION, as Trustee, hereby accepts the appointment as Certificate Registrar and paying agent pursuant to Sections 3.04 and
3.09 hereof and agrees to be bound by the obligations expressly set forth herein applicable to it in such capacities.
		
	By:	 	 /s/ Lynora J. Caulfield

	Name:	 	Lynora J. Caulfield
	Title:	 	Vice President



  
 Hercules
Capital Funding Trust 2012-1 
 A&R Trust Agreement 








 EXHIBIT A 
 FORM OF TRUST CERTIFICATE 
 THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAW AND ONLY TO (1) A “QUALIFIED INSTITUTIONAL BUYER,” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT IS A “QUALIFIED PURCHASER” AS
DEFINED IN SECTION 2(A)(51) OF THE INVESTMENT COMPANY ACT OF 1940 (EACH SUCH PERSON, A “QUALIFIED PURCHASER”), (2) AN INSTITUTION THAT QUALIFIES AS AN “ACCREDITED INVESTOR” MEETING THE REQUIREMENTS OF RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT IS A QUALIFIED PURCHASER PURSUANT TO AN EXEMPTION UNDER THE SECURITIES ACT AND, IN EITHER CASE, IS ACQUIRING SUCH TRUST
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS), PURSUANT TO AN EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
AND IN EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR OF
SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAW OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, (3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS,
OR (4) PURSUANT TO A VALID REGISTRATION STATEMENT. EACH INVESTOR IN THIS TRUST CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) IT IS NOT, AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS TRUST CERTIFICATE FOR,
ON BEHALF OF OR WITH ANY ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO PART IV, SUBTITLE B, TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS OF ANY SUCH PLANS (COLLECTIVELY, A “BENEFIT PLAN INVESTOR”) OR A PLAN OR OTHER ARRANGEMENT
SUBJECT TO ANY PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE 







 
SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”) OR (II) ITS ACQUISITION AND HOLDING OF SUCH TRUST CERTIFICATE OR ANY INTEREST THEREIN WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, OR A NON-EXEMPT VIOLATION OF SIMILAR LAW. SUCH REPRESENTATION SHALL BE DEEMED MADE ON EACH DAY FROM THE DATE ON WHICH THE
ACQUIRER ACQUIRES ITS INTEREST IN THE TRUST CERTIFICATE THROUGH AND INCLUDING THE DATE ON WHICH THE ACQUIRER DISPOSES OF ITS INTEREST IN THE TRUST CERTIFICATE. 
 THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY. 
 NO
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE TRUST CERTIFICATES (A “TRANSFER”) SHALL BE MADE UNLESS SIMULTANEOUSLY WITH THE TRANSFER THE PERCENTAGE INTEREST OF THE TRUST CERTIFICATES SO TRANSFERRED IS NO LESS THAN TEN
(10%) PERCENT. 
  

			
	NUMBER 1	  	PERCENTAGE INTEREST: 100%


  
 A-1-2









 HERCULES CAPITAL FUNDING TRUST 2012-1 

TRUST CERTIFICATE 
 Evidencing a beneficial ownership interest in the Trust, as defined below, the property of which includes primarily the Loans transferred to the Trust by Hercules Capital Funding 2012-1 LLC. 

(This Trust Certificate does not represent an interest in or obligation of Hercules Capital Funding 2012-1 LLC, Hercules Technology
Growth Capital, Inc. (the “Servicer”) or the Owner Trustee (as defined below) (as such or in its individual capacity) or any of their respective affiliates, except to the extent described below.) 

THIS CERTIFIES THAT HERCULES CAPITAL FUNDING 2012-1 LLC is the registered owner of the nonassessable, fully paid, beneficial ownership
interest in HERCULES CAPITAL FUNDING TRUST 2012-1 (the “Trust”) formed by Hercules Capital Funding 2012-1 LLC, in the Percentage Interest evidenced hereby. 
 The Trust was created pursuant to a Trust Agreement, dated as of December 10, 2012 (as amended and restated as of December 19, 2012 and as further amended, modified, restated, waived,
substituted or supplemented from time to time, the “Trust Agreement”), between Hercules Capital Funding 2012-1 LLC, as trust depositor (the “Trust Depositor”), and Wilmington Trust, National Association, as owner
trustee (the “Owner Trustee”), a summary of certain of the pertinent provisions of which is set forth below and a Certificate of Trust filed with the Secretary of State of the State of Delaware on December 10, 2012. To the
extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement. 
 This Trust Certificate is one of a duly authorized issue of Hercules Capital Funding Trust 2012-1 Certificates (herein called the “Trust Certificates”). This Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Trust Certificate by virtue of its acceptance hereof assents and by which such holder is bound. 

Under the Trust Agreement, there will be distributed on the 15th day of each January, April, July and October or, if such 15th day is not
a Business Day, the next Business Day (each, a “Payment Date”), commencing on January 15, 2013, to the Person in whose name this Trust Certificate is registered at the close of business on the last Business Day of the month
immediately preceding the Payment Date (the “Record Date”), such Certificateholder’s Percentage Interest in the amount to be distributed to Certificateholders on such Payment Date pursuant to the terms of the Sale and Servicing
Agreement and the Indenture. 
 The Holder of this Trust Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Trust Certificate are subordinated to the rights of the Noteholders as described in the Sale and Servicing Agreement and the Indenture. 
 It is the intent of the Trust Depositor, the Servicer and the Certificateholders that, (i) in the event that the Trust Certificates are owned by a single Holder, for federal income tax


  
 A-1-3









 
purposes, the Trust will be treated as disregarded as an entity separate from such Holder, and such Holder, by acceptance of the Trust Certificates, agrees to take no action inconsistent with
such treatment and (ii) in the event that the Trust Certificates are owned by more than one Holder, for federal income tax purposes, the Trust will be treated as a partnership, other than a publicly traded partnership, the partners of which are
the Certificateholders, and the Certificateholders, by acceptance of a Trust Certificate, respectively, agree to treat the Trust Certificates as equity and to take no action inconsistent with such treatment. 

To the fullest extent permitted by Applicable Law, each Certificateholder, by its acceptance of a Trust Certificate, covenants and agrees
that such Certificateholder, will not prior to the date which is one (1) year and one (1) day (or, if longer, the applicable preference period then in effect) after the payment in full of the Notes rated by any Rating Agency, institute
against the Trust, or join in any institution against the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the Notes, the Trust Agreement or any of the other Transaction Documents. 
 Distributions on this Trust Certificate will be made as provided in the Trust Agreement by the Trustee or any other party acting as paying agent by wire transfer or check mailed to the Certificateholder
of record in the Certificate Register without the presentation or surrender of this Trust Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on
this Trust Certificate will be made after due notice by the Trustee or any other party acting as paying agent of the pendency of such distribution and only upon presentation and surrender of this Trust Certificate at the office or agency maintained
for that purpose by the Trustee or any other party acting as paying agent. 
 Reference is hereby made to the further provisions
of this Trust Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. 
 Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Certificate Registrar, by manual signature, this Trust Certificate shall not entitle the Holder
hereof to any benefit under the Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose. 
 THIS
TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS. 

  
 A-1-4









 IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Trust Certificate to be duly executed. 
  

			
	HERCULES CAPITAL FUNDING TRUST 2012-1
		
	By:	 	WILMINGTON TRUST, NATIONAL ASSOCIATION, solely as Owner Trustee and not in its individual capacity
		
	By:	 	  

		 	Authorized Signatory


 CERTIFICATE OF AUTHENTICATION 

This is one of the Trust Certificates of Hercules Capital Funding Trust 2012-1 referred to in the within-mentioned Trust Agreement.

  

			
	U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar
		
	By:	 	  

		 	Authorized Signatory



  
 A-1-5









 [REVERSE OF TRUST CERTIFICATE] 

The Trust Certificates do not represent an obligation of, or an interest in, the Trust Depositor, the Servicer, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or their assets, except as expressly set forth or contemplated herein or in the Trust Agreement, the Indenture or the Transaction Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries with respect to the Loans (and certain other amounts), all as more specifically set forth herein and
in the Transaction Documents. A copy of each of the Transaction Documents may be examined by any Certificateholder upon written request during normal business hours at the principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor. 
 The Trust Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust Depositor and the rights of the Certificateholders under the Trust Agreement at any time, by the Trust Depositor, the Trust Company and the Owner Trustee with the consent of the
holders of the Trust Certificates evidencing not less than a majority of the outstanding Percentage Interest and of the holders of the Majority Noteholders. Any such consent by the holder of this Trust Certificate shall be conclusive and binding on
such holder and on all future holders of this Trust Certificate and of any Trust Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this Trust Certificate. The
Trust Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the holders of any of the Trust Certificates. 
 As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Trust Certificate is registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the Certificate Registrar, accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder’s attorney duly authorized in writing, and thereupon one or more new Trust Certificates of authorized denominations evidencing the same aggregate interest in the Trust will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Trust Agreement is U.S. Bank National Association. 
 The Trust Certificates
are issuable only as registered Trust Certificates without coupons in minimum Percentage Interests of ten (10%) percent and integral multiples of one (1%) percent in excess thereof; provided that one Trust Certificate may be issued
in a different denomination. As provided in the Trust Agreement and subject to certain limitations therein set forth, Trust Certificates are exchangeable for new Trust Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith. 

  
 A-1-6









 The Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or the
Certificate Registrar may treat the Person in whose name this Trust Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the
contrary. 
 This Trust Certificate may not be acquired directly or indirectly by, or held by or with plan assets of any
employee benefit plans, retirement arrangements, individual retirement accounts or Keogh plans subject to either Title I of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended. By accepting and holding this Trust Certificate, the Holder hereof shall be deemed to have represented and warranted that it is not any of the foregoing entities. 

This Trust Certificate may not be transferred to any person who is not a U.S. Person, as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code, as amended. 
 Each purchaser of the Trust Certificates shall be required, prior to purchasing a
Trust Certificate, to execute the Purchaser’s Representation and Warranty Letter in the form attached to the Trust Agreement as Exhibit C. 
 The obligations and responsibilities created by the Trust Agreement and the Trust created thereby shall terminate upon (i) the payment to Certificateholders of all amounts required to be paid to them
pursuant to the Trust Agreement and the Sale and Servicing Agreement and the disposition of all property held as part of the Trust and (ii) the written consent of the Certificateholders. The Servicer on behalf of the Trustee has the option to
cause the sale of the corpus of the Trust at a price and pursuant to procedures specified in the Indenture and the Sale and Servicing Agreement, and such sale of the receivables and other property of the Trust will effect early retirement of the
Trust Certificates. 

  
 A-1-7









 ASSIGNMENT 
 FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto 
 PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE 
  

	
	  

	
	(Please print or type name and address, including postal zip code, of assignee)
	
	  

	
	the within Trust Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
	
	  

	
	to transfer said Trust Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.

 Dated: 
  

			
	  
	 	*
	Signature Guaranteed:	 	
		
	  
	 	*


  

	*	NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Trust Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 


  
 A-1-8









 EXHIBIT B 
 CERTIFICATE OF TRUST OF 
 HERCULES CAPITAL FUNDING TRUST 2012-1

 This Certificate of Trust of HERCULES CAPITAL FUNDING TRUST 2012-1 (the “Trust”), is being duly
executed and filed by the undersigned, as owner trustee, to form a statutory trust under the Statutory Trust Statute (12 Del. Code, § 3801 et seq.) (the “Act”). 

1. Name. The name of the statutory trust formed hereby is HERCULES CAPITAL FUNDING TRUST 2012-1. 

2. Delaware Trustee. The name and business address of a trustee of the Trust having its principal place of business in the State
of Delaware is Wilmington Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration. 
 3. Effective Date. This Certificate of Trust shall be effective upon its filing with the Secretary of State of the State of Delaware. 

IN WITNESS WHEREOF, the undersigned, being the only owner trustee of the Trust, has duly executed this Certificate of Trust in
accordance with Section 3811(a)(1) of the Act. 
  

			
	WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, but solely as owner trustee of the Trust
		
	By:	 	  

	Name:	 	  

	Title:	 	  










 EXHIBIT C 
 Form of Purchaser’s Representation and Warranty Letter 
 Hercules Capital Funding
Trust 2012-1 
 c/o Wilmington Trust, National Association, as Owner Trustee 
 1100 North Market Street 
 Wilmington, Delaware 19890 

Attention: Corporate Trust Administration 
 U.S.
Bank National Association, as Certificate Registrar 
 60 Livingston Avenue, EP-MN WS3D 
 St. Paul, Minnesota 55107 
 Attention: Structured Finance – Hercules 2012-1 

Re: Hercules Capital Funding Trust 2012-1 (the “Trust”)  
 Ladies and Gentlemen: 
 In connection with our proposed acquisition of Trust
Certificates (the “Trust Certificates”) issued under the Trust Agreement, dated as of December 10, 2012 (as amended and restated as of December 19, 2012 and as further amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement), between Hercules Capital Funding 2012-1 LLC, as
Trust Depositor (the “Trust Depositor”), and Wilmington Trust, National Association, as Owner Trustee, the undersigned (the “Purchaser”) represents, warrants and agrees that: 

1. It is (1) the Trust Depositor or an Affiliate thereof, (2) a Qualified Institutional Buyer (a “QIB”) for
purposes of Rule 144A under the Securities Act and is acquiring the Trust Certificates for its own institutional account or for the account of a QIB or (3) an Institutional “Accredited Investor” (within the meaning of Rule 501
(a)(1)-(3) or (7) under the Securities Act) purchasing for investment and not for distribution in violation of the act. 
 2. It is not an employee benefit plan, retirement arrangement, individual retirement account or Keogh plan subject to either Title I of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended and is not acquiring Trust Certificates with plan assets of any of the foregoing. 
 3. It is a U.S. Person as defined in Section 7701(a)(30) of the Code. 
 4. It
has such knowledge and experience in evaluating business and financial matters so that it is capable of evaluating the merits and risks of an investment in the Trust Certificates. It understands the full nature and risks of an investment in the
Trust Certificates and based upon its present and projected net income and net worth, it believes that it can bear the economic risk of an immediate or future loss of its entire investment in the Trust Certificates. 

  
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 5. It understands that the Trust Certificates will be offered in a transaction not involving
any public offering within the meaning of the Securities Act, and that, if in the future it decides to resell, pledge or otherwise transfer any Trust Certificates, such Trust Certificates may be resold, pledged or transferred only (a) to a
person who the seller reasonably believes is a QIB/QP that purchases for its own account or for the account of another QIB/QP or (b) pursuant to an effective registration statement under the Securities Act. 

6. It understands that each Trust Certificate will bear legends substantially to the following effect: 

THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAW AND ONLY (1) A
“QUALIFIED INSTITUTIONAL BUYER,” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT IS A “QUALIFIED PURCHASER” AS DEFINED IN SECTION 2(A)(51) OF THE INVESTMENT COMPANY ACT OF 1940 (EACH SUCH PERSON, A “QUALIFIED
PURCHASER”) , (2) AN INSTITUTION THAT QUALIFIES AS AN “ACCREDITED INVESTOR” MEETING THE REQUIREMENTS OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“INSTITUTIONAL ACCREDITED
INVESTOR”) THAT IS A QUALIFIED PURCHASER PURSUANT TO AN EXEMPTION UNDER THE SECURITIES ACT AND, IN EITHER CASE, IS ACQUIRING SUCH TRUST CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS), PURSUANT TO AN EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND IN EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAW OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) PURSUANT TO A VALID REGISTRATION STATEMENT. EACH INVESTOR IN THIS TRUST


  
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CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) IT IS NOT, AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS TRUST CERTIFICATE FOR, ON BEHALF OF OR WITH ANY
ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO PART IV, SUBTITLE B, TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS OF ANY SUCH PLANS (COLLECTIVELY, A “BENEFIT PLAN INVESTOR”) OR A PLAN OR OTHER ARRANGEMENT SUBJECT TO ANY PROVISIONS UNDER ANY FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”) OR (II) ITS ACQUISITION AND HOLDING OF SUCH TRUST CERTIFICATE OR ANY INTEREST THEREIN WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, OR A NON-EXEMPT VIOLATION OF SIMILAR LAW. SUCH REPRESENTATION SHALL BE DEEMED MADE ON EACH DAY FROM THE DATE ON WHICH THE
ACQUIRER ACQUIRES ITS INTEREST IN THE TRUST CERTIFICATE THROUGH AND INCLUDING THE DATE ON WHICH THE ACQUIRER DISPOSES OF ITS INTEREST IN THE TRUST CERTIFICATE. 
 THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY. 
 NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE TRUST CERTIFICATES (A “TRANSFER”) SHALL BE MADE UNLESS SIMULTANEOUSLY WITH THE TRANSFER THE PERCENTAGE INTEREST OF THE TRUST
CERTIFICATES SO TRANSFERRED IS NO LESS THAN TEN (10%) PERCENT. 
 7. It is acquiring the Trust Certificates for its own
account and not with a view to the public offering thereof in violation of the Securities Act (subject, nevertheless, to the understanding that disposition of its property shall at all times be and remain within its control). 

8. It has been furnished with all information regarding the Trust and Trust Certificates which it has requested from the Trust and the
Trust Depositor. 
 9. Neither it nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed
of any Trust Certificate, any interest in any Trust Certificate or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Trust Certificate, any interest in any Trust Certificate or any
other similar security from, or otherwise approached or negotiated with respect to any Trust Certificate, any interest in any Trust Certificate or any other similar security with, any person in any manner or made any general solicitation by means of
general advertising or in any other manner, which would 

  
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constitute a distribution of the Trust Certificates under the Securities Act or which would require registration pursuant to the Securities Act nor will it act, nor has it authorized or will
authorize any person to act, in such manner with respect to any Trust Certificate. 
 10. It is a Qualified Purchaser
(“QP”) for purposes of Section 3(c)(7) of the 1940 Act. 
 11. It either: 

(1) is not and will not become for U.S. federal income tax purposes a partnership, subchapter S corporation, grantor trust or other
pass-through entity or 
 (2) if it is or will become such an entity for U.S. federal income tax purposes, then: 

a. none of the direct or indirect beneficial owners of any interest in it have or ever will have more than 50% of the value of its
interest in it attributable to the interest of it in any Trust Certificate or other interest (direct or indirect) in the Trust; and 
 b. it is not and will not be a principal purpose of the arrangement involving the investment of it in any Trust Certificate to permit any partnership to satisfy the 100 partner limitation of Treas. Reg.
§ 1.7704-1(h)(1)(ii); 
 12. It is not acquiring and will not sell, transfer, assign, participate, pledge or otherwise
dispose of any Trust Certificate (or interest therein) or cause any Trust Certificate (or interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b) of the Code, including,
without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations. 

  
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	Dated:	 	  


  

	
	Very truly yours,
	
	HERCULES CAPITAL FUNDING 2012-1 LLC
	
	  

	
	Name: Manuel A. Henriquez
	
	Title: Chief Executive Officer and President
	
	NOTE: To be executed by an executive officer



  
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