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Execution Version  4143-7825-5928.4  OPORTUN CCW TRUST  FIRST AMENDMENT TO INDENTURE  This FIRST AMENDMENT TO INDENTURE, dated as of June 3, 2022 (this  “Amendment”), is entered into among OPORTUN CCW TRUST, a special purpose Delaware  statutory trust, as issuer (the “Issuer”), and WILMINGTON TRUST, NATIONAL  ASSOCIATION, a national banking association with trust powers, as indenture trustee (in such  capacity, the “Indenture Trustee”), as securities intermediary (in such capacity, the “Securities  Intermediary”) and as depositary bank (in such capacity, the “Depositary Bank”).  RECITALS  WHEREAS, the Issuer, the Indenture Trustee, the Securities Intermediary and the  Depositary Bank have previously entered into that certain Indenture, dated as of December 20,  2021 (as amended, modified or supplemented prior to the date hereof, the “Indenture”);   WHEREAS, in accordance with Section 13.2 of the Base Indenture, the Issuer  desires to amend the Indenture as provided herein; and  WHEREAS, as evidenced by their signature hereto, the Required Noteholders  have consented to the amendments provided for herein;   NOW, THEREFORE, in consideration of the mutual agreements herein  contained, and other good and valuable consideration, the receipt and adequacy of which are  hereby acknowledged, each party hereto agrees as follows:  ARTICLE I  DEFINITIONS  SECTION 1.01. Defined Terms Not Defined Herein. All capitalized terms used  herein that are not defined herein shall have the meanings assigned to them in, or by reference in,  the Indenture.  ARTICLE II  AMENDMENTS TO THE INDENTURE  SECTION 2.01. Amendments.  The Indenture is hereby amended to incorporate the  changes reflected on the marked pages of the Indenture attached hereto as Schedule I, with a  conformed copy of the amended Indenture attached hereto as Schedule II.   2  4143-7825-5928.4  ARTICLE III  REPRESENTATIONS AND WARRANTIES  SECTION 3.01. Representations and Warranties. The Issuer hereby represents and  warrants to the Indenture Trustee, the Securities Intermediary, the Depositary Bank and each of  the other Secured Parties that:  (a) Representations and Warranties. Both before and immediately after giving effect  to this Amendment, the representations and warranties made by the Issuer in the Indenture and  each of the other Transaction Documents to which it is a party are true and correct as of the date  hereof (unless stated to relate solely to an earlier date, in which case such representations or  warranties were true and correct as of such earlier date).  (b) Enforceability. This Amendment and the Indenture, as amended hereby, constitute  the legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance  with its respective terms, except as such enforceability may be limited by bankruptcy,  insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by  general principles of equity.  (c) No Defaults. No Rapid Amortization Event, Event of Default, Servicer Default or  Default has occurred and is continuing.  ARTICLE IV  MISCELLANEOUS  SECTION 4.01. Ratification of Indenture. As amended by this Amendment, the  Indenture is in all respects ratified and confirmed and the Indenture, as amended by this  Amendment, shall be read, taken and construed as one and the same instrument.  SECTION 4.02. Counterparts. This Amendment may be executed in any number of  counterparts, and by different parties in separate counterparts, each of which so executed shall be  deemed to be an original, but all of such counterparts shall together constitute but one and the  same instrument.  Each of the parties hereto agrees that the transaction consisting of this  Amendment may be conducted by electronic means. Each party agrees, and acknowledges that it  is such party’s intent, that if such party signs this Amendment using an electronic signature, it is  signing, adopting, and accepting this Amendment and that signing this Amendment using an  electronic signature is the legal equivalent of having placed its handwritten signature on this  Amendment on paper. Each party acknowledges that it is being provided with an electronic or  paper copy of this Amendment in a usable format.  SECTION 4.03. Recitals. The recitals contained in this Amendment shall be taken  as the statements of the Issuer, and none of the Indenture Trustee, the Securities Intermediary or  the Depositary Bank assumes any responsibility for their correctness. None of the Indenture  Trustee, the Securities Intermediary or the Depositary Bank makes any representations as to the  validity or sufficiency of this Amendment.  3  4143-7825-5928.4  SECTION 4.04. Rights of the Indenture Trustee, the Securities Intermediary and the  Depositary Bank. The rights, privileges and immunities afforded to the Indenture Trustee, the  Securities Intermediary and the Depositary Bank under the Indenture shall apply hereunder as if  fully set forth herein.  SECTION 4.05. GOVERNING LAW; JURISDICTION. THIS AMENDMENT  SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW  YORK, 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. EACH OF THE PARTIES  HERETO AND EACH SECURED PARTY HEREBY AGREES TO THE NON-EXCLUSIVE  JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN  DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO  REVIEW THE JUDGMENTS THEREOF.  EACH OF THE PARTIES HERETO AND EACH  SECURED PARTY HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON  CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED  HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE  GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE  BY SUCH COURT.  SECTION 4.06. Effectiveness. This Amendment shall become effective as of the  date hereof upon:  (a) receipt by the Indenture Trustee of an Administrator Order directing it to execute  and deliver this Amendment;  (b) receipt by the Indenture Trustee of an Officer’s Certificate of the Issuer stating  that the execution of this Amendment is authorized and permitted by the Indenture and all  conditions precedent to the execution of this Amendment have been satisfied;  (c) receipt by the Indenture Trustee of an Opinion of Counsel stating that the  execution of this Amendment is authorized and permitted under the Indenture and all conditions  precedent to the execution of this Amendment have been satisfied;  (d) receipt by the Indenture Trustee of evidence of the consent of the Required  Noteholders to this Amendment;  (e) receipt by the Indenture Trustee of counterparts of this Amendment, duly  executed by each of the parties hereto; and  (f) receipt by the Indenture Trustee of such other instruments, documents,  agreements and opinions reasonably requested by the Indenture Trustee prior to the date hereof.  SECTION 4.07. Limitation of Liability.  It is expressly understood and agreed by  the parties hereto that (i) this Amendment is executed and delivered by Wilmington Savings  Fund Society, FSB , not individually or personally but solely as Owner Trustee of the Issuer, in  the exercise of the powers and authority conferred and vested in it, (ii) each of the  representations, undertakings and agreements herein made on the part of the Issuer is made and  4  4143-7825-5928.4  intended not as personal representations, undertakings and agreements by the Owner Trustee but  made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall  be construed as creating any liability on the Owner Trustee, individually or personally, to  perform any covenants, either expressed or implied, contained herein, all personal liability, if  any, being expressly waived by the parties hereto and by any person claiming by, through or  under the parties hereto, (iv) the Owner Trustee has made no investigation as to the accuracy or  completeness of any representations and warranties made by the Issuer in this Amendment and  (v) under no circumstances shall the Owner Trustee be personally liable for the payment of any  indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation,  representation, warranty or covenant made or undertaken by the Issuer under this Amendment or  any other related document.  (Signature page follows) 





 






  First Amendment to Indenture   4143-7825-5928.5    IN WITNESS WHEREOF, the Issuer, the Indenture Trustee, the Securities  Intermediary and the Depositary Bank have caused this Amendment to be duly executed by their  respective officers as of the day and year first above written.  OPORTUN CCW TRUST,  as Issuer    By:  Wilmington Savings Fund Society, FSB , not  in its individual capacity, but solely as Owner  Trustee of the Issuer      By: /s/ Mary Emily Pagano ______________   Name:  Mary Emily Pagano   Title:    Assistant Vice President    First Amendment to Indenture   4143-7825-5928.5    WILMINGTON TRUST, NATIONAL  ASSOCIATION,  not in its individual capacity but solely as Indenture  Trustee      By: /s/ Drew H. Davis __________________   Name: Drew H. Davis   Title: Vice President      WILMINGTON TRUST, NATIONAL  ASSOCIATION,  not in its individual capacity but solely as Securities  Intermediary      By: /s/ Drew H. Davis __________________   Name: Drew H. Davis   Title: Vice President      WILMINGTON TRUST, NATIONAL  ASSOCIATION,  not in its individual capacity but solely as  Depositary Bank      By: /s/ Drew H. Davis __________________   Name: Drew H. Davis   Title: Vice President           First Amendment to Indenture   4143-7825-5928.5    Consented to by the Required Noteholders:    WEBBANK,  as Holder of 100% of the outstanding Notes      By: /s/ Jason Lloyd ____________________   Name: Jason Lloyd   Title: President & CEO    4143-7825-5928.5  SCHEDULE I  Marked Amendments to Indenture (See attached)  





 






CONFORMED COPY As amended by the First Amendment to Indenture, dated as of June 3, 2022 4131-7075-5128 OPORTUN CCW TRUST, as Issuer and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Indenture Trustee, as Securities Intermediary and as Depositary Bank INDENTURE Dated as of December 20, 2021 Variable Funding Asset Backed Notes 3 4131-7075-5128 Section 1.1.  Definitions.  Certain capitalized terms used herein (including the preamble and the recitals hereto) shall have the following meanings: “Account” means each open-end revolving credit card account, that is identified as an Initial Account or an Additional Account. The term “Account” also includes each account into which an Account is transferred (a “Transferred Account”) so long as such Transferred Account (i) has been transferred in accordance with the Credit and Collection Policy and (ii) can be traced or identified, by reference to or by way of any Account Schedule delivered to Depositor or the Depositor Receivables Trustee for the benefit of Depositor and Issuer, as an account into which an Account has been transferred. Any Account that becomes a Defaulted Account shall cease to be an Account for all purposes other than the calculation of Recoveries, and no existing balance or future charges on such account shall be deemed to be Transferred Receivables notwithstanding any subsequent reaffirmation of such account by the Obligor and any resulting action by the related Account Owner. The term Account includes an Additional Account only from and after its Addition Date and excludes any Removed Account after its Removal Date. “Account Agreement” means with respect to an Account, the agreement by and between the Account Owner and the Obligor thereof governing the terms and conditions of such Account, as such agreement may be amended, restated, supplemented or otherwise modified from time to time. “Account Owner” means, with respect to any Account, (i) the Initial Originator, or any other entity that, pursuant to a Program Agreement related to such Account, is the issuer of the credit cards related to, or the owner of, such Account, and (ii) if such Account is transferred to a successor Account Owner, such successor Account Owner. “Account Schedule” has the meaning set forth in the Transfer Agreement. “Addition Cut-Off Date” has the meaning set forth in the Transfer Agreement. “Addition Date” has the meaning set forth in the Transfer Agreement. “Additional Accounts” means any Accounts designated pursuant to Section 2.6 of the Transfer Agreement. “Additional Interest” has the meaning specified in Section 5.12(d). “Adjusted Leverage Ratio” means, on any date of determination, the ratio of (i) Adjusted Liabilities to (ii) Tangible Net Worth. “Adjusted Leverage Ratio Covenant” means that the Parent will have a maximum Adjusted Leverage Ratio of 3.5:1. “Adjusted Liabilities” means, on any date of determination, the excess of total Liabilities over the amount of any asset-backed securities that would appear as liabilities on the balance sheet of the Parent and its Subsidiaries determined on a consolidated basis in accordance with GAAP. 18 4131-7075-5128 check fees and all other similar fees and charges billed or accrued and unpaid on an Account designated to the Trust Portfolio. “Financial Covenants” means each of the Leverage Ratio Covenant, the Adjusted Leverage Ratio Covenant, the Liquidity Covenant and the Tangible Net Worth Covenant. “Fiscal Year” means any period of twelve consecutive calendar months ending on December 31. “Fitch” means Fitch, Inc. “Floor” means the benchmark rate floor, if any, provided in this Indenture initially (as of the execution of this Indenture, the modification, amendment or renewal of this Indenture or otherwise) with respect to One-Month LIBOR. “GAAP” means those principles of accounting set forth in pronouncements of the Financial Accounting Standards Board, the American Institute of Certified Public Accountants or which have other substantial authoritative support and are applicable in the circumstances as of the date of a report , as such principles are from time to time supplemented and amended. “Governmental Authority” means any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic. “Grant” means the Issuer’s grant of a Lien on the Trust Estate as set forth in the Granting Clause of this Indenture. “Hardship Program ” means any program of an Account Owner, established pursuant to the Credit and Collection Policies, to provide payment relief to Obligors who have suffered a temporary life event and who demonstrate a willingness and ability to make payments on their Account. “Holder” means the Person in whose name a Note is registered in the Note Register. “In-Store Payments” means payments received from or on behalf of Obligors at a retail location operated by the Seller or its partners. “Increase” has the meaning specified in Section 3.1(b). “Indebtedness” means, with respect to any Person, such Person’s (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property other than accounts payable arising in the ordinary course of such Person’s business on terms customary in the trade, (iii) obligations, whether or not assumed, secured by Liens on or payable out of the proceeds or production from, property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized 20 4131-7075-5128 Law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and in the case of any Person, such Proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy Laws or other similar Laws now or hereafter in effect; or (b) such Person shall (i) consent to the institution of any Proceeding or petition described in clause (a) of this definition, or (ii) commence a voluntary Proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar Law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or other similar official for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors shall vote to implement any of the foregoing. “Interest Period” means, with respect to any Payment Date, the prior Monthly Period. “Investment Company Act” means the Investment Company Act of 1940, as amended. “Investment Earnings” means all interest and earnings (net of losses and investment expenses) accrued on funds on deposit in the Trust Accounts. “Issuer” has the meaning specified in the preamble of this Indenture. “Issuer Distributions” has the meaning specified in Section 5.4(c). “Issuer Order” and “Issuer Request” means a written order or request signed in the name of the Issuer by any one of its Responsible Officers and delivered to the Indenture Trustee. “Law” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority. “Legacy Additional Interest” has the meaning specified in the Fee Letter, as notified by the Issuer to the Servicer in writing. “Legacy Expiration Date” means February 5, 2023. “Legal Final Payment Date” means the Payment Date immediately following the 365th day after the commencement of the Amortization Period. “Leverage Ratio” means, on any date of determination, the ratio of (i) Liabilities to (ii) Tangible Net Worth. “Leverage Ratio Covenant” means that the Parent will have a maximum Leverage Ratio equal to the lesser of (i) 7.511.5:1 and (ii) the maximum leverage ratio or similar covenant for the Parent set forth in any Oportun Comparable Facility. 





 






61 4131-7075-5128 (iii) the amount of Collections received during the related Monthly Period in respect of any annual fees, late fees, returned check fees and any other fees payable by the Obligors on the Receivables; (iv) the amount of Available Funds and Distributable Funds on deposit in the Collection Account and, if applicable, the Reserve Account on such Payment Date; (v) the amount of Trustee Fees and Expenses, Class A Monthly Interest, Class A Deficiency Amounts, Class A Additional Interest and the Unused Fee, respectively, for such Payment Date; (vi) the Reserve Account Requirement and the balance in the Reserve Account on such Payment Date; (vii) the amount of the Servicing Fee for such Payment Date; (viii) the total amount to be distributed to the Class A Noteholders on such Payment Date; (ix) the outstanding principal balance of the Class A Notes as of the end of the day on the Payment Date; (x) the amount of any Increases and Decreases in the Notes during the related Monthly Period; (xi) One-Month LIBOR for each day during the related Interest Period; (xii) the date on which the Amortization Period commenced, if applicable; (xiii) the aggregate Outstanding Receivables Balance of Receivables which were 1-29 days, 30-59 days, 60-89 days, and 90-119 days delinquent, respectively, as of the end of the preceding Monthly Period; (xiv) the (a) Liabilities, (b) Adjusted Liabilities, (c) Tangible Net Worth, (d) Leverage Ratio and (ce) Adjusted Leverage Ratio, in each case, of the Parent as of the end of the second preceding Monthly Period (including, in each case, each of the components thereof); (xv) the aggregate amount of cash and Cash Equivalents of the Seller as of the end of the second preceding Monthly Period; (xvi) whether any of the Financial Covenants as of the end of the second preceding Monthly Period have been breached; (xvii) the aggregate Outstanding Receivables Balance of all Delinquent Receivables as of the end of the preceding Monthly Period; 4143-7825-5928.5  SCHEDULE II  Conformed Copy of Indenture (See attached)  CONFORMED COPY   As amended by the   First Amendment to Indenture,   dated as of June 3, 2022  4131-7075-5128  OPORTUN CCW TRUST,  as Issuer  and  WILMINGTON TRUST, NATIONAL ASSOCIATION,  as Indenture Trustee, as Securities Intermediary and as Depositary Bank  INDENTURE  Dated as of December 20, 2021  Variable Funding Asset Backed Notes  TABLE OF CONTENTS  Page -i-  4131-7075-5128  ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE ............................... 2 Section 1.1. Definitions...................................................................................................... 3 Section 1.2. Incorporation by Reference of Trust Indenture Act ..................................... 33 Section 1.3. [Reserved] .................................................................................................... 33 Section 1.4. Accounting and Financial Determinations; No Duplication ........................ 33 Section 1.5. Rules of Construction .................................................................................. 33 Section 1.6. Other Definitional Provisions. ..................................................................... 34 ARTICLE 2. THE NOTES .......................................................................................................... 34 Section 2.1. Designation and Terms of Notes.................................................................. 34 Section 2.2. [Reserved] .................................................................................................... 35 Section 2.3. [Reserved]. ................................................................................................... 35 Section 2.4. Execution and Authentication. ..................................................................... 35 Section 2.5. Authenticating Agent. .................................................................................. 35 Section 2.6. Registration of Transfer and Exchange of Notes. ........................................ 36 Section 2.7. Appointment of Paying Agent ..................................................................... 38 Section 2.8. Paying Agent to Hold Money in Trust. ........................................................ 39 Section 2.9. Private Placement ......................................................................................... 40 Section 2.10. Mutilated, Destroyed, Lost or Stolen Notes............................................... 41 Section 2.11. [Reserved]. ................................................................................................. 42 Section 2.12. Persons Deemed Owners ........................................................................... 42 Section 2.13. Cancellation ............................................................................................... 43 Section 2.14. Release of Trust Estate ............................................................................... 43 Section 2.15. Payment of Principal, Interest and Other Amounts. .................................. 43 Section 2.16. [Reserved]. ................................................................................................. 44 Section 2.18. Definitive Notes. ........................................................................................ 44 Section 2.20. Tax Treatment ............................................................................................ 45 Section 2.21. Duties of the Indenture Trustee and the Transfer Agent and  Registrar ............................................................................................. 45 ARTICLE 3. ISSUANCE OF NOTES; CERTAIN FEES AND EXPENSES ............................ 45 Section 3.1. Initial Issuance; Procedure for Increases. .................................................... 45 Section 3.2. Procedure for Decreases.. ............................................................................ 47 Section 3.3. Certain Fees and Expenses........................................................................... 47 ARTICLE 4. NOTEHOLDER LISTS AND REPORTS ............................................................. 47 Section 4.1. Issuer To Furnish To Indenture Trustee Names and Addresses of  Noteholders and Certificateholders.................................................... 47 Section 4.2. Preservation of Information; Communications to Noteholders and  Certificateholders. .............................................................................. 48 Section 4.3. Reports by Issuer.......................................................................................... 48 Section 4.4. Reports by Indenture Trustee ....................................................................... 49 Section 4.5. Reports and Records for the Indenture Trustee and Instructions. ................ 49 





 






TABLE OF CONTENTS (continued)  Page -ii-  4131-7075-5128  ARTICLE 5. ALLOCATION AND APPLICATION OF COLLECTIONS .............................. 49 Section 5.1. Rights of Noteholders .................................................................................. 49 Section 5.2. Collection of Money .................................................................................... 50 Section 5.3. Establishment of Accounts. ......................................................................... 50 Section 5.4. Collections and Allocations. ........................................................................ 52 Section 5.5. Determination of Monthly Interest .............................................................. 54 Section 5.6. Determination of Monthly Principal ............................................................ 54 Section 5.7. General Provisions Regarding Accounts ..................................................... 54 Section 5.8. Removed Receivables .................................................................................. 54 Section 5.9. [Reserved]. ................................................................................................... 54 Section 5.10. [Reserved]. ................................................................................................. 54 Section 5.11. [Reserved]. ................................................................................................. 54 Section 5.12. Determination of Monthly Interest; LIBOR Notification. ......................... 54 Section 5.13. [Reserved]. ................................................................................................. 56 Section 5.14. [Reserved]. ................................................................................................. 56 Section 5.15. Monthly Payments. .................................................................................... 56 Section 5.16. Servicer’s Failure to Make a Deposit or Payment ..................................... 57 Section 5.17. Determination of One-Month LIBOR. ...................................................... 57 ARTICLE 6. DISTRIBUTIONS AND REPORTS ..................................................................... 59 Section 6.1. Distributions. ................................................................................................ 59 Section 6.2. Monthly Statement. ...................................................................................... 60 Section 6.3. Issuer Payments. .......................................................................................... 62 ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF THE ISSUER ........................ 62 Section 7.1. Representations and Warranties of the Issuer .............................................. 62 Section 7.2. Reaffirmation of Representations and Warranties by the Issuer. ................ 66 ARTICLE 8. COVENANTS ....................................................................................................... 66 Section 8.1. Money for Payments To Be Held in Trust ................................................... 66 Section 8.2. Affirmative Covenants of Issuer .................................................................. 66 Section 8.3. Negative Covenants ..................................................................................... 71 Section 8.4. Further Instruments and Acts ....................................................................... 74 Section 8.5. Appointment of Successor Servicer ............................................................. 74 Section 8.6. Perfection Representations........................................................................... 74 ARTICLE 9. RAPID AMORTIZATION EVENTS AND REMEDIES ..................................... 74 Section 9.1. Rapid Amortization Events .......................................................................... 74 ARTICLE 10. REMEDIES .......................................................................................................... 76 Section 10.1. Events of Default ....................................................................................... 76 Section 10.2. Rights of the Indenture Trustee Upon Events of Default. ......................... 77 Section 10.3. Collection of Indebtedness and Suits for Enforcement by Indenture  Trustee................................................................................................ 78 Section 10.4. Remedies .................................................................................................... 80 TABLE OF CONTENTS (continued)  Page -iii-  4131-7075-5128  Section 10.5. [Reserved]. ................................................................................................. 81 Section 10.6. Waiver of Past Events ................................................................................ 81 Section 10.7. Limitation on Suits ..................................................................................... 81 Section 10.8. Unconditional Rights of Holders to Receive Payment; Withholding  Taxes. ................................................................................................. 82 Section 10.9. Restoration of Rights and Remedies .......................................................... 83 Section 10.10. [Reserved] ................................................................................................ 83 Section 10.11. Priorities ................................................................................................... 83 Section 10.12. Undertaking for Costs .............................................................................. 83 Section 10.13. Rights and Remedies Cumulative ............................................................ 84 Section 10.14. Delay or Omission Not Waiver................................................................ 84 Section 10.15. Control by Noteholders ............................................................................ 84 Section 10.16. Waiver of Stay or Extension Laws .......................................................... 84 Section 10.17. Action on Notes ....................................................................................... 85 Section 10.18. Performance and Enforcement of Certain Obligations. ........................... 85 Section 10.19. Reassignment of Surplus.......................................................................... 85 ARTICLE 11. THE INDENTURE TRUSTEE ........................................................................... 86 Section 11.1. Duties of the Indenture Trustee. ................................................................. 86 Section 11.2. Rights of the Indenture Trustee .................................................................. 89 Section 11.3. Indenture Trustee Not Liable for Recitals in Notes ................................... 93 Section 11.4. Individual Rights of the Indenture Trustee; Multiple Capacities ............... 93 Section 11.5. Notice of Defaults ...................................................................................... 94 Section 11.6. Compensation. ........................................................................................... 94 Section 11.7. Replacement of the Indenture Trustee. ...................................................... 94 Section 11.8. Successor Indenture Trustee by Merger, etc. ............................................. 96 Section 11.9. Eligibility: Disqualification ....................................................................... 96 Section 11.10. Appointment of Co-Indenture Trustee or Separate Indenture  Trustee................................................................................................ 97 Section 11.11. Preferential Collection of Claims Against the Issuer ............................... 98 Section 11.12. Taxes ........................................................................................................ 98 Section 11.13. [Reserved] ................................................................................................ 98 Section 11.14. Suits for Enforcement .............................................................................. 98 Section 11.15. Reports by Indenture Trustee to Holders ................................................. 98 Section 11.16. Representations and Warranties of Indenture Trustee ............................. 98 Section 11.17. The Issuer Indemnification of the Indenture Trustee ............................... 99 Section 11.18. Indenture Trustee’s Application for Instructions from the Issuer .......... 100 Section 11.19. [Reserved]. ............................................................................................. 100 Section 11.20. Maintenance of Office or Agency.......................................................... 100 Section 11.21. Concerning the Rights of the Indenture Trustee .................................... 100 Section 11.22. Direction to the Indenture Trustee ......................................................... 100 ARTICLE 12. DISCHARGE OF INDENTURE ....................................................................... 100 Section 12.1. Satisfaction and Discharge of Indenture .................................................. 100 Section 12.2. Application of Issuer Money ................................................................... 101 TABLE OF CONTENTS (continued)  Page -iv-  4131-7075-5128  Section 12.3. Repayment of Moneys Held by Paying Agent ........................................ 101 Section 12.4. [Reserved]. ............................................................................................... 101 Section 12.5. Final Payment. ......................................................................................... 101 Section 12.6. Termination Rights of Issuer ................................................................... 102 Section 12.7. Repayment to the Issuer ........................................................................... 102 ARTICLE 13. AMENDMENTS ............................................................................................... 103 Section 13.1. Supplemental Indentures without Consent of the Noteholders ................ 103 Section 13.2. Supplemental Indentures with Consent of Noteholders ........................... 104 Section 13.3. Execution of Supplemental Indentures .................................................... 106 Section 13.4. Effect of Supplemental Indenture ............................................................ 106 Section 13.5. Conformity With TIA .............................................................................. 106 Section 13.6. [Reserved] ................................................................................................ 106 Section 13.7. [Reserved]. ............................................................................................... 106 Section 13.8. Revocation and Effect of Consents .......................................................... 106 Section 13.9. Notation on or Exchange of Notes Following Amendment..................... 107 Section 13.10. The Indenture Trustee to Sign Amendments, etc. .................................. 107 ARTICLE 14. [RESERVED] .................................................................................................... 107 ARTICLE 15. MISCELLANEOUS .......................................................................................... 107 Section 15.1. Compliance Certificates and Opinions, etc .............................................. 107 Section 15.2. Form of Documents Delivered to Indenture Trustee ............................... 108 Section 15.3. Acts of Noteholders. ................................................................................ 109 Section 15.4. Notices ..................................................................................................... 109 Section 15.5. Notices to Noteholders: Waiver ............................................................... 110 Section 15.6. Alternate Payment and Notice Provisions ............................................... 110 Section 15.7. Conflict with TIA ..................................................................................... 111 Section 15.8. Effect of Headings and Table of Contents ............................................... 111 Section 15.9. Successors and Assigns............................................................................ 111 Section 15.10. Separability of Provisions ...................................................................... 111 Section 15.11. Benefits of Indenture .............................................................................. 111 Section 15.12. Legal Holidays ....................................................................................... 111 Section 15.13. GOVERNING LAW; JURISDICTION ................................................ 111 Section 15.14. Counterparts; Electronic Execution ....................................................... 112 Section 15.15. Recording of Indenture .......................................................................... 112 Section 15.16. Issuer Obligation .................................................................................... 112 Section 15.17. No Bankruptcy Petition Against the Issuer ............................................ 113 Section 15.18. No Joint Venture .................................................................................... 113 Section 15.19. Rule 144A Information .......................................................................... 113 Section 15.20. No Waiver; Cumulative Remedies ........................................................ 113 Section 15.21. Third-Party Beneficiaries ....................................................................... 113 Section 15.22. Merger and Integration .......................................................................... 113 Section 15.23. Rules by the Indenture Trustee .............................................................. 114 Section 15.24. Duplicate Originals ................................................................................ 114 Section 15.25. Waiver of Trial by Jury .......................................................................... 114 TABLE OF CONTENTS (continued)  Page -v-  4131-7075-5128  Section 15.26. No Impairment ....................................................................................... 114 Section 15.27. Owner Trustee Limitation of Liability ................................................... 114 





 






TABLE OF CONTENTS (continued)  Page -vi-  4131-7075-5128  Exhibits:  Exhibit A: Form of Release and Reconveyance of Trust Estate  Exhibit B: Form of Lien Release  Exhibit C: Form of Class A Note  Exhibit D: Form of Monthly Statement  Schedule 1 Perfection Representations, Warranties and Covenants  Schedule 2 List of Proceedings 4131-7075-5128  INDENTURE, dated as of December 20, 2021, between OPORTUN CCW TRUST, a  Delaware statutory trust, as issuer (the “Issuer”) and WILMINGTON TRUST, NATIONAL  ASSOCIATION, a national banking association with trust powers, as Indenture Trustee, as  Securities Intermediary and as Depositary Bank.  W I T N E S S E T H:  WHEREAS, the Issuer has duly executed and delivered this Indenture to provide for the  issuance of Notes, issuable as provided in this Indenture; and  WHEREAS, all things necessary to make this Indenture a legal, valid and binding  agreement of the Issuer, enforceable in accordance with its terms, have been done, and the Issuer  proposes to do all the things necessary to make the Notes, when executed by the Issuer and  authenticated and delivered by the Indenture Trustee hereunder and duly issued by the Issuer, the  legal, valid and binding obligations of the Issuer as hereinafter provided;  WHEREAS, simultaneously with the delivery of this Indenture, the Issuer is entering into  the Transfer Agreement pursuant to which the Depositor and the Depositor Receivables Trustee  for the benefit of the Depositor will convey to the Issuer all of their respective right, title and  interest in, to and under certain Transferred Receivables.   NOW, THEREFORE, for and in consideration of the premises and the receipt of the  Notes by the Holders, it is mutually covenanted and agreed, for the equal and proportionate  benefit of all Holders, as follows:  GRANTING CLAUSE  The Issuer hereby grants to the Indenture Trustee at the Closing Date, for the benefit of  the Indenture Trustee, the Indenture Trustee in any other capacity hereunder, including  Depositary Bank, Certificate Registrar and Securities Intermediary, and the Noteholders (the  “Secured Parties”), to secure the Secured Obligations, a continuing Lien on and security interest  in all of the Issuer’s right, title and interest in, to and under the following property whether now  owned or hereafter acquired, now existing or hereafter created and wherever located: (a) all  Transferred Receivables; (b) all Collections thereon received after the applicable Cut-Off Date  and related Recoveries; (c) all Related Security; (d) all other Transferred Assets, (e) the  Collection Account, the Reserve Account and any other account maintained by the Indenture  Trustee for the benefit of the Secured Parties as trust accounts (each such account, a “Trust  Account”), all monies from time to time deposited therein and all money, instruments,  investment property and other property from time to time credited thereto or on deposit therein;  (f) all certificates and instruments, if any, representing or evidencing any or all of the Trust  Accounts or the funds on deposit therein from time to time; (g) all investments made at any time  and from time to time with moneys in the Trust Accounts; (h) the Servicing Agreement, the  Purchase Agreement and the Transfer Agreement; (i) all accounts, chattel paper, commercial tort  claims, deposit accounts, documents, general intangibles, goods, instruments, investment  property, letter-of-credit rights, letters of credit, money, and oil, gas and other minerals, (j) all  additional property that may from time to time hereafter be subjected to the grant and pledge  2  4131-7075-5128  made by the Issuer or by anyone on its behalf; (k) all present and future claims, demands, causes  and choses in action and all payments on or under the foregoing; and (l) all proceeds of every  kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of all  of the foregoing and the conversion thereof, voluntary or involuntary, into cash or other liquid  property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel  paper, checks, deposit accounts, insurance proceeds, investment property, rights to payment of  any and every kind and other forms of obligations and receivables, instruments and other  property which at any time constitute all or part of or are included in the proceeds of any of the  foregoing (collectively, the “Trust Estate”).  The foregoing Grant is made in trust to secure the payment of principal of and interest on,  and any other amounts owing in respect of, the Secured Obligations, equally and ratably without  prejudice, priority or distinction except as set forth herein, and to secure compliance with the  provisions of this Indenture, all as provided in this Indenture.  The Issuer hereby assigns to the Indenture Trustee all of the Issuer’s power to authorize  an amendment to the financing statement filed with the Delaware Secretary of State relating to  the security interest granted to (i) the Issuer by the Depositor and the Depositor Receivables  Trustee for the benefit of the Depositor pursuant to the Transfer Agreement and (ii) the  Depositor and the Depositor Receivables Trustee for the benefit of the Depositor by the Seller  pursuant to the Purchase Agreement; provided, however, that the Indenture Trustee shall be  entitled to all the protections of Article 11, including Sections 11.1(g) and 11.2(k), in connection  therewith, and the obligations of the Issuer under Sections 8.2(i) and 8.3(j) shall remain  unaffected.  The Indenture Trustee, for the benefit of the Secured Parties, hereby acknowledges such  Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture  and the Lien on the Trust Estate conveyed by the Issuer pursuant to the Grant, declares that it  shall maintain such right, title and interest, upon the trust set forth, for the benefit of all Secured  Parties, subject to Sections 11.1 and 11.2, and agrees to perform its duties required in this  Indenture in accordance with the terms of this Indenture.  DESIGNATION  (a) There are hereby created one class of notes to be issued pursuant to this  Indenture and such notes shall be substantially in the form of Exhibit C hereto, executed by or on  behalf of the Issuer and authenticated by the Indenture Trustee and designated generally Variable  Funding Asset Backed Notes, Class A (the “Class A Notes” or the “Notes”).  The Notes shall be  issued with maximum principal amounts in minimum denominations of $1,000,000 and integral  multiples of $10,000 in excess thereof.   (b) The Class A Notes will be variable funding notes.   ARTICLE 1.  DEFINITIONS AND INCORPORATION BY REFERENCE  3  4131-7075-5128  Section 1.1.  Definitions.  Certain capitalized terms used herein (including the  preamble and the recitals hereto) shall have the following meanings:  “Account” means each open-end revolving credit card account, that is identified as an  Initial Account or an Additional Account. The term “Account” also includes each account into  which an Account is transferred (a “Transferred Account”) so long as such Transferred Account  (i) has been transferred in accordance with the Credit and Collection Policy and (ii) can be traced  or identified, by reference to or by way of any Account Schedule delivered to Depositor or the  Depositor Receivables Trustee for the benefit of Depositor and Issuer, as an account into which  an Account has been transferred. Any Account that becomes a Defaulted Account shall cease to  be an Account for all purposes other than the calculation of Recoveries, and no existing balance  or future charges on such account shall be deemed to be Transferred Receivables  notwithstanding any subsequent reaffirmation of such account by the Obligor and any resulting  action by the related Account Owner. The term Account includes an Additional Account only  from and after its Addition Date and excludes any Removed Account after its Removal Date.  “Account Agreement” means with respect to an Account, the agreement by and between  the Account Owner and the Obligor thereof governing the terms and conditions of such Account,  as such agreement may be amended, restated, supplemented or otherwise modified from time to  time.  “Account Owner” means, with respect to any Account, (i) the Initial Originator, or any  other entity that, pursuant to a Program Agreement related to such Account, is the issuer of the  credit cards related to, or the owner of, such Account, and (ii) if such Account is transferred to a  successor Account Owner, such successor Account Owner.  “Account Schedule” has the meaning set forth in the Transfer Agreement.  “Addition Cut-Off Date” has the meaning set forth in the Transfer Agreement.  “Addition Date” has the meaning set forth in the Transfer Agreement.  “Additional Accounts” means any Accounts designated pursuant to Section 2.6 of the  Transfer Agreement.   “Additional Interest” has the meaning specified in Section 5.12(d).  “Adjusted Leverage Ratio” means, on any date of determination, the ratio of (i) Adjusted  Liabilities to (ii) Tangible Net Worth.  “Adjusted Leverage Ratio Covenant” means that the Parent will have a maximum  Adjusted Leverage Ratio of 3.5:1.  “Adjusted Liabilities” means, on any date of determination, the excess of total Liabilities  over the amount of any asset-backed securities that would appear as liabilities on the balance  sheet of the Parent and its Subsidiaries determined on a consolidated basis in accordance with  GAAP.  





 






4  4131-7075-5128  “Administrator” shall mean the Person acting in such capacity from time to time pursuant  to and in accordance with the Trust Agreement, which shall initially be Oportun, Inc.   “Administrator Order” means a written order or request signed in the name of the  Administrator by any one of its Responsible Officers and delivered to the Indenture Trustee.   “ADS Score” means the credit score for an Obligor referred to as the “Alternative Data  Score” determined by the Seller in a manner consistent with the WebBank Agreements and the  Seller’s proprietary scoring method.  “Advance Rate” means, on any date of determination:  (a) prior to the Legacy Expiration Date, the applicable “Advance Rate” set  forth below based on the Aggregate Class A Note Principal on such date of  determination:  Aggregate Class A Note Principal Advance Rate  Less than $18,750,000 75.00%  At least $18,750,000 but less than $40,000,000 80.00%  At least $40,000,000 but less than $65,000,000 81.85%  At least $65,000,000 but less than $90,000,000 82.70%  At least $90,000,000 but less than $115,000,000 83.19%  At least $115,000,000 83.61%  (b)  on or after the Legacy Expiration Date, 85.00%.  “Adverse Claim” means a Lien on any Person’s assets or properties in favor of any other  Person (including any UCC financing statement or any similar instrument filed against such  Person’s assets or properties), other than a Permitted Encumbrance.  “Adverse Effect” means, with respect to any action or event, that such action shall at the  time of its occurrence (a) result in the occurrence of a Rapid Amortization Event or an Event of  Default pursuant to the Transaction Documents, or (b) materially reduce the amount of payments  to be made to the Noteholders pursuant to the Transaction Documents.  “Affiliate” means, with respect to any Person, any other Person directly or indirectly  controlling, controlled by, or under direct or indirect common control with, such Person.  A  Person shall be deemed to control another Person if the controlling Person possesses, directly or  indirectly, the power to direct or cause the direction of the management or policies of the  controlled Person, whether through ownership of voting stock, by contract or otherwise.  “Agent” means any Transfer Agent, Certificate Registrar, Registrar or Paying Agent.  5  4131-7075-5128  “Aggregate Class A Note Principal” means, on any date of determination, the outstanding  principal amount of all Class A Notes, which shall equal the Class A Initial Principal Amount,  plus the aggregate amount of any Increases made prior to such date, minus the aggregate amount  of principal payments (including, without limitation, any Decreases) made to Noteholders prior  to such date.   “Aggregate Committed Purchase Amount” shall have the meaning set forth in the Note  Purchase Agreement.   “Aggregate Eligible Receivables Balance” means, with respect to any date of  determination, an amount equal to the aggregate of the Principal Balance of all Receivables  owned by the Issuer that are Eligible Receivables as of such date of determination (other than  any Eligible Receivables that would cause the Concentration Limits to be exceeded).   “Alternative Rate” means, for any day, the sum of a per annum rate equal to the sum of  (i) the rate set forth in the weekly statistical release designated as H.15(519), or any successor  publication, published by the Federal Reserve Board (including any such successor,  “H.15(519)”) for such day opposite the caption “Federal Funds (Effective)” and (ii) 0.50%.  If on  any relevant day such rate is not yet published in H. 15(519), the rate for such day will be the  rate set forth in the daily statistical release designated as the Composite 3:30 p.m. Quotations for  U.S. Government Securities, or any successor publication, published by the Federal Reserve  Bank of New York (including any such successor, the “Composite 3:30 p.m. Quotations”) for  such day under the caption “Federal Funds Effective Rate.”  If on any relevant day the  appropriate rate is not yet published in either H.15(519) or the Composite 3:30 p.m. Quotations,  the rate for such day will be the arithmetic mean as determined by the Calculation Agent of the  rates for the last transaction in overnight Federal funds arranged before 9:00 a.m. (New York  time) on that day by each of three leading brokers of Federal funds transactions in New York  City selected by the Calculation Agent.   “Amortization Period” means the period commencing on the date on which the  Revolving Period ends and ending on the Facility Termination Date.  “Applicable Margin” has the meaning specified in the Fee Letter, as notified by the Issuer  to the Administrator and the Servicer in writing.  “Applicants” has the meaning specified in Section 4.2(b).  “Available Funds” means, with respect to any Monthly Period, the sum of the following,  without duplication: (a) any Collections received by the Servicer during such Monthly Period  and deposited into the Collection Account no later than the third Business Day following the end  of such Monthly Period, including Collections received during such Monthly Period in respect of  any annual fees, late fees, returned check fees, and any other fees added to any Account; (b) any  amounts on deposit in the Reserve Account in excess of the Reserve Account Requirement; (c)  other amounts in the Reserve Account, but only to the extent necessary (after giving effect to  clauses (a)–(b) above) to increase the balance of Available Funds to an amount sufficient to pay  the amounts required to be paid or distributed pursuant to Section 5.15(a)(i)–(vii); (d) on any  Payment Date after the occurrence and during the continuance of an Event of Default, all  6  4131-7075-5128  amounts in the Reserve Account, and (e) all other amounts held in the Reserve Account on the  earliest of (i) the date on which there is a Decrease in the Notes, (ii) the Legal Final Payment  Date for any class of Notes then outstanding, or (iii) a Payment Date on which such amounts,  together with all other Available Funds, would be sufficient to pay the entire outstanding amount  of the Notes when applied as provided in Section 5.15 hereof.   “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or  payment period for interest calculated with reference to such Benchmark (or component thereof),  as applicable, that is or may be used for determining the length of an Interest Period for any term  rate or otherwise, for determining any frequency of making payments of interest calculated  pursuant to this Indenture as of such date.  “Bankruptcy Code” means the United States Bankruptcy Code, Title 11, U.S.C, as  amended.  “Benchmark” means, initially, One-Month LIBOR; provided that if a Benchmark  Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and  its related Benchmark Replacement Date have occurred with respect to One-Month LIBOR or  the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement  to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant  to clause (b) or clause (c) of Section 5.17.  “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth  in the order below that can be determined by the Required Noteholders, in consultation with the  Issuer, for the applicable Benchmark Replacement Date:  (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement  Adjustment;  (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark  Replacement Adjustment;  (3) the sum of: (a) the alternate benchmark rate that has been selected by the  Required Noteholders and the Issuer as the replacement for the then-current Benchmark  for the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining  such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing  market convention for determining a benchmark rate as a replacement for the then- current Benchmark for dollar-denominated syndicated credit facilities at such time and  (b) the related Benchmark Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on  a screen or other information service that publishes such rate from time to time as selected by the  Required Noteholders in their reasonable discretion; provided further that, notwithstanding  anything to the contrary in this Indenture or in any other Transaction Document, upon the  occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the  applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall  7  4131-7075-5128  be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement  Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).  If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above  would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the  purposes of this Indenture and the other Transaction Documents.  The Required Noteholders shall use commercially reasonable efforts to satisfy any  applicable IRS guidance, including Proposed Treasury Regulation 1.1001-6 and any future  guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for  U.S. federal income Tax purposes of any Class A Note hereunder.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest  Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark  Replacement,” the first alternative set forth in the order below that can be determined by  the Required Noteholders:  (a) the spread adjustment, or method for calculating or determining  such spread adjustment, (which may be a positive or negative value or zero) as of  the Reference Time such Benchmark Replacement is first set for such Interest  Period that has been selected or recommended by the Relevant Governmental  Body for the replacement of such Benchmark with the applicable Unadjusted  Benchmark Replacement for the applicable Corresponding Tenor; and  (b) the spread adjustment (which may be a positive or negative value  or zero) as of the Reference Time such Benchmark Replacement is first set for  such Interest Period that would apply to the fallback rate for a derivative  transaction referencing the ISDA Definitions to be effective upon an index  cessation event with respect to such Benchmark for the applicable Corresponding  Tenor; and  (2) for purposes of clause (3) of the definition of “Benchmark Replacement,”  the spread adjustment, or method for calculating or determining such spread adjustment,  (which may be a positive or negative value or zero) that has been selected by the  Required Noteholders and the Issuer for the applicable Corresponding Tenor giving due  consideration to (i) any selection or recommendation of a spread adjustment, or method  for calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant  Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any  evolving or then-prevailing market convention for determining a spread adjustment, or  method for calculating or determining such spread adjustment, for the replacement of  such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar- denominated syndicated credit facilities at such time;  





 






8  4131-7075-5128  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time  as selected by the Required Noteholders in their reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definition of “Business Day,” the definition of “Interest Period,” timing and frequency of  determining rates and making payments of interest, timing of borrowing requests or prepayment,  conversion or continuation notices, length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Required  Noteholders, in consultation with the Issuer, decide may be appropriate to reflect the adoption  and implementation of such Benchmark Replacement and to permit the administration thereof in  a manner substantially consistent with market practice (or, if the Required Noteholders decide  that adoption of any portion of such market practice is not administratively feasible or if the  Required Noteholders determine that no market practice for the administration of such  Benchmark Replacement exists, in such other manner of administration as the Required  Noteholders, in consultation with the Issuer, decide is reasonably necessary in connection with  the administration of this Indenture and the other Transaction Documents).  “Benchmark Replacement Date” means the earliest to occur of the following events with  respect to the then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information  referenced therein and (b) the date on which the administrator of such Benchmark (or the  published component used in the calculation thereof) permanently or indefinitely ceases  to provide all Available Tenors of such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition  Event,” the first date on which such Benchmark (or the published component used in the  calculation thereof) has been determined and announced by the regulatory supervisor for  the administrator of such Benchmark (or component thereof) to be no longer  representative; provided that such non-representativeness will be determined by reference  to the most recent statement or publication referenced in such clause (3) and even if any  Available Tenor of such Benchmark (or component thereof) continues to be provided on  such date; or  (3) in the case of a Term SOFR Transition Event, the date that is thirty (30)  days after the date a Term SOFR Notice is provided to the Noteholders and the Issuer  pursuant to Section 5.17(c); or   (4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after  the date notice of such Early Opt-in Election is provided to the Noteholders, so long as  the Issuer has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business  Day after the date notice of such Early Opt-in Election is provided to the Noteholders,  written notice of objection to such Early Opt-in Election from Noteholders comprising  the Required Noteholders.  9  4131-7075-5128  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement  Date occurs on the same day as, but earlier than, the Reference Time in respect of any  determination, the Benchmark Replacement Date will be deemed to have occurred prior to the  Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the  occurrence of the applicable event or events set forth therein with respect to all then-current  Available Tenors of such Benchmark (or the published component used in the calculation  thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that such administrator has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof), permanently or  indefinitely, provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory  supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official  with jurisdiction over the administrator for such Benchmark (or such component), a  resolution authority with jurisdiction over the administrator for such Benchmark (or such  component) or a court or an entity with similar insolvency or resolution authority over the  administrator for such Benchmark (or such component), which states that the  administrator of such Benchmark (or such component) has ceased or will cease to  provide all Available Tenors of such Benchmark (or such component thereof)  permanently or indefinitely, provided that, at the time of such statement or publication,  there is no successor administrator that will continue to provide any Available Tenor of  such Benchmark (or such component thereof);   (3) a public statement or publication of information by the regulatory  supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof) announcing that all Available Tenors of such Benchmark (or such  component thereof) are no longer, or as of a specified future date will no longer be,  representative; or  (4) to the extent the then-current Benchmark is One-Month LIBOR or another  benchmark rate derived from LIBOR, any Noteholder reasonably determines (which  determination shall be conclusive) that any Law has made it unlawful, or that any  Governmental Authority has asserted that it is unlawful, for such Noteholder to make,  maintain or fund any Note where the interest rate is determined by reference to LIBOR,  or to determine or charge interest rates based upon LIBOR, or any Governmental  Authority has imposed material restrictions on the authority of such Noteholder to  purchase or sell, or to take deposits of, Dollars in the London interbank market.  10  4131-7075-5128  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to any Benchmark if a public statement or publication of information set  forth above has occurred with respect to each then-current Available Tenor of such Benchmark  (or the published component used in the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time  that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred  if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all  purposes hereunder and under any Transaction Document in accordance with Section 5.17 and  (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark  for all purposes hereunder and under any Transaction Document in accordance with Section  5.17.  “Beneficiary” has the meaning specified in the Trust Agreement.   “Benefit Plan Investor” mean an “employee benefit plan” as defined in Section 3(3) of  ERISA, which is subject to Title I of ERISA, a “plan” as described in Section 4975 of the Code,  which is subject to Section 4975 of the Code, or an entity deemed to hold plan assets of any of  the foregoing.  “Borrowing Base Amount” means, on any date of determination, the product of (i) the  Advance Rate on such date of determination and (ii) the Aggregate Eligible Receivables Balance  on such date of determination.  “Borrowing Base Shortfall” means, on any date of determination, the excess, if any, of (i)  the Aggregate Class A Note Principal over (ii) the Borrowing Base Amount.   “Business Day” means any day other than a Saturday, Sunday or other day on which  banking institutions or trust companies in the States of California, New York or Utah are  authorized or obligated by Law to be closed.  “Calculation Agent” means the party designated as such by the Issuer from time to time,  with the written consent of the Required Noteholders; initially, the Servicer. The Servicer shall  pay to the Calculation Agent from the Servicing Fee reasonable compensation, agreed upon by  the Servicer and the Calculation Agent, for the services performed by the Calculation Agent  hereunder.  “Capitalized Lease” of a Person means any lease of property by such Person as lessee  which would be capitalized on a balance sheet of such Person prepared in accordance with  GAAP.  “Cash Back Account” means an Account that is subject to a cash back reward program.  “Cash Equivalents” means (a) securities with maturities of one hundred twenty (120)  days or less from the date of acquisition issued or fully guaranteed or insured by the United  States government or any agency thereof, (b) certificates of deposit and eurodollar time deposits  with maturities of one hundred twenty (120) days or less from the date of acquisition and  overnight bank deposits of any commercial bank having capital and surplus in excess of  11  4131-7075-5128  $500,000,000, (c) repurchase obligations of any commercial bank satisfying the requirements of  clause (b) of this definition, having a term of not more than seven (7) days with respect to  securities issued or fully guaranteed or insured by the United States government, (d) commercial  paper of a domestic issuer rated at least A-1 or the equivalent thereof by Standard and Poor’s or  P-1 or the equivalent thereof by Moody’s and in either case maturing within ninety (90) days  after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date  of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United  States, by any political subdivision or taxing authority of any such state, commonwealth or  territory or by any foreign government, the securities of which state, commonwealth, territory,  political subdivision, taxing authority or foreign government (as the case may be) are rated at  least A by Standard & Poor’s or A by Moody’s, (f) securities with maturities of ninety (90) days  or less from the date of acquisition backed by standby letters of credit issued by any commercial  bank satisfying the requirements of clause (b) of this definition or, (g) shares of money market  mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses  (a) through (f) of this definition.  “Certificateholder” means a Holder of a Certificate.   “Certificates” means the trust certificates issued by the Issuer pursuant to the Trust  Agreement, representing the beneficial interest in the Issuer.   “Certificate Registrar” shall have the meaning set forth in the Trust Agreement.   “Change in Control” means any of the following:  (a) with respect to Oportun Financial Corporation:  (i) any “person” or “group” (within the meaning of Sections 13(d) and  14(d)(2) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule  13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or  more of the voting power of the then outstanding Capital Stock of Oportun  Financial Corporation entitled to vote generally in the election of the directors of  Oportun Financial Corporation; or  (ii) Oportun Financial Corporation consolidates with or merges into  another corporation (other than a Subsidiary of Oportun Financial Corporation or  conveys, transfers or leases all or substantially all of its property to any person  (other than a Subsidiary of Oportun Financial Corporation), or any corporation  (other than a Subsidiary of Oportun Financial Corporation) consolidates with or  merges into Oportun Financial Corporation, in either event pursuant to a  transaction in which the outstanding Capital Stock of Oportun Financial  Corporation is reclassified or changed into or exchanged for cash, securities or  other property;  (b) the failure of Oportun Financial Corporation to, directly or indirectly  through its Subsidiaries, own 100% of the equity interest of the Seller free and clear of  any Lien; or  





 






12  4131-7075-5128  (c) the failure of the Seller to, directly or indirectly through its Subsidiaries,  own 100% of the equity interest of the Depositor and the Issuer, in each case free and  clear of any Lien.  “Class A Additional Interest” has the meaning specified in Section 5.12(a).  “Class A Deficiency Amount” has the meaning specified in Section 5.12(a).  “Class A Initial Principal Amount” means the aggregate initial principal amount of the  Class A Notes on the Closing Date, which was $41,000,000.00.  “Class A Maximum Principal Amount” means $150,000,000.  “Class A Monthly Interest” has the meaning specified in Section 5.12(a).  “Class A Note Principal” means, on any date of determination and with respect to any  Class A Note, the outstanding principal amount of such Class A Note.   “Class A Note Rate” means, with respect to any day, a variable rate per annum equal to  the sum of (i) the Benchmark on such day (or if the Alternative Rate applies on such day  pursuant to Section 5.17, the Alternative Rate), plus (ii) (x) during the Revolving Period, the  Applicable Margin and (y) otherwise, the Default Margin.  “Class A Noteholder” means a Holder of a Class A Note.  “Class A Notes” has the meaning specified in paragraph (a) of the Designation.  “Closing Date” means December 20, 2021.  “Code” means the Internal Revenue Code of 1986, as amended, and the rules and  Treasury Regulations promulgated thereunder.  “Collection Account” has the meaning specified in Section 5.3(a).  “Collections” means, for any Transferred Receivable for any period (if applicable), (a) the  sum of all amounts (including insurance proceeds), whether in the form of cash, checks, drafts,  instruments or otherwise, received in payment of, or applied to, any amount owed by an Obligor  on account of such Transferred Receivable during such period (other than Recoveries), including  other fees and charges, including (i) amounts received from the Depositor pursuant to Section 2.5  or Section 6.1(d) of the Transfer Agreement and (ii) amounts received from the Servicer pursuant  to Section 2.7 of the Servicing Agreement, (b) cash proceeds of Related Security with respect to  such Transferred Receivable, (c) the amount of Interchange allocable to the Trust Portfolio and  (d) Investment Earnings with respect to the Trust Accounts.  All Recoveries with respect to  Receivables previously charged-off as uncollectible will be treated as Collections of Finance  Charge Receivables.  “Commission” means the U.S. Securities and Exchange Commission, and its successors.  13  4131-7075-5128  “Committed Purchase Amount” shall have the meaning set forth in the Note Purchase  Agreement.   “Concentration Limits” shall be deemed breached if any of the following is true on any  date of determination (unless otherwise specified below, “weighted average” refers to an average  weighted by Outstanding Receivables Balance):    (i) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which have ADS Scores of less than or equal to 520 exceeds 5.0% of the  aggregate Outstanding Receivables Balance of all Eligible Receivables;   (ii) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which have PF Scores of less than or equal to 500 exceeds 5.0% of the  aggregate Outstanding Receivables Balance of all Eligible Receivables;  (iii) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which have VantageScores of less than or equal to 520 exceeds 5.0% of  the aggregate Outstanding Receivables Balance of all Eligible Receivables;  (iv) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which do not have VantageScores exceeds 15.0% of the aggregate  Outstanding Receivables Balance of all Eligible Receivables;  (v) the weighted average credit score of the related Obligors of all Eligible  Receivables (excluding any Eligible Receivables the Obligors of which has no (or a zero)  credit score) is less than: (x) PF Score: 550 and (y) VantageScore: 550;  (vi) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which have billing addresses in the single state with the highest  concentration of Obligors (by Outstanding Receivables Balance) exceeds 40.0% of the  aggregate Outstanding Receivables Balance of all Eligible Receivables;    (vii) the aggregate Outstanding Receivables Balance of all Eligible Receivables  the Obligors of which have billing addresses in the top three states with the highest  concentration of Obligors (by Outstanding Receivables Balance) exceeds 60.0% of the  aggregate Outstanding Receivables Balance of all Eligible Receivables;  (viii) the weighted average 60+ days delinquency status of all Eligible  Receivables exceeds 15.0%;   (ix) the aggregate Outstanding Receivables Balance of all Eligible Receivables  arising under Test Accounts exceeds 10.0% of the aggregate Outstanding Receivables  Balance of all Eligible Receivables;  (x) commencing with the third Monthly Period, the Three-Month Weighted  Average Yield is less than 20% (in which case Receivables shall be excluded from the  Aggregate Eligible Receivables Balance until such Concentration Limit is no longer  14  4131-7075-5128  exceeded, starting with the Receivables with the lowest yield for purposes of calculating  the Three-Month Weighted Average Yield);   (xi) commencing with the sixth Monthly Period the Six-Month Weighted  Average Yield is less than 25% (in which case Receivables shall be excluded from the  Aggregate Eligible Receivables Balance until such Concentration Limit is no longer  exceeded, starting with the Receivables with the lowest yield for purposes of calculating  the Six-Month Weighted Average Yield);   (xii) the aggregate Outstanding Receivables Balance of all Eligible Receivables  related to Accounts that are, or previously have been, subject to a Hardship Program  exceeds 10.0% of the aggregate Outstanding Receivables Balance of all Eligible  Receivables; or  (xiii) the aggregate Outstanding Receivables Balance of all Eligible Receivables  related to Cash Back Accounts exceeds 10.0%.  “Consolidated Parent” means initially, Oportun Financial Corporation, a Delaware  corporation, and any successor to Oportun Financial Corporation as the indirect or direct parent  of Oportun, the financial statements of which are for financial reporting purposes consolidated  with Oportun in accordance with GAAP, or if there is none, then Oportun.  “Contingent Liability” means any agreement, undertaking or arrangement by which any  Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or  indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or  otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness,  obligation or any other liability of any other Person (other than by endorsements of instruments  in the course of collection), or guarantees the payment of dividends or other distributions upon  the shares of any other Person.  The amount of any Person’s obligation under any Contingent  Liability shall (subject to any limitation set forth therein) be deemed to be the outstanding  principal amount (or maximum outstanding principal amount, if larger) of the debt, obligation or  other liability guaranteed thereby.   “Corporate Trust Office” means the principal office of the Indenture Trustee and the  Certificate Registrar, as applicable, at which at any particular time its corporate trust business  shall be administered, which office at the date of the execution of this Indenture is located at  1100 N. Market Street, Wilmington, DE 19890, Attention: Oportun CCW Trust - Corporate  Trust Administration.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either  a tenor (including overnight) or an interest payment period having approximately the same  length (disregarding business day adjustment) as such Available Tenor.   “Coverage Test” has the meaning specified in Section 5.4(c).  “Credit and Collection Policies” means the policies and procedures of an Account Owner  relating to the operation of its credit card business, including the Account Owner’s policies and  procedures for determining the creditworthiness of Obligors and the extension of credit to  15  4131-7075-5128  Obligors, and relating to the maintenance of credit card accounts and collection of credit card  receivables, as such policies and procedures may be amended from time to time.   “Credit Risk Retention Rules” means Regulation RR (17 C.F.R. Part 246), as such rule  may be amended from time to time, and subject to such clarification and interpretation as have  been provided by the Department of Treasury, the Federal Reserve System, the Federal Deposit  Insurance Corporation, the Federal Housing Finance Agency, the Securities and Exchange  Commission and the Department of Housing and Urban Development in the adopting release (79  F.R. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency  or its staff from time to time, in each case, as effective from time to time.  “Cut-Off Date” means (i) in the case of the Initial Accounts, the Initial Cut-Off Date and  (ii) in the case of Additional Accounts, the Addition Cut-Off Date.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate  (which may include a lookback) being established by the Required Noteholders in accordance  with the conventions for this rate selected or recommended by the Relevant Governmental Body  for determining “Daily Simple SOFR” for business loans; provided, that if the Required  Noteholders decide that any such convention is not administratively feasible, then the Required  Noteholders may establish another convention in their reasonable discretion.  “Date of Processing” means, as to any transaction, the day on which the transaction is  first recorded on the Servicer’s computer file of credit accounts (without regard to the effective  date of such recordation) which in any case shall not be later than five (5) Business Days after  receipt thereof.  “Decrease” means a reduction in the Aggregate Class A Note Principal in accordance  with Section 3.2.  “Default” means any occurrence that is, or with notice or lapse of time or both would  become, an Event of Default, a Servicer Default or a Rapid Amortization Event.  “Default Margin” has the meaning specified in the Fee Letter, as notified by the Issuer to  the Administrator and the Servicer in writing.  “Defaulted Receivable” has the meaning set forth in the Purchase Agreement.   “Definitive Notes” has the meaning specified in Section 2.18.  “Default Percentage” means, for any Monthly Period, the aggregate Outstanding  Receivables Balance of all Receivables that became Defaulted Receivables during such Monthly  Period, less Recoveries received during such Monthly Period, expressed as an annualized  percentage of the aggregate Outstanding Receivables Balance of all Eligible Receivables as of  the last day of such Monthly Period.  “Delinquent Receivable” has the meaning set forth in the Purchase Agreement.  





 






16  4131-7075-5128  “Depositary Bank” has the meaning specified in Section 5.3(f) and shall initially be  Wilmington Trust, National Association, acting in such capacity under this Indenture.  “Depositor” means Oportun CCW Depositor, LLC, a special purpose limited liability  company established under the laws of Delaware.  “Depositor Receivables Trust Agreement” means the Depositor Receivables Trust  Agreement, dated as of the Closing Date, between the Depositor and the Depositor Receivables  Trustee, as the same may be amended or supplemented from time to time.  “Depositor Receivables Trustee” means Wilmington Savings Fund Society, FSB, a  federal savings bank.  “Determination Date” means the third Business Day prior to each Payment Date.  “Distributable Funds” means, with respect to any Payment Date, an amount equal to the  sum of (i) the Available Funds for the related Monthly Period, plus (ii) the amount of funds  deposited into the Collection Account pursuant to Section 3.2 since the prior Payment Date.    “Dollars” and the symbol “$” mean the lawful currency of the United States.  “Early Opt-in Election” means, if the then-current Benchmark is One-Month LIBOR, the  occurrence of:  (1) a notification by the Required Noteholders or the Issuer to each of the  other parties hereto and the other Noteholders that at least five currently outstanding  dollar-denominated syndicated credit facilities at such time contain (as a result of  amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR  or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit  facilities are identified in such notice and are publicly available for review), and  (2) the joint election by the Required Noteholders and the Issuer to trigger a  fallback from One-Month LIBOR and the provision by the Issuer of written notice of  such election to each of the other parties hereto and the Noteholders.  “Eligible Receivable” has the meaning set forth in the Purchase Agreement.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended,  and the rules and regulations promulgated thereunder.  “ERISA Affiliate” means, with respect to any Person, (i) any corporation which is a  member of the same controlled group of corporations (within the meaning of Section 414(b) of  the Code) as such Person; (ii) any trade or business (whether or not incorporated) under common  control (within the meaning of Section 414(c) of the Code) with such Person; or (iii) any member  of the same affiliated service group (within the meaning of Section 414(m) of the Code) as such  Person.  17  4131-7075-5128  “ERISA Event” means any of the following: (i) the failure to satisfy the minimum  funding standard under Section 302 of ERISA or Section 412 of the Code with respect to any  Pension Plan; (ii) the filing by the Pension Benefit Guaranty Corporation or a plan administrator  of any notice relating to an intention to terminate any Pension Plan or Pension Plans or an event  or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or  grounds to appoint a trustee to administer any Pension Plan; (iii) the complete withdrawal or  partial withdrawal by any Person or any of its ERISA Affiliates from any Multiemployer Plan;  (iv) any “reportable event” as defined in Section 4043 of ERISA or the regulations issued  thereunder with respect to a Pension Plan (other than an event for which the 30-day notice period  is waived), (v) the commencement of proceedings by the Pension Benefit Guaranty Corporation  to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination under  Section 4041 or 4041A of ERISA, or the termination of any Pension Plan (vi) the receipt by the  Issuer, the Seller, the initial Servicer, or any ERISA Affiliate of any notice concerning a  determination that a Multiemployer Plan is, or is expected to be insolvent within the meaning of  Title IV of ERISA; or (vii) the imposition of any liability under Title IV of ERISA, other than  for Pension Benefit Guaranty Corporation premiums due but not delinquent under Section 4007  of ERISA, upon any Person or any of its ERISA Affiliates with respect to a Pension Plan.  “ERISA Lien” has the meaning specified in Section 7.1(q).  “Event of Default” has the meaning specified in Section 10.1.  “Exchange Act” means the Securities Exchange Act of 1934, as amended.  “Facility Termination Date” means the earliest to occur of (a) the Payment Date on which  the Notes, plus all other amounts due and owing to the Noteholders, are paid in full, (b) the Legal  Final Payment Date and (c) the Indenture Termination Date.  “FATCA” means the Foreign Account Tax Compliance Act provisions, sections 1471  through to 1474 of the Code (including any regulations or official interpretations issued with  respect thereof or agreements thereunder and any amended or successor provisions).  “FATCA Withholding Tax” means any withholding or deduction required pursuant to  FATCA.  “Fee Letter” means the letter agreement, dated as of the date hereof, among the Issuer  and the Noteholders.  “Finance Charge Receivables” means Receivables created in respect of periodic finance  charges, cash advance fees, membership fees and annual service charges, late fees, returned  check fees and all other similar fees and charges billed or accrued and unpaid on an Account  designated to the Trust Portfolio.    “Financial Covenants” means each of the Leverage Ratio Covenant, the Adjusted  Leverage Ratio Covenant, the Liquidity Covenant and the Tangible Net Worth Covenant.  “Fiscal Year” means any period of twelve consecutive calendar months ending on  December 31.  18  4131-7075-5128  “Fitch” means Fitch, Inc.  “Floor” means the benchmark rate floor, if any, provided in this Indenture initially (as of  the execution of this Indenture, the modification, amendment or renewal of this Indenture or  otherwise) with respect to One-Month LIBOR.  “GAAP” means those principles of accounting set forth in pronouncements of the  Financial Accounting Standards Board, the American Institute of Certified Public Accountants or  which have other substantial authoritative support and are applicable in the circumstances as of  the date of a report , as such principles are from time to time supplemented and amended.  “Governmental Authority” means any government or political subdivision or any agency,  authority, bureau, central bank, commission, department or instrumentality of any such  government or political subdivision, or any court, tribunal, grand jury or arbitrator, in each case  whether foreign or domestic.  “Grant” means the Issuer’s grant of a Lien on the Trust Estate as set forth in the Granting  Clause of this Indenture.  “Hardship Program ” means any program of an Account Owner, established pursuant to  the Credit and Collection Policies, to provide payment relief to Obligors who have suffered a  temporary life event and who demonstrate a willingness and ability to make payments on their  Account.   “Holder” means the Person in whose name a Note is registered in the Note Register.  “In-Store Payments” means payments received from or on behalf of Obligors at a retail  location operated by the Seller or its partners.   “Increase” has the meaning specified in Section 3.1(b).  “Indebtedness” means, with respect to any Person, such Person’s (i) obligations for  borrowed money, (ii) obligations representing the deferred purchase price of property other than  accounts payable arising in the ordinary course of such Person’s business on terms customary in  the trade, (iii) obligations, whether or not assumed, secured by Liens on or payable out of the  proceeds or production from, property now or hereafter owned or acquired by such Person,  (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized  Lease obligations and (vi) obligations of another Person of a type described in clauses (i) through  (v) above, for which such Person is obligated pursuant to a guaranty, put or similar arrangement.  “Indenture” means this Indenture, as amended, restated, modified or supplemented from  time to time.  “Indenture Termination Date” has the meaning specified in Section 12.1.  “Indenture Trustee” means initially Wilmington Trust, National Association, acting in  such capacity under this Indenture, and its successors and any corporation resulting from or  19  4131-7075-5128  surviving any consolidation or merger to which it or its successors may be a party and any  successor trustee appointed in accordance with the provisions of this Indenture.  “Independent” means, when used with respect to any specified Person, that such Person  (a) is in fact independent of the Issuer, any other obligor upon the Notes, the initial Servicer, the  Seller, the Depositor and any Affiliate of any of the foregoing Persons, (b) does not have any  direct financial interest or any material indirect financial interest in the Issuer, any such other  obligor, the initial Servicer, the Seller, the Depositor or any Affiliate of any of the foregoing  Persons and (c) is not connected with the Issuer, any such other obligor, the initial Servicer, the  Seller, the Depositor or any Affiliate of any of the foregoing Persons as an officer, employee,  promoter, underwriter, trustee, partner, director or Person performing similar functions.  “Independent Certificate” means a certificate or opinion to be delivered to the Indenture  Trustee under the circumstances described in, and otherwise complying with, the applicable  requirements of Section 15.1, prepared by an Independent appraiser or other expert appointed by  an Issuer Order or an Administrator Order and approved by the Indenture Trustee in the exercise  of reasonable care, and such opinion or certificate shall state that the signer has read the  definition of “Independent” in this Indenture and that the signer is Independent within the  meaning thereof.  “Ineligible Receivable” means any Transferred Receivable designated as an “Ineligible  Receivable” by the Depositor pursuant to Section 6.1(c) of the Transfer Agreement.  “Initial Account” means each revolving credit card account identified in the Account  Schedule delivered in connection with the initial designation of Accounts pursuant to the  Transfer Agreement.  “Initial Cut-Off Date” has the meaning set forth in the Transfer Agreement.  “Initial Originator” means WebBank, a Utah state-chartered bank.  “Insolvency Event” shall be deemed to have occurred with respect to a Person if:  (a) a Proceeding shall be commenced, without the application or consent of such  Person, before any Governmental Authority, seeking the liquidation, reorganization, debt  arrangement, dissolution, winding up, or composition or adjustment of debts of such Person, the  appointment of a trustee, receiver, custodian, liquidator, assignee or the like for such Person or  all or substantially all of its assets, or any similar action with respect to such Person under any  Law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment  of debts, and in the case of any Person, such Proceeding shall continue undismissed, or unstayed  and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such  Person shall be entered in an involuntary case under the federal bankruptcy Laws or other similar  Laws now or hereafter in effect; or  (b) such Person shall (i) consent to the institution of any Proceeding or petition  described in clause (a) of this definition, or (ii) commence a voluntary Proceeding under any  applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar  Law now or hereafter in effect, or shall consent to the appointment of or taking possession by a  





 






20  4131-7075-5128  receiver, liquidator, assignee, trustee, custodian or other similar official for such Person or for  any substantial part of its property, or shall make any general assignment for the benefit of  creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they  become due, or, if a corporation or similar entity, its board of directors shall vote to implement  any of the foregoing.  “Interest Period” means, with respect to any Payment Date, the prior Monthly Period.  “Investment Company Act” means the Investment Company Act of 1940, as amended.  “Investment Earnings” means all interest and earnings (net of losses and investment  expenses) accrued on funds on deposit in the Trust Accounts.  “Issuer” has the meaning specified in the preamble of this Indenture.  “Issuer Distributions” has the meaning specified in Section 5.4(c).  “Issuer Order” and “Issuer Request” means a written order or request signed in the name  of the Issuer by any one of its Responsible Officers and delivered to the Indenture Trustee.  “Law” means any law (including common law), constitution, statute, treaty, regulation,  rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority.  “Legacy Additional Interest” has the meaning specified in the Fee Letter, as notified by  the Issuer to the Servicer in writing.  “Legacy Expiration Date” means February 5, 2023.  “Legal Final Payment Date” means the Payment Date immediately following the 365th  day after the commencement of the Amortization Period.  “Leverage Ratio” means, on any date of determination, the ratio of (i) Liabilities to (ii)  Tangible Net Worth.  “Leverage Ratio Covenant” means that the Parent will have a maximum Leverage Ratio  equal to the lesser of (i) 11.5:1 and (ii) the maximum leverage ratio or similar covenant for the  Parent set forth in any Oportun Comparable Facility.  “Liabilities” means, on any date of determination, the total liabilities which would  appear on the balance sheet of the Parent and its Subsidiaries determined on a consolidated  basis in accordance with GAAP.  “LIBOR” has the meaning assigned to such term in Section 5.12(b).  “Lien” means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit  arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference,  priority or other security agreement or preferential arrangement of any kind or nature whatsoever  (including any lease or title retention agreement, any financing lease having substantially the  21  4131-7075-5128  same economic effect as any of the foregoing, and the filing of, or agreement to give, any  financing statement perfecting a security interest under the UCC or comparable Law of any  jurisdiction).  “Liquidity Covenant” means that the Seller will have a minimum liquidity equal to the  greater of (i) $10,000,000, equal to unrestricted cash or Cash Equivalents, and (ii) the minimum  liquidity or similar covenant for the Seller set forth in any Oportun Comparable Facility.  “London Banking Day” means, for the purpose of determining One-Month LIBOR, any  day that banking institutions in London, England are open for business other than a Saturday,  Sunday or other day on which banking institutions in London, England trading in Dollar deposits  in the London interbank market are authorized or obligated by law or executive order to be  closed.   “Material Adverse Effect” means any event or condition which would have a material  adverse effect on (i) the collectability of any material portion of the Receivables, (ii) the  condition (financial or otherwise), businesses or properties of the Issuer, the Depositor, the  Servicer or the Seller, (iii) the ability of the Issuer, the Depositor or the Seller to perform its  respective obligations under the Transaction Documents or the ability of the Servicer to perform  its obligations under the Servicer Transaction Documents or (iv) the interests of the Indenture  Trustee or any Secured Party in the Trust Estate or under the Transaction Documents.  “Monthly Period” means the period from and including the first day of a calendar month  to and including the last day of a calendar month; provided, however, that the first Monthly  Period shall be the period from and including the Closing Date to and including January 31,  2022.  “Monthly Servicer Report” means a report substantially in the form attached as Exhibit B  to the Servicing Agreement or in such other form as the Servicer may determine to be necessary  or desirable (with the prior written consent of the Indenture Trustee and the Required  Noteholders).  “Monthly Statement” means a statement substantially in the form attached hereto as  Exhibit D, with such changes as the Servicer may determine to be necessary or desirable (with  prior written consent of the Required Noteholders).  “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of  ERISA with respect to which the Seller, the Issuer, the Servicer or any of their respective ERISA  Affiliates is making, is obligated to make, or has made or been obligated to make, contributions.  “Note Principal” means on any date of determination the then outstanding principal  amount of the Notes.  “Note Purchase Agreement” means the agreement among WebBank, as an initial Class A  Noteholder, each of the other Class A Noteholders from time to time party thereto, Oportun, Inc.,  the Depositor and the Issuer, dated as the date hereof, pursuant to which each of the Class A  22  4131-7075-5128  Noteholders have agreed to purchase an interest in the Class A Notes from the Issuer, subject to  the terms and conditions set forth therein, as amended, supplemented or otherwise modified from  time to time.   “Note Register” has the meaning specified in Section 2.6(a).  “Noteholder” means with respect to any Note, the holder of record of such Note.  “Notes” has the meaning specified in paragraph (a) of the Designation.  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or  any successor source.  “Obligor” means, with respect to any Receivable, the Person or Persons obligated to  make payments with respect to such Receivable, including any guarantor thereof.  “Officer’s Certificate” means a certificate signed by any Responsible Officer of the  Person providing the certificate.  “One-Month LIBOR” means, with respect to any day of determination, the composite  London interbank offered rate for one-month Dollar deposits determined by the Calculation  Agent for such day in accordance with the provisions of Section 5.17 (or if such day is not a  London Banking Day, then the immediately preceding London Banking Day); provided that if  One-Month LIBOR as so determined would be less than 0%, such rate shall be deemed to be 0%  for the purposes of this Indenture.  “Opinion of Counsel” means one or more written opinions of counsel to the Issuer, the  Depositor, the Seller or the Servicer who (except in the case of opinions regarding matters of  organizational standing, power and authority, conflict with organizational documents, conflict  with agreements other than Transaction Documents, qualification to do business, licensure and  litigation or other Proceedings) shall be external counsel, satisfactory to the Indenture Trustee,  which opinions shall comply with any applicable requirements of Section 15.1 and TIA  Section 314, if applicable, and shall be in form and substance satisfactory to the Indenture  Trustee, and shall be addressed to the Indenture Trustee.  An Opinion of Counsel may, to the  extent same is based on any factual matter, rely on an Officer’s Certificate as to the truth of such  factual matter.  “Oportun” means Oportun, Inc., a Delaware corporation.  “Oportun Comparable Facility” means each of (i) the consumer loan credit facility  involving Oportun PLW, LLC, as borrower, and (ii) the consumer loan-backed residual  certificate financing facility involving Oportun RF, LLC, as issuer.  “Outstanding Receivables Balance” means, as of any date with respect to any Receivable,  an amount equal to the outstanding principal balance for such Receivable; provided, however,  23  4131-7075-5128  that if not otherwise specified, the term “Outstanding Receivables Balance” shall refer to the  Outstanding Receivables Balance of all Receivables collectively.  “Owner Trustee” means Wilmington Savings Fund Society, FSB, a federal savings bank.  “Parent” means Oportun Financial Corporation.  “Paying Agent” means any paying agent appointed pursuant to Section 2.7 and shall  initially be the Indenture Trustee.  “Payment Date” means February 8, 2022 and the eighth (8th) day of each calendar month  thereafter, or if such eighth (8th) day is not a Business Day, the next succeeding Business Day.  “Pension Plan” means an “employee pension benefit plan” as described in Section 3(2) of  ERISA (excluding a Multiemployer Plan) that is subject to Title IV of ERISA or Section 302 of  ERISA or 412 of the Code, and in respect of which the Issuer, the Seller, the initial Servicer or  any ERISA Affiliate thereof is, or at any time during the immediately preceding six (6) years  was, an “employer” as defined in Section 3(5) of ERISA, or with respect to which the Issuer, the  Seller, the initial Servicer or any of their respective ERISA Affiliates has any liability, contingent  or otherwise.  “Perfection Representations” means the representations, warranties and covenants set  forth in Schedule 1 attached hereto.  “Permissible Uses” means the use of funds by the Issuer to (a) pay the Depositor for  additional Receivables, including in connection with Issuer Distributions pursuant to Section  5.4(c), subject to the limitations therein, or (b) pay amounts payable to Noteholders in  connection with a Decrease.  “Permitted Encumbrance” means (a) with respect to the Issuer or the Depositor, any item  described in clause (i), (iv), (vi) or (vii) of the following, and (b) with respect to the Seller, any  item described in clauses (i) through (vii) of the following:  (i) Liens for taxes and assessments that are not yet due and payable or that  are being contested in good faith and for which reserves have been established, if  required in accordance with GAAP;  (ii) Liens of or resulting from any judgment or award, the time for the appeal  or petition for rehearing of which shall not have expired, or in respect of which the  Seller shall at any time in good faith be prosecuting an appeal or proceeding for a review  and with respect to which adequate reserves or other appropriate provisions are being  maintained in accordance with GAAP;  (iii) Liens incidental to the conduct of business or the ownership of properties  and assets (including mechanics’, carriers’, repairers’, warehousemen’s and statutory  landlords’ liens and liens to secure the performance of leases) and Liens to secure  statutory obligations, surety or appeal bonds or other Liens of like general nature  incurred in the ordinary course of business and not in connection with the borrowing of  





 






24  4131-7075-5128  money, provided in each case, the obligation secured is not overdue, or, if overdue, is  being contested in good faith by appropriate actions or Proceedings and with respect to  which adequate reserves or other appropriate provisions are being maintained in  accordance with GAAP;  (iv) Liens in favor of the Indenture Trustee, or otherwise created by the  Issuer, the Depositor, the Depositor Receivables Trustee, the Seller or the Indenture  Trustee pursuant to the Transaction Documents;  (v) Liens that, in the aggregate do not exceed $250,000 (such amount not to  include Permitted Encumbrances under clauses (i) through (iv) or (vi)) and which,  individually or in the aggregate, do not materially interfere with the rights under the  Transaction Documents of the Indenture Trustee or any Noteholder in any of the  Receivables;   (vi) any Lien created in favor of the Issuer, the Depositor, the Depositor  Receivables Trustee or the Seller in connection with the purchase of any Receivables by  the Issuer, the Depositor, the Depositor Receivables Trustee or the Seller and covering  such Receivables that are sold to the Seller, the Depositor, the Depositor Receivables  Trustee or the Issuer pursuant to the Transaction Documents; and   (vii) any Lien created in favor of the Seller or an Affiliate of the Seller in  connection with the purchase of any Receivables by the Seller or such Affiliate and  covering such Receivables that are sold by WebBank to the Seller or such Affiliate  under the WebBank Agreements.  “Permitted Investments” means book-entry securities, uncertificated securities,  negotiable instruments or securities represented by instruments in bearer or registered form and  that evidence:  (a) direct obligations of, and obligations fully guaranteed as to the full and  timely payment by, the United States;  (b) demand deposits, time deposits or certificates of deposit of any  depository institution or trust company incorporated under the Laws of the United States or any  state thereof or the District of Columbia (or any domestic branch of a foreign bank) and subject  to supervision and examination by federal or state banking or depository institution authorities  (including depository receipts issued by any such institution or trust company as custodian with  respect to any obligation referred to in clause (a) above or a portion of such obligation for the  benefit of the holders of such depository receipts); provided that at the time of the investment or  contractual commitment to invest therein (which shall be deemed to be made again each time  funds are reinvested following each Payment Date), the commercial paper or other short-term  senior unsecured debt obligations (other than such obligations the rating of which is based on  the credit of a person other than such depository institution or trust company) of such depository  institution or trust company shall have a credit rating from a Rating Agency in the highest  investment category granted thereby;  25  4131-7075-5128  (c) commercial paper having, at the time of the investment or contractual  commitment to invest therein, a rating from Fitch of “F2” or the equivalent thereof from  Moody’s or Standard & Poor’s; or   (d) only to the extent permitted by Rule 3a-7 under the Investment Company  Act, investments in money market funds having a rating from Fitch of “AA” or, to the extent  not rated by Fitch, rated in the highest rating category by Moody’s, Standard & Poor’s or  another Rating Agency.  Permitted Investments may be purchased by or through the Indenture Trustee or any of its  Affiliates.  “Person” means any corporation, limited liability company, natural person, firm, joint  venture, partnership, trust, unincorporated organization, enterprise, government or any  department or agency of any government.  “PF Score” means the credit score for an Obligor referred to as the “PF Score”  determined by the Seller in a manner consistent with the WebBank Agreements and the Seller’s  proprietary scoring method.  “Principal Receivable” means each Receivable, other than a Finance Charge Receivable.  “Proceeding” means any suit in equity, action at law or other judicial or administrative  proceeding.  “Program Agreement” means (i) with respect to the Initial Originator, the Amended and  Restated Credit Card Program and Servicing Agreement, dated as of February 5, 2021, between  the Initial Originator and Oportun and (ii) with respect to any other Account Owner, the related  agreement pursuant to which Oportun provides a credit card program to such Account Owner  and its customers.  “Purchase Agreement” means the Receivables Purchase Agreement, dated as of the  Closing Date, among the Seller, the Depositor and the Depositor Receivables Trustee, as such  agreement may be amended, supplemented or otherwise modified and in effect from time to  time.  “Purchase Date” means the Closing Date and each date thereafter on which the Depositor  and the Depositor Receivables Trustee for the benefit of the Depositor purchase Receivables  from the Seller pursuant to the Purchase Agreement and transfer such Receivables to the Issuer  pursuant to the Transfer Agreement.  “Qualified Institution” means a depository institution or trust company:  (a) whose commercial paper, short-term unsecured debt obligations or other  short-term deposits have a rating commonly regarded as “investment grade” by at least one  Rating Agency, if the deposits are to be held in the account for 30 days or less, or  26  4131-7075-5128  (b) whose long-term unsecured debt obligations have a rating commonly  regarded as “investment grade” by at least one Rating Agency, if the deposits are to be held in  the account more than 30 days.  “Rapid Amortization Date” means the date on which a Rapid Amortization Event is  deemed to occur.   “Rapid Amortization Event” has the meaning specified in Section 9.1.  “Rating Agency” means any nationally recognized statistical rating organization.  “Receivable” means any amount owing by an Obligor with respect to an Account from  time to time, including amounts payable for Principal Receivables and Finance Charge  Receivables. Receivables that become Defaulted Receivables shall cease to be included as  Receivables as of the day on which they become Defaulted Receivables.  “Record Date” means, with respect to any Payment Date, the last Business Day of the  preceding Monthly Period.  “Records” means all Account Agreements and other documents, books, records and other  information (including computer programs, tapes, disks, data processing software and related  property and rights, but excluding any computer programs or software subject to a licensing  arrangement or other contractual provisions that would restrict the transfer or pledge thereof),  prepared and maintained by any Account Owner, the Seller, the Servicer or the Issuer with  respect to the Receivables and the Obligors thereunder.  “Recoveries” means, with respect to any Transferred Receivable, (a) amounts received  after such Transferred Receivable became a Defaulted Receivable but before any sale or other  disposition of such Transferred Receivable; and (b) any proceeds from a sale or other disposition  by Depositor of such a Transferred Receivable after such Transferred Receivable became a  Defaulted Receivable, in each of clauses (a) and (b) net of expenses of recovery.  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is One-Month LIBOR, 11:00 a.m. (London time) on the day that is two London  banking days preceding the date of such setting, and (2) if such Benchmark is not One-Month  LIBOR, the time determined by the Required Noteholders in their reasonable discretion.  “Registered Notes” has the meaning specified in Section 2.1.  “Related Security” means with respect to any Receivable: (a) all of the Issuer’s interest, if  any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of  which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or  arrangements of any kind from time to time supporting or securing payment of such Receivable  whether pursuant to the Account Agreement related to such Receivable or otherwise; and (c) all  Records relating to such Receivable.  27  4131-7075-5128  “Relevant Governmental Body” means the Federal Reserve Board or the NYFRB, or a  committee officially endorsed or convened by the Federal Reserve Board or the NYFRB, or any  successor thereto.  “Removal Cut-Off Date” has the meaning set forth in the Transfer Agreement.   “Removal Date” has the meaning set forth in the Transfer Agreement.  “Removed Accounts” has the meaning set forth in Section 2.7(a) of the Transfer  Agreement.   “Removed Receivables” means Receivables released from the Trust Estate in accordance  with Section 5.8.  “Required Certificateholders” means the holders of Certificates representing a percentage  interest in excess of 50% of the Certificates outstanding.  “Required Monthly Payments” has the meaning specified in Section 5.4(c).  “Required Noteholders” means each of (a) WebBank (but only if WebBank or an affiliate  thereof is then holding any Notes) and (b) the holders of the Class A Notes representing (i) in  excess of 50% of the aggregate principal balance of the Class A Notes outstanding or (ii) if no  amount is then outstanding under the Class A Notes, Committed Purchase Amounts in excess of  50% of the Aggregate Committed Purchase Amount (or, if the Class A Notes have been paid in  full, the Required Certificateholders).  “Requirements of Law” means, as to any Person, the organizational documents of such  Person and any Law applicable to or binding upon such Person or any of its property or to which  such Person or any of its property is subject.  “Reserve Account” has the meaning specified in Section 5.3(b).  “Reserve Account Requirement” means, for any Monthly Period, (a) initially, and for so  long as the Three-Month Average Default Percentage for such Monthly Period is less than  18.0%, zero, (b) commencing with the third Monthly Period, (i) if the Three-Month Average  Default Percentage for such Monthly Period is equal to or greater than 18.0% but less than  19.0%, an amount equal to 1.0% of the Aggregate Eligible Receivables Balance, and (ii) if the  Three-Month Average Default Percentage for such Monthly Period is equal to or greater than  19.0%, an amount equal to 2.0% of the Aggregate Eligible Receivables Balance.   “Responsible Officer” means (i) with respect to any Person, the member, the Chairman,  the President, the Controller, any Vice President, the Secretary, the Treasurer, or any other  officer of such Person or of a direct or indirect managing member of such Person, who  customarily performs functions similar to those performed by any of the above-designated  officers and also, with respect to a particular matter any other officer to whom such matter is  referred because of such officer’s knowledge of and familiarity with the particular subject and  (ii) with respect to the Indenture Trustee, in any of its capacities hereunder, a Trust Officer.  





 






28  4131-7075-5128  “Revolving Period” means the period from and including the Closing Date to, but not  including, the earlier of (i) the Scheduled Amortization Period Commencement Date and (ii) the  Rapid Amortization Date.  “Rule 144A” has the meaning specified in Section 2.9(a).   “Scheduled Amortization Period Commencement Date” means December 1, 2023 (as  such date may be extended pursuant to Section 2.4 of the Note Purchase Agreement).  “Secured Obligations” means (i) all principal and interest, at any time and from time to  time, owing by the Issuer on the Notes (including any Note held by the Seller, the Depositor, the  Servicer, the Parent or any Affiliate of any of the foregoing), and (ii) all costs, fees, expenses,  indemnity and other amounts owing or payable by, or obligations of, the Issuer to any Secured  Party under the Indenture or the other Transaction Documents.  “Secured Parties” has the meaning specified in the Granting Clause of this Indenture.  “Securities Act” means the Securities Act of 1933, as amended.  “Securities Intermediary” has the meaning specified in Section 5.3(e) and shall initially  be Wilmington Trust, National Association, acting in such capacity under this Indenture.  “Seller” means Oportun.  “Servicer” means initially Oportun, Inc. and its permitted successors and assigns and  thereafter any Person appointed as successor pursuant to the Servicing Agreement to service the  Receivables.  “Servicer Default” has the meaning specified in Section 5.1 of the Servicing Agreement.  “Servicer Transaction Documents” means collectively, the Indenture and the Servicing  Agreement, as applicable.  “Servicing Agreement” means the Servicing Agreement, dated as of the Closing Date,  among the Issuer and the Servicer, as the same may be amended or supplemented from time to  time.  “Servicing Fee” means (A) for any Monthly Period during which Oportun, Inc. or any  Affiliate acts as Servicer, an amount equal to the product of (i) 5.00%, (ii) 1/12 and (iii) the  average daily Aggregate Eligible Receivables Balance for such Monthly Period (provided, that  the Servicing Fee for the first Payment Date shall be based upon the actual number of days in the  first Monthly Period and assuming a 30-day month), and (B) for any Monthly Period during  which any other successor Servicer acts as Servicer, the Servicing Fee shall be an amount equal  to the product of (a) the current market rate for servicing receivables similar to the Receivables,  (b) 1/12 and (c) the average daily Aggregate Eligible Receivables Balance for such Monthly  Period.  29  4131-7075-5128  “Similar Law” means applicable Law that is substantially similar to Section 406 of  ERISA or Section 4975 of the Code.  “Six-Month Weighted Average Yield” means, for any Monthly Period, the percentage  equivalent of a fraction, (i) the numerator of which is the sum, with respect to each of the six  most recent Monthly Periods (which may include such Monthly Period), of the total Collections,  other than Collections with respect to Principal Receivables, received during each such Monthly  Period, and (ii) the denominator of which is the sum, with respect to each of the six most recent  Monthly Periods (which may include such Monthly Period), of the daily average Outstanding  Receivables Balance of all Eligible Receivables for each such Monthly Period.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured  overnight financing rate for such Business Day published by the SOFR Administrator on the  SOFR Administrator’s Website on the immediately succeeding Business Day.  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).  “SOFR Administrator’s Website” means the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “Solvent” means with respect to any Person that as of the date of determination both  (A)(i) the then fair saleable value of the property of such Person is (y) greater than the total  amount of liabilities (including Contingent Liabilities) of such Person and (z) not less than the  amount that will be required to pay the probable liabilities on such Person’s then existing debts  as they become absolute and matured considering all financing alternatives and potential asset  sales reasonably available to such Person; (ii) such Person’s capital is not unreasonably small in  relation to its business or any contemplated or undertaken transaction; and (iii) such Person does  not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond  its ability to pay such debts as they become due; and (B) such Person is “solvent” within the  meaning given that term and similar terms under applicable Laws relating to fraudulent transfers  and conveyances.  For purposes of this definition, the amount of any Contingent Liability at any  time shall be computed as the amount that, in light of all of the facts and circumstances existing  at such time, represents the amount that can reasonably be expected to become an actual or  matured liability.  “Standard & Poor’s” means S&P Global Ratings.   “Subsidiary” of a Person means any other Person more than 50% of the outstanding  voting interests of which shall at any time be owned or controlled, directly or indirectly, by such  Person or by one or more other Subsidiaries of such Person or any similar business organization  which is so owned or controlled.  “Supplement” means a supplement to this Indenture complying with the terms of Article  13 of this Indenture.   30  4131-7075-5128  “Tangible Net Worth” means, on any date of determination, the total shareholders’  equity (including capital stock, additional paid-in capital and retained earnings after  deducting treasury stock) which would appear on the balance sheet of the Parent and its  Subsidiaries determined on a consolidated basis in accordance with GAAP, less the sum of  (a) all notes receivable from officers and employees of the Parent and its Subsidiaries and  from affiliates of the Parent, and (b) the aggregate book value of all assets which would be  classified as intangible assets under GAAP, including, without limitation, goodwill, patents,  trademarks, trade names, copyrights, and franchises.  “Tangible Net Worth Covenant” means that the Parent will have a minimum Tangible  Net Worth equal to the greater of (i) $100,000,000 and (ii) the minimum tangible net worth or  similar covenant for the Parent set forth in any Oportun Comparable Facility.  “Tax Information” means information and/or properly completed and signed tax  certifications and/or documentation sufficient to eliminate the imposition of or to determine the  amount of any withholding of tax, including FATCA Withholding Tax.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or  recommended by the Relevant Governmental Body.  “Term SOFR Notice” means a notification by the Required Noteholders to the  Noteholders and the Issuer of the occurrence of a Term SOFR Transition Event.   “Term SOFR Transition Event” means the determination by the Required Noteholders  that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the  administration of Term SOFR is administratively feasible and (c) a Benchmark Transition Event  or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark  Replacement in accordance with Section 5.17 that is not Term SOFR.  For the avoidance of  doubt, the Required Noteholders shall not be required to deliver a Term SOFR Notice after a  Term SOFR Transition Event and may do so in their sole discretion.  “Test Account” means an Account established solely for the purpose of user acceptance  testing.  “Three-Month Average Default Percentage” means, for any Monthly Period, the average  Default Percentage for the three most recent Monthly Periods (which may include such Monthly  Period).   “Three-Month Average Principal Payment Rate” means, for any Monthly Period, the  percentage equivalent of a fraction, (i) the numerator of which is the sum, with respect to each of  the three most recent Monthly Periods (which may include such Monthly Period), of the  aggregate Collections received in respect of Principal Receivables during each such Monthly  Period, and (ii) the denominator of which is the sum, with respect to each of the three most  recent Monthly Periods (which may include such Monthly Period), of the daily average  Outstanding Receivables Balance of all Principal Receivables for each such Monthly Period.  31  4131-7075-5128  “Three-Month Weighted Average Yield” means, for any Monthly Period, the percentage  equivalent of a fraction, (i) the numerator of which is the sum, with respect to each of the three  most recent Monthly Periods (which may include such Monthly Period), of the total Collections,  other than Collections in respect of Principal Receivables, received during each such Monthly  Period, and (ii) the denominator of which is the sum, with respect to each of the three most  recent Monthly Periods (which may include such Monthly Period), of the daily average  Outstanding Receivables Balance of all Eligible Receivables for each such Monthly Period.  “Transaction Documents” means, collectively, this Indenture, the Notes, the Servicing  Agreement, the Purchase Agreement, the Transfer Agreement, the Trust Agreement, the  Depositor Receivables Trust Agreement and the Note Purchase Agreement.   “Transfer Agent and Registrar” has the meaning specified in Section 2.6 and shall  initially, and so long as Wilmington Trust, National Association is acting as Indenture Trustee,  be the Indenture Trustee.  “Transfer Agreement” means the Receivables Transfer Agreement, dated as of the  Closing Date, among the Issuer, the Depositor, and the Depositor Receivables Trustee, as such  agreement may be amended, supplemented or otherwise modified and in effect from time to  time.  “Transferred Account” has the meaning specified within the definition of Account.  “Transferred Assets” has the meaning specified in Section 2.1 of the Transfer Agreement.  “Transferred Receivable” means a Receivable that has been transferred by the Depositor  and the Depositor Receivables Trustee for the benefit of the Depositor to the Issuer under the  Transfer Agreement.   “Trust Account” has the meaning specified in the Granting Clause to this Indenture..  “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of the  Closing Date, among the Depositor, the Owner Trustee, the Certificate Registrar and the  Administrator, as the same may be amended or supplemented from time to time.  “Trust Estate” has the meaning specified in the Granting Clause of this Indenture.  “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force on the  date hereof, unless otherwise specifically provided.  “Trust Officer” means any officer within the Corporate Trust Office (or any successor  group of the Indenture Trustee), including any Vice President, any Director, any Managing  Director, any Assistant Vice President or any other officer of the Indenture Trustee customarily  performing functions similar to those performed by any individual who at the time shall be an  above-designated officer and is directly responsible for the day-to-day administration of the  transactions contemplated herein.  





 






32  4131-7075-5128  “Trust Portfolio” means, collectively, the Accounts that are listed on the Account  Schedule most recently delivered to the Issuer by the Depositor.  “Trustee Fees and Expenses” means, for any Payment Date, the amount of accrued and  unpaid fees (including, without limitation, the Servicing Fee of any successor Servicer),  indemnity amounts and reasonable out-of-pocket expenses for the successor Servicer or the  Indenture Trustee (including in its capacity as Agent), the Securities Intermediary, the  Depositary Bank, the Certificate Registrar, the Owner Trustee, the Depositor Receivables  Trustee and any successor Servicer (but, as to expenses and indemnity amounts (other than  amounts paid to the bank holding the Servicer Account (as defined in the Servicing Agreement)),  not in excess of (A) $150,000 per calendar year for the Indenture Trustee (including in its  capacity as Agent), the Securities Intermediary and the Depositary Bank (or, if an Event of  Default has occurred and is continuing, without limit), and (B) $150,000 per calendar year for  the Owner Trustee and the Depositor Receivables Trustee (or, if an Event of Default has  occurred and is continuing, without limit).  “UCC” means, with respect to any jurisdiction, the Uniform Commercial Code as the  same may, from time to time, be enacted and in effect in such jurisdiction.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unused Fee” has the meaning specified in the Fee Letter, as notified by the Issuer to the  Servicer in writing.  “U.S.” or “United States” means the United States of America and its territories.  “VantageScore” means the credit score for an Obligor referred to as a “VantageScore  3.0” calculated and reported by Experian plc.   “WebBank” means WebBank, a Utah state-chartered bank.  “WebBank Agreements” means the WebBank Program Agreement, the WebBank  Receivables Sale Agreement and the WebBank Receivables Purchase Agreement.  “WebBank Program Agreement” means the Amended and Restated Credit Card Program  and Servicing Agreement, dated as of February 5, 2021, between Seller and WebBank as such  agreement may be amended, restated, supplemented or otherwise modified from time to time.  “WebBank Receivables Sale Agreement” means the Receivables Sale Agreement, dated  as of November 5, 2019, between Seller and WebBank as such agreement may be amended,  restated, supplemented or otherwise modified from time to time.  “WebBank Receivables Purchase Agreement” means the Receivables Purchase  Agreement, dated as of December 20, 2021, between Seller and WebBank as such agreement  may be amended, restated, supplemented or otherwise modified from time to time.  33  4131-7075-5128  “written” or “in writing” means any form of written communication, including, without  limitation, by means of e-mail, telex or telecopier device.  Section 1.2.  Incorporation by Reference of Trust Indenture Act.  Whenever this  Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made  a part of this Indenture, except to the extent that the Indenture Trustee has been advised by an  Opinion of Counsel that the Indenture does not need to be qualified under the TIA or such  provision is not required under the TIA to be applied to this Indenture in light of the outstanding  Notes.  The following TIA terms used in this Indenture have the following meanings:  “Commission” means the Securities and Exchange Commission.  “indenture securities” means the Notes.  “indenture security holder” means a Holder.  “indenture to be qualified” means this Indenture.  “indenture trustee” or “institutional trustee” means the Indenture Trustee.  “obligor” on the indenture securities means the Issuer and any other obligor on  the indenture securities.  All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA  reference to another statute or defined by Commission rule have the meaning assigned to them  by such definitions.  Section 1.3.  [Reserved].    Section 1.4.  Accounting and Financial Determinations; No Duplication.  Where the  character or amount of any asset or liability or item of income or expense is required to be  determined, or any accounting computation is required to be made, for the purpose of this  Indenture, such determination or calculation shall be made, to the extent applicable and except as  otherwise specified in this Indenture, in accordance with GAAP.  When used herein, the term  “financial statement” shall include the notes and schedules thereto.  All accounting  determinations and computations hereunder shall be made without duplication.  Section 1.5.  Rules of Construction.  In this Indenture, unless the context otherwise  requires:  (i) “or” is not exclusive;  (ii) the singular includes the plural and vice versa;  (iii) reference to any Person includes such Person’s successors and assigns  but, if applicable, only if such successors and assigns are permitted by this Indenture,  and reference to any Person in a particular capacity only refers to such Person in such  capacity;  34  4131-7075-5128  (iv) reference to any gender includes the other gender;  (v) reference to any Requirement of Law means such Requirement of Law as  amended, modified, codified or reenacted, in whole or in part, and in effect from time to  time;  (vi) “including” (and with correlative meaning “include”) means including  without limiting the generality of any description preceding such term; and  (vii) with respect to the determination of any period of time, “from” means  “from and including” and “to” means “to but excluding.”  Section 1.6.  Other Definitional Provisions.  (a) All terms defined in this Indenture shall have the defined meanings when  used in any certificate or other document made or delivered pursuant hereto unless otherwise  defined therein.  Capitalized terms used but not defined herein shall have the respective  meaning given to such term in (or by reference in) the Servicing Agreement.  (b) The words “hereof,” “herein” and “hereunder” and words of similar  import when used in this Indenture shall refer to this Indenture as a whole and not to any  particular provision of this Indenture; and Article, Section, subsection, Schedule and Exhibit  references contained in this Indenture are references to Articles, Sections, subsections,  Schedules and Exhibits in or to this Indenture unless otherwise specified.  (c) Terms used herein that are defined in the New York Uniform  Commercial Code and not otherwise defined herein shall have the meanings set forth in the  New York Uniform Commercial Code, unless the context requires otherwise.  Any reference  herein to a “beneficial interest” in a security also shall mean, unless the context requires  otherwise, a security entitlement with respect to such security, and any reference herein to a  “beneficial owner” or “beneficial holder” of a security also shall mean, unless the context  requires otherwise, the holder of a security entitlement with respect to such security.  Any  reference herein to money or other property that is to be deposited in or is on deposit in a  securities account shall also mean that such money or other property is to be credited to, or is  credited to, such securities account.  ARTICLE 2.  THE NOTES  Section 2.1.  Designation and Terms of Notes.  The Notes shall be issued in fully  registered form (the “Registered Notes”), and shall be substantially in the form of Exhibit C  attached hereto, with such appropriate insertions, omissions, substitutions and other variations as  are required or permitted by this Indenture and may have such letters, numbers or other marks of  identification and such restrictions, legends or endorsements placed thereon, all as determined by  the Responsible Officers executing such Notes, as evidenced by their execution of the Notes.   Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate  reference thereto on the face of the Note.  35  4131-7075-5128  Section 2.2.  [Reserved].   Section 2.3.  [Reserved].  Section 2.4.  Execution and Authentication.  (a) Each Note shall be executed by manual or facsimile signature by the  Issuer.  Notes bearing the manual or facsimile signature of the individual who was, at the time  when such signature was affixed, authorized to sign on behalf of the Issuer shall not be rendered  invalid, notwithstanding that such individual has ceased to be so authorized prior to the  authentication and delivery of such Notes or does not hold such office at the date of such Notes.   No Notes shall be entitled to any benefit under this Indenture, or be valid for any purpose,  unless there appears on such Note a certificate of authentication substantially in the form  provided for herein, duly executed by or on behalf of the Indenture Trustee by the manual  signature of a duly authorized signatory, and such certificate upon any Note shall be conclusive  evidence, and the only evidence, that such Note has been duly authenticated and delivered  hereunder.  (b) The Issuer shall execute and the Indenture Trustee shall authenticate and  deliver the Notes having the terms specified herein, upon the receipt of an Issuer Order or an  Administrator Order, to the purchasers thereof.    (c) All Notes shall be dated and issued as of the date of their authentication.  Section 2.5.  Authenticating Agent.  (a) The Indenture Trustee may appoint one or more authenticating agents  with respect to the Notes which shall be authorized to act on behalf of the Indenture Trustee in  authenticating the Notes in connection with the issuance, delivery, registration of transfer,  exchange or repayment of the Notes.  Whenever reference is made in this Indenture to the  authentication of Notes by the Indenture Trustee or the Indenture Trustee’s certificate of  authentication, such reference shall be deemed to include authentication on behalf of the  Indenture Trustee by an authenticating agent and a certificate of authentication executed on  behalf of the Indenture Trustee by an authenticating agent.  Each authenticating agent must be  acceptable to the Issuer.  (b) Any institution succeeding to the corporate agency business of an  authenticating agent shall continue to be an authenticating agent without the execution or filing  of any paper or any further act on the part of the Indenture Trustee or such authenticating agent.  (c) An authenticating agent may at any time resign by giving written notice  of resignation to the Indenture Trustee and to the Issuer.  The Indenture Trustee may at any time  terminate the agency of an authenticating agent by giving notice of termination to such  authenticating agent and to the Issuer.  Upon receiving such a notice of resignation or upon such  a termination, or in case at any time an authenticating agent shall cease to be acceptable to the  Indenture Trustee or the Issuer, the Indenture Trustee promptly may appoint a successor  authenticating agent.  Any successor authenticating agent upon acceptance of its appointment  





 






36  4131-7075-5128  hereunder shall become vested with all the rights, powers and duties of its predecessor  hereunder, with like effect as if originally named as an authenticating agent.  (d) The Issuer agrees to pay each authenticating agent from time to time  reasonable compensation for its services under this Section 2.5; subject to the prior written  consent of each Noteholder.  (e) Pursuant to an appointment made under this Section 2.5, the Notes may  have endorsed thereon, in lieu of the Indenture Trustee’s certificate of authentication, an  alternate certificate of authentication in substantially the following form:  This is one of the notes described in the Indenture.  [Name of Authenticating Agent],  as Authenticating Agent  for the Indenture Trustee,  By:                                                           Responsible Officer  Section 2.6.  Registration of Transfer and Exchange of Notes.  (a) (i) The Indenture Trustee shall cause to be kept at the office or agency to  be maintained by a transfer agent and registrar (the “Transfer Agent and Registrar”), in  accordance with the provisions of Section 2.6(c), a register (the “Note Register”) in  which, subject to such reasonable regulations as it may prescribe, the Transfer Agent and  Registrar shall provide for the registration of the Notes and registrations of transfers and  exchanges of the Notes as herein provided.  The Indenture Trustee is hereby initially  appointed Transfer Agent and Registrar for the purposes of registering the Notes and  transfers and exchanges of the Notes as herein provided.  If a Person other than the  Indenture Trustee is appointed by the Issuer as Transfer Agent and Registrar, the Issuer  will give the Indenture Trustee and the Noteholders prompt written notice of the  appointment of such Transfer Agent and Registrar and of the location, and any change in  the location, of the Note Register, and the Indenture Trustee shall have the right to  inspect the Note Register at all reasonable times and to obtain copies thereof, and the  Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the  Transfer Agent and Registrar by a Responsible Officer thereof as to the names and  addresses of the Holders of the Notes and the principal amounts and number of such  Notes.  The Indenture Trustee shall be permitted to resign as Transfer Agent and  Registrar upon thirty (30) days’ written notice to the Servicer, the Noteholders and the  Issuer.  In the event that the Indenture Trustee shall no longer be the Transfer Agent and  Registrar, the Issuer shall appoint a successor Transfer Agent and Registrar, with notice  thereof to the Noteholders.  (ii) Upon surrender for registration of transfer of any Note at any office or  agency of the Transfer Agent and Registrar, if the requirements of Section 8-401(a) of  the UCC are met, the Issuer shall execute, subject to the provisions of Section 2.6(b),  37  4131-7075-5128  and the Indenture Trustee shall authenticate and (unless the Transfer Agent and  Registrar is different than the Indenture Trustee, in which case the Transfer Agent and  Registrar shall) deliver and the Noteholder shall obtain from the Indenture Trustee, in  the name of the designated transferee or transferees, one or more new Notes in  authorized denominations of like aggregate principal amount.  (iii) All Notes issued upon any registration of transfer or exchange of Notes  shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the  same benefits under this Indenture, as the Notes surrendered upon such registration of  transfer or exchange.  (iv) At the option of any Holder of Registered Notes, Registered Notes may  be exchanged for other Registered Notes in authorized denominations of like aggregate  principal amounts in the manner specified herein, upon surrender of the Registered  Notes to be exchanged at any office or agency of the Transfer Agent and Registrar  maintained for such purpose.  (v) Whenever any Notes are so surrendered for exchange, if the requirements  of Section 8-401(a) of the UCC are met, the Issuer shall execute and the Indenture  Trustee shall authenticate and (unless the Transfer Agent and Registrar is different than  the Indenture Trustee, in which case the Transfer Agent and Registrar shall) deliver and  the Noteholders shall obtain from the Indenture Trustee, the Notes that the Noteholder  making the exchange is entitled to receive.  Every Note presented or surrendered for  registration of transfer or exchange shall be accompanied by a written instrument of  transfer in a form satisfactory to the Issuer duly executed by the Noteholder thereof or  its attorney-in-fact duly authorized in writing.  (vi) The preceding provisions of this Section 2.6 notwithstanding, the  Indenture Trustee or the Transfer Agent and Registrar, as the case may be, shall not be  required to register the transfer of or exchange any Note for a period of five (5) Business  Days preceding the due date for any payment with respect to the Notes or during the  period beginning on any Record Date and ending on the next following Payment Date.  (vii) No service charge shall be made for any registration of transfer or  exchange of Notes, but the Transfer Agent and 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 Notes.  (viii) All Notes surrendered for registration of transfer and exchange shall be  cancelled by the Transfer Agent and Registrar and disposed of.    (ix) Upon written request, the Issuer shall deliver to the Indenture Trustee or  the Transfer Agent and Registrar, as applicable, Registered Notes in such amounts and  at such times as are necessary to enable the Indenture Trustee to fulfill its  responsibilities under this Indenture and the Notes.  (x) [Reserved].  38  4131-7075-5128  (xi) Notwithstanding anything to the contrary set forth in this Indenture, no  sale or transfer of a beneficial interest in a Class A Note shall be permitted (including,  without limitation, by participation, pledge or hypothecation) or effective (and shall be  void ab initio) if the sale or transfer thereof (i) increases the total number of beneficial  owners of the Class A Notes to more than ninety-five (95), or (ii) would be to a Person  that is not a United States person as defined in Section 7701(a)(30) of the Code.  For  purposes of determining the total number of beneficial owners of Class A Notes, a  beneficial owner of an interest in a partnership, grantor trust, S corporation or other  flow-through entity that owns, directly or through other flow-through entities, a  beneficial interest in a Class A Note is treated as a holder of a beneficial interest in a  Class A Note if more than 50% of the value of the beneficial owner's interest (directly or  indirectly) in the flow-through entity is attributable to the flow-through entity's interest  in all Class A Notes.  Unless the Issuer, the Transfer Agent and the Registrar receive a  written certification of the number of beneficial owners of any Holder or transferee of  Class A Notes, by its acceptance of a Note, each Noteholder and each transferee of a  Class A Note shall be deemed to have represented and warranted that it represents one  (1) beneficial owner, as determined by the foregoing provisions of this Section  2.6(a)(xi). By its acceptance of a Note, each Noteholder and each transferee of a Class A  Note shall be deemed to have represented and warranted that it (and each of its  beneficial owners) is a United States person as defined in Section 7701(a)(30) of the  Code.  (xii) By its acceptance of a Note, each Noteholder shall be deemed to have  represented and warranted that, with respect to the Notes, either (i) it is not a Benefit  Plan Investor or a governmental or other plan subject to Similar Law, or (ii) (a) the  purchase and holding of the Note (or any interest therein) will not give rise to a non- exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code  or a violation of Similar Law and (b) it acknowledges and agrees that the Notes, as  applicable, are not eligible for acquisition by Benefit Plan Investors or governmental or  other plans subject to Similar Law at any time that the Notes have been characterized as  other than indebtedness for applicable local law purposes.    (b) Registration of transfer of Registered Notes containing a legend relating  to the restrictions on transfer of such Registered Notes (which legend is set forth in Section  2.9(b) of this Indenture relating to such Notes) shall be effected only if the conditions set forth  in Section 2.6 have been satisfied.  (c) The Transfer Agent and Registrar will maintain an office or offices or an  agency or agencies where Notes may be surrendered for registration of transfer or exchange.  Section 2.7.  Appointment of Paying Agent.    (a) The Paying Agent shall make payments to the Secured Parties from the  appropriate account or accounts maintained for the benefit of the Secured Parties as specified in  this Indenture pursuant to Articles 5 and 6.  Any Paying Agent shall have the revocable power  to withdraw funds from such appropriate account or accounts for the purpose of making  distributions referred to above.  The Indenture Trustee (or the Issuer or the Servicer if the  39  4131-7075-5128  Indenture Trustee is the Paying Agent) may revoke such power and remove the Paying Agent, if  the Paying Agent fails to perform its obligations under this Indenture in any material respect or  for other good cause.  The Paying Agent shall initially be the Indenture Trustee.  The Indenture  Trustee shall be permitted to resign as Paying Agent upon thirty (30) days’ written notice to the  Issuer and the Noteholders, with a copy to the Servicer; provided, however, that no such  resignation by the Indenture Trustee shall be effective until a successor Paying Agent has  assumed the obligations of the Paying Agent hereunder.  In the event that the Indenture Trustee  shall no longer be the Paying Agent, the Issuer or the Servicer shall appoint a successor to act as  Paying Agent (which shall be a bank or trust company).  If a successor Paying Agent does not  take office within thirty (30) days after the retiring Paying Agent provides written notice of its  resignation or is removed, the retiring Paying Agent may petition any court of competent  jurisdiction for the appointment of a successor paying agent.  (b) The Issuer shall cause each Paying Agent (other than the Indenture  Trustee) to execute and deliver to the Indenture Trustee an instrument in which such Paying  Agent shall agree with the Indenture Trustee that such Paying Agent will hold all sums, if any,  held by it for payment to the Secured Parties in trust for the benefit of the Secured Parties  entitled thereto until such sums shall be paid to such Secured Parties and shall agree, and if the  Indenture Trustee is the Paying Agent it hereby agrees, that it shall comply with all  requirements of the Code regarding the withholding of payments in respect of federal income  taxes due from Noteholders or other Secured Parties (including in respect of FATCA and any  applicable tax reporting requirements).  Section 2.8.  Paying Agent to Hold Money in Trust.  (a) The Issuer will cause each Paying Agent other than the Indenture Trustee  to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall  agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so  agrees), subject to the provisions of this Section, that such Paying Agent will:  (i) hold all sums held by it for the payment of amounts due with respect to  the Secured Obligations in trust for the benefit of the Persons entitled thereto until such  sums shall be paid to such Persons or otherwise disposed of as provided herein and pay  such sums to such Persons as provided herein;  (ii) give the Indenture Trustee and the Noteholders written notice of any  default by the Issuer (or any other obligor under the Secured Obligations) of which it  (or, in the case of the Indenture Trustee, a Trust Officer) has actual knowledge in the  making of any payment required to be made with respect to the Notes;  (iii) at any time during the continuance of any such default, upon the written  request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held  in trust by such Paying Agent;  (iv) immediately resign as a Paying Agent and forthwith pay to the Indenture  Trustee all sums held by it in trust for the payment of the Secured Obligations if at any  





 






40  4131-7075-5128  time it ceases to meet the standards required to be met by an Indenture Trustee  hereunder; and  (v) comply with all requirements of the Code with respect to the withholding  from any payments made by it on any Secured Obligations of any applicable  withholding taxes imposed thereon, including FATCA Withholding Tax (including  obtaining and retaining from Persons entitled to payments with respect to the Notes any  Tax Information and making any withholdings with respect to the Notes as required by  the Code (including FATCA) and paying over such withheld amounts to the appropriate  Governmental Authority), comply with respect to any applicable reporting requirements  in connection with any payments made by it on any Secured Obligations and any  withholding of taxes therefrom, and, upon request, provide any Tax Information to the  Issuer.  (b) The Issuer may at any time, for the purpose of obtaining the satisfaction  and discharge of this Indenture or for any other purpose, cause to be delivered an Issuer Order  or an Administrator Order directing any Paying Agent to pay to the Indenture Trustee all sums  held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the  same trusts as those upon which the sums were held by such Paying Agent; and upon such  payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released  from all further liability with respect to such money.  (c) Subject to applicable Laws with respect to escheat of funds, any money  held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due  with respect to any Secured Obligation and remaining unclaimed for two years after such  amount has become due and payable shall be discharged from such trust and be paid to the  Issuer on Issuer Order or Administrator Order; and the holder of such Secured Obligation shall  thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but  only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee,  such Paying Agent with respect to such trust money shall thereupon cease; provided, however,  that the Indenture Trustee or such Paying Agent, before being required to make any such  repayment, may at the expense of the Issuer cause to be published once, in a newspaper  published in the English language, customarily published on each Business Day and of general  circulation in New York City, notice that such money remains unclaimed and that, after a date  specified therein, which shall not be less than thirty (30) days from the date of such publication,  any unclaimed balance of such money then remaining will be repaid to the Issuer.  The  Indenture Trustee may also adopt and employ, at the expense of the Issuer, any other reasonable  means of notification of such repayment.  Section 2.9.  Private Placement.    (a) The Notes shall be offered and sold only to Persons who are (1)  institutional accredited investors within the meaning of Regulation D under the Securities Act in  reliance on an exemption from the registration requirements of the Securities Act and (2)  qualified institutional buyers as defined in Rule 144A under the Securities Act (“Rule 144A”).  (b) Each Note shall bear a legend in substantially the following form:  41  4131-7075-5128  THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER  THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES  ACT”), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION.   THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR TRANSFERRED  ONLY TO A PERSON THAT IS A QUALIFIED INSTITUTIONAL BUYER  (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE  144A”)) IN TRANSACTIONS MEETING THE REQUIREMENTS OF RULE  144A, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE  SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY  OTHER APPLICABLE JURISDICTION, SUBJECT TO ANY REQUIREMENT  OF LAW THAT THE DISPOSITION OF THE SELLER’S PROPERTY OR  THE PROPERTY OF AN INVESTMENT ACCOUNT OR ACCOUNTS BE AT  ALL TIMES WITHIN THE SELLER’S OR ACCOUNT’S CONTROL.  THE  HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,  NOTIFY ANY TRANSFEREE FROM IT OF THE RESALE RESTRICTIONS  SET FORTH ABOVE.  BY ACQUIRING THIS NOTE (OR ANY INTEREST HEREIN), EACH  PURCHASER OR TRANSFEREE (AND ANY FIDUCIARY ACTING ON  BEHALF OF A PURCHASER OR TRANSFEREE) SHALL BE DEEMED TO  REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT AN  “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE  EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS  AMENDED (“ERISA”), WHICH IS SUBJECT TO TITLE I OF ERISA, A  “PLAN” AS DESCRIBED IN SECTION 4975 OF THE INTERNAL REVENUE  CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO  SECTION 4975 OF THE CODE, AN ENTITY DEEMED TO HOLD PLAN  ASSETS OF ANY OF THE FOREGOING (EACH OF THE FOREGOING, A  “BENEFIT PLAN INVESTOR”), OR A GOVERNMENTAL OR OTHER PLAN  SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR  TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR  LAW”) OR (II) (A) ITS PURCHASE AND HOLDING OF THIS NOTE (OR  ANY INTEREST HEREIN) WILL NOT RESULT IN A NON-EXEMPT  PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR  SECTION 4975 OF THE CODE, OR A VIOLATION OF SIMILAR LAW, AND  (B) IT ACKNOWLEDGES AND AGREES THAT THIS NOTE IS NOT  ELIGIBLE FOR ACQUISITION BY BENEFIT PLAN INVESTORS OR  GOVERNMENTAL OR OTHER PLANS SUBJECT TO SIMILAR LAW AT  ANY TIME THAT THIS NOTE HAS BEEN CHARACTERIZED AS OTHER  THAN INDEBTEDNESS FOR APPLICABLE LOCAL LAW PURPOSES.  Section 2.10.  Mutilated, Destroyed, Lost or Stolen Notes.  (a) If (i) any mutilated Note is surrendered to the Transfer Agent and  Registrar, or the Transfer Agent and Registrar receives evidence to its satisfaction of the  destruction, loss or theft of any Note, and (ii) there is delivered to the Transfer Agent and  Registrar, the Indenture Trustee, and the Issuer such security or indemnity as may, in their sole  42  4131-7075-5128  discretion, be required by them to hold the Transfer Agent and Registrar, the Indenture Trustee,  and the Issuer harmless then, in the absence of written notice to the Indenture Trustee that such  Note has been acquired by a protected purchaser, and provided that the requirements of  Section 8-405 of the UCC (which generally permit the Issuer to impose reasonable  requirements) are met, then the Issuer shall execute and the Indenture Trustee shall, upon  receipt of an Issuer Order or an Administrator Order, authenticate and (unless the Transfer  Agent and Registrar is different from the Indenture Trustee, in which case the Transfer Agent  and Registrar shall) deliver (in compliance with applicable Law), in exchange for or in lieu of  any such mutilated, destroyed, lost or stolen Note, a replacement Note of like tenor and  aggregate principal balance; provided, however, that if any such destroyed, lost or stolen Note,  but not a mutilated Note, shall have become or within seven (7) days shall be due and payable  or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may  pay such destroyed, lost or stolen Note when so due or payable without surrender thereof.  If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen  Note pursuant to the proviso to the preceding sentence, a protected purchaser of the original Note  in lieu of which such replacement Note was issued presents for payment such original Note, the  Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such  payment) from the Person to whom it was delivered or any Person taking such replacement Note  from such Person to whom such replacement Note was delivered or any assignee of such Person,  except a protected purchaser, and shall be entitled to recover upon the security or indemnity  provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the  Indenture Trustee in connection therewith.  (b) Upon the issuance of any replacement Note under this Section 2.10, the  Transfer Agent and Registrar or the Indenture Trustee may require the payment by the Holder of  such Note of a sum sufficient to cover any tax or other governmental charge that may be  imposed in relation thereto and any other reasonable expenses (including the fees and expenses  of the Indenture Trustee and the Transfer Agent and Registrar) connected therewith.  (c) Every replacement Note issued pursuant to this Section 2.10 in  replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original  additional obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note  shall be at any time enforceable by anyone and shall be entitled to all the benefits of this  Indenture equally and proportionately with any and all other Notes duly issued hereunder.  (d) The provisions of this Section 2.10 are exclusive and shall preclude (to  the extent lawful) all other rights and remedies with respect to the replacement or payment of  mutilated, destroyed, lost or stolen Notes.  Section 2.11.  [Reserved].  Section 2.12.  Persons Deemed Owners.  Prior to due presentation of a Note for  registration of transfer, the Issuer, the Servicer, the Indenture Trustee, the Paying Agent, the  Transfer Agent and Registrar and any agent of any of them may treat a Person in whose name  any Note is registered (as of any date of determination) as the owner of the related Note for the  purpose of receiving payments of principal and interest, if any, on such Note and for all other  43  4131-7075-5128  purposes whatsoever whether or not such Note be overdue, and neither the Issuer, the Servicer,  the Indenture Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any  of them shall be affected by any notice to the contrary; provided, however, that in determining  whether the requisite number of Holders of Notes have given any request, demand, authorization,  direction, notice, consent or waiver hereunder, Notes owned by any of the Issuer, the Seller, the  Parent, the initial Servicer or any Affiliate controlled by or controlling Oportun shall be  disregarded and deemed not to be outstanding, except that, in determining whether the Indenture  Trustee shall be protected in relying upon any such request, demand, authorization, direction,  notice, consent or waiver, only Notes which a Trust Officer in the Corporate Trust Office of the  Indenture Trustee actually knows to be so owned shall be so disregarded.  The foregoing proviso  shall not apply if there are no Holders other than the Issuer or its Affiliates.  Section 2.13.  Cancellation.  All Notes surrendered for payment, registration of  transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture  Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture  Trustee.  The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes  previously authenticated and delivered hereunder which the Issuer may have acquired in any  manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture  Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as  provided in this Section, except as expressly permitted by this Indenture.  All cancelled Notes  may be held or disposed of by the Indenture Trustee in accordance with its standard retention or  disposal policy as in effect at the time unless the Administrator shall direct by an Administrator  Order that they be destroyed or returned to the Issuer; provided that such Administrator Order is  timely and the Notes have not been previously disposed of by the Indenture Trustee.  The  Registrar and Paying Agent shall forward to the Indenture Trustee any Notes surrendered to them  for registration of transfer, exchange or payment.  Section 2.14.  Release of Trust Estate.  The Indenture Trustee shall (a) in connection  with any removal of Removed Accounts from the Trust Estate, release the portion of the Trust  Estate constituting or securing the related Receivables from the Lien created by this Indenture  upon receipt of an Officer’s Certificate of the Administrator certifying that the Outstanding  Receivables Balance (or such other amount required in connection with the disposition of such  Removed Receivables as provided by the Transaction Documents) with respect thereto has been  deposited into the Collection Account, if required, and such release is authorized and permitted  under the Transaction Documents, and (b) on or after the Indenture Termination Date, release  any remaining portion of the Trust Estate from the Lien created by this Indenture and in each  case deposit in the Collection Account any funds then on deposit in the Reserve Account or any  other Trust Account upon receipt of an Issuer Order or an Administrator Order accompanied by  an Officer’s Certificate of the Administrator, and Independent Certificates (if this Indenture is  required to be qualified under the TIA) in accordance with TIA Sections 314(c) and 314(d)(1)  meeting the applicable requirements of Section 15.1.    Section 2.15.  Payment of Principal, Interest and Other Amounts.  (a) The principal of each of the Notes shall be payable at the times and in the  amounts set forth in Section 5.15 and in accordance with Section 8.1.  





 






44  4131-7075-5128  (b) Each of the Notes shall accrue interest as provided in Section 5.12 and  such interest shall be payable at the times and in the amounts set forth in Section 5.12 and in  accordance with Section 8.1.    (c) Any installment of interest, principal or other amounts, if any, payable on  any Note which is punctually paid or duly provided for by the Issuer on the applicable Payment  Date shall be paid to the Person in whose name such Note is registered at the close of business  on any Record Date with respect to a Payment Date for such Note and such Person shall be  entitled to receive the principal, interest or other amounts payable on such Payment Date  notwithstanding the cancellation of such Note upon any registration of transfer, exchange or  substitution of such Note subsequent to such Record Date, by wire transfer in immediately  available funds to the account designated by the Holder of such Note, except for the final  installment of principal payable with respect to such Note on a Payment Date or on the Legal  Final Payment Date which shall be payable as provided herein; except that, any interest payable  at maturity shall be paid to the Person to whom the principal of such Note is payable.  The funds  represented by any such checks returned undelivered shall be held in accordance with  Section 2.8.  Section 2.16.  [Reserved].    Section 2.17.  [Reserved].    Section 2.18.  Definitive Notes.  (a) Issuance of Definitive Notes.  The Notes shall be issued in definitive,  fully registered form (“Definitive Notes”).    (b) Transfer of Definitive Notes.  Subject to the terms of this Indenture, the  holder of any Definitive Note may transfer the same in whole or in part, in an amount  equivalent to an authorized denomination, by surrendering at the Corporate Trust Office, such  Note with the form of transfer endorsed on it duly completed and executed by, or accompanied  by a written instrument of transfer in form satisfactory to the Issuer and the Transfer Agent and  Registrar by, the holder thereof.  In exchange for any Definitive Note properly presented for  transfer, the Issuer shall execute and the Indenture Trustee shall promptly authenticate and  deliver or cause to be executed, authenticated and delivered in compliance with applicable Law,  to the transferee at such office, or send by mail (at the risk of the transferee) to such address as  the transferee may request, Definitive Notes for the same aggregate principal amount as was  transferred.  In the case of the transfer of any Definitive Note in part, the Issuer shall execute  and the Indenture Trustee shall promptly authenticate and deliver or cause to be authenticated  and delivered to the transferor at such office, or send by mail (at the risk of the transferor) to  such address as the transferor may request, Definitive Notes for the aggregate principal amount  that was not transferred.  No transfer of any Definitive Note shall be made unless the request for  such transfer is made by the Holder at such office.  Neither the Issuer nor the Indenture Trustee  shall be liable for any delay in delivery of transfer instructions and each may conclusively rely  on, and shall be protected in relying on, such instructions.    Section 2.19.  [Reserved].    45  4131-7075-5128  Section 2.20.  Tax Treatment.  The Notes have been (or will be) issued with the  intention that, the Notes will qualify under applicable tax Law as debt for U.S. federal income  tax purposes and any entity acquiring any direct or indirect interest in any Note by acceptance of  its Notes agrees to treat the Notes for purposes of federal, state and local income and franchise  taxes and any other tax imposed on or measured by income, as debt.  Each Noteholder agrees  that it will cause any Noteholder acquiring an interest in a Note through it to comply with this  Indenture as to treatment as debt for such tax purposes.  Notwithstanding the foregoing, to the  extent the Issuer is treated as a partnership for federal, state or local income or franchise  purposes and a Noteholder is treated as a partner in such partnership, the Noteholders agree that  any tax, penalty, interest or other obligation imposed under the Code with respect to the income  tax items arising from such partnership shall be the sole obligation of the Noteholder to whom  such items are allocated and not of such partnership.   Section 2.21.  Duties of the Indenture Trustee and the Transfer Agent and Registrar.   Notwithstanding anything contained herein to the contrary, neither the Indenture Trustee nor the  Transfer Agent and Registrar shall be responsible for ascertaining whether any transfer of a Note  complies with the terms of this Indenture, the registration provision of or exemptions from the  Securities Act, applicable state securities Laws, ERISA or the Investment Company Act;  provided that if a transfer certificate or opinion is specifically required by the express terms of  this Indenture to be delivered to the Indenture Trustee or the Transfer Agent and Registrar in  connection with a transfer, the Indenture Trustee or the Transfer Agent and Registrar, as the case  may be, shall be under a duty to receive the same.  ARTICLE 3.  ISSUANCE OF NOTES; CERTAIN FEES AND EXPENSES  Section 3.1.  Initial Issuance; Procedure for Increases.  (a) Subject to satisfaction of the conditions precedent set forth in subsection  (b) of this Section 3.1, on the Closing Date, the Issuer will issue the Class A Notes in  accordance with Section 2.18 hereof in an aggregate initial principal amount of $41,000,000.00.  The Notes will be issued on the Closing Date pursuant to this subsection (a) only upon  satisfaction of each of the following conditions with respect to such initial issuance:  (i) Such issuance and the application of the proceeds thereof shall not result  in the occurrence of a Servicer Default, a Rapid Amortization Event, an Event of Default  or a Default;   (ii) The representations and warranties of the Issuer, the Depositor, the initial  Servicer and the Seller set forth in this Indenture and the other Transaction Documents  are true and correct as of the Closing Date (except to the extent they relate to an earlier  or later date, and then as of such earlier or later date);   (iii) All required consents have been obtained and all other conditions  precedent to the purchase of the Notes under the Note Purchase Agreement shall have  been satisfied;  46  4131-7075-5128  (iv) A certification (in form and substance satisfactory to the Required  Noteholders) from the initial Servicer that no Borrowing Base Shortfall shall exist (after  giving effect to such issuance); and  (v) The proceeds of such Issuance shall be used solely in connection with the  acquisition of Receivables and other Permissible Uses.  (b) Subject to the procedures set forth in Section 2.3 of the Note Purchase  Agreement, on any Business Day during the Revolving Period (but no more than two (2) times  during any calendar week), the Issuer may increase the Aggregate Class A Note Principal upon  one (1) Business Day’s prior notice to the Indenture Trustee, the Transfer Agent and Registrar,  the Servicer and the Noteholders (each such increase referred to as an “Increase”).  Upon each  Increase, the Transfer Agent and Registrar shall indicate in the Note Register such Increase.  Any such Increase will be effective only upon satisfaction of each of the following conditions:  (i) the amount of each such Increase shall be equal to or greater than  $1,000,000 (and in integral multiples of $10,000 in excess thereof);  (ii) after giving effect to such Increase, the Aggregate Class A Note Principal  shall not exceed the Class A Maximum Principal Amount;  (iii) such Increase and the application of the proceeds thereof shall not result  in the occurrence of a Rapid Amortization Event, a Servicer Default, an Event of Default  or a Default;  (iv) a certification (in form and substance satisfactory to the Required  Noteholders) from the Servicer that no Borrowing Base Shortfall shall exist (after giving  effect to such Increase);  (v) a certification of the Servicer (in form and substance satisfactory to the  Indenture Trustee and the Required Noteholders) to the Indenture Trustee that all  conditions precedent for Increases under the Transaction Documents have been satisfied  and that such Increase is authorized and permitted under the Transaction Documents;  and  (vi) the representations and warranties of the Issuer, the Depositor, the  Servicer and the Seller set forth in this Indenture and the other Transaction Documents  are true and correct as of the date of such Increase (except to the extent they relate to an  earlier or later date, and then as of such earlier or later date); and  (vii) all conditions set forth in Section 4.2 of the Note Purchase Agreement  shall have been satisfied at such time   (viii) all required consents, if any, have been obtained and all other conditions  precedent for Increases under the Note Purchase Agreement have been satisfied.  47  4131-7075-5128  (c) Upon receipt of the proceeds of each such Increase by or on behalf of the  Issuer, the Indenture Trustee shall, or shall cause the Transfer Agent and Registrar to, indicate  in the Note Register the amount thereof.  Section 3.2.  Procedure for Decreases.  On any Business Day (other than a Business  Day between any Determination Date and the related Payment Date), the Issuer may upon  written notice to the Indenture Trustee, the Servicer, any successor Servicer and the  Noteholders (in accordance with the terms of the Note Purchase Agreement) deposit or  cause to be deposited into the Collection Account amounts otherwise payable to the Issuer  or other amounts so designated and distribute to the Class A Noteholders in respect of  principal on the Class A Notes on the next Payment Date (in accordance with the priorities  set forth in Section 5.15), an amount equal to the amount of such Decrease; provided, that,  no Decrease shall reduce the Aggregate Class A Note Principal to less than $2,500,000  unless the Aggregate Class A Note Principal is reduced to zero. Each such Decrease shall be  on a pro rata basis for all Class A Notes and shall be in a minimum principal amount of  $1,000,000 (and in integral multiples of $10,000 in excess thereof), unless such Decrease  reduces the Aggregate Class A Note Principal to zero. Upon such Decrease, the Servicer  shall reflect such Decrease in the Monthly Servicer Report.  Section 3.3.  Certain Fees and Expenses.  The Trustee Fees and Expenses (and, in  the case of the initial Servicer, the Servicing Fee) and other fees, expenses and indemnity  amounts owed to the Indenture Trustee, Securities Intermediary, Depositary Bank, the  Certificate Registrar, Owner Trustee, Depositor Receivables Trustee, the Servicer and any  successor Servicer shall be paid by the cash flows from the Trust Estate and in no event  shall the Indenture Trustee be liable therefor.  The foregoing amounts shall be payable to the  Indenture Trustee, Securities Intermediary, Depositary Bank, the Certificate Registrar,  Owner Trustee, Depositor Receivables Trustee, the Servicer and any successor Servicer, as  applicable, solely to the extent amounts are available for distribution in respect thereof  pursuant to subsections 5.15(a)(i), (a)(ii) and (a)(vii), as applicable.  ARTICLE 4.  NOTEHOLDER LISTS AND REPORTS  Section 4.1.  Issuer To Furnish To Indenture Trustee Names and Addresses of  Noteholders and Certificateholders.  The Issuer will furnish or cause the Transfer Agent and  Registrar or the Certificate Registrar, as applicable, to furnish to the Indenture Trustee (a) not  more than five (5) days after each Record Date a list, in such form as the Indenture Trustee may  reasonably require, of the names and addresses of the Noteholders and Certificateholders as of  such Record Date, (b) at such other times as the Indenture Trustee may request in writing, within  thirty (30) days after receipt by the Issuer of any such request, a list of similar form and content  as of a date not more than ten (10) days prior to the time such list is furnished; provided,  however, that so long as the Indenture Trustee (or the entity serving as Indenture Trustee) is the  Transfer Agent and Registrar and the Certificate Registrar, no such list shall be required to be  furnished.  The Issuer will furnish or cause to be furnished by the Transfer Agent and Registrar  and the Certificate Registrar to the Paying Agent (if not the Indenture Trustee) such list for  payment of distributions to Noteholders and Certificateholders.  





 






48  4131-7075-5128  Section 4.2.  Preservation of Information; Communications to Noteholders and  Certificateholders.  (a) The Indenture Trustee shall preserve, in as current a form as is reasonably  practicable, the names and addresses of the Noteholders and Certificateholders contained in the  most recent list furnished to the Indenture Trustee as provided in Section 4.1 and the names and  addresses of Noteholders and Certificateholders received by the Indenture Trustee in its  capacity as Transfer Agent and Registrar.  The Indenture Trustee may destroy any list furnished  to it as provided in such Section 4.1 upon receipt of a new list so furnished.  (b) Noteholders and Certificateholders may communicate (including  pursuant to TIA Section 312(b) (if this Indenture is required to be qualified under the TIA))  with other Noteholders and Certificateholders with respect to their rights under this Indenture or  under the Notes.  If holders of Notes evidencing in aggregate not less than (i) 20% of the  outstanding principal balance of the Notes or (ii) a percentage interest in the Certificates of at  least 15% (the “Applicants”) apply in writing to the Indenture Trustee, and furnish to the  Indenture Trustee reasonable proof that each such Applicant has owned a Note for a period of at  least 6 months preceding the date of such application, and if such application states that the  Applicants desire to communicate with other Noteholders or Certificateholders with respect to  their rights under this Indenture or under the Notes and is accompanied by a copy of the  communication which such Applicants propose to transmit, then the Indenture Trustee, after  having been indemnified by such Applicants for its costs and expenses, shall within five (5)  Business Days after the receipt of such application afford or shall cause the Transfer Agent and  Registrar to afford such Applicants access during normal business hours to the most recent list  of Noteholders and Certificateholders held by the Indenture Trustee and shall give the Issuer  notice that such request has been made within five (5) Business Days after the receipt of such  application.  Such list shall be as of the most recent Record Date, but in no event more than  forty-five (45) days prior to the date of receipt of such Applicants’ request.  (c) The Issuer, the Indenture Trustee and the Transfer Agent and Registrar  shall have the protection of TIA Section 312(c) (if this Indenture is required to be qualified  under the TIA).  Every Noteholder and Certificateholder, by receiving and holding a Note,  agrees with the Issuer and the Indenture Trustee that neither the Issuer, the Indenture Trustee,  the Transfer Agent and Registrar, nor any of their respective agents shall be held accountable by  reason of the disclosure of any such information as to the names and addresses of the  Noteholders and Certificateholders in accordance with this Section 4.2, regardless of the source  from which such information was obtained.  Section 4.3.  Reports by Issuer.   (a) (i) The Issuer or the Servicer shall deliver to the Indenture Trustee and  the Noteholders, on the date, if any, the Issuer is required to file the same with the Commission,  hard and electronic copies of the annual reports and of the information, documents and other  reports (or copies of such portions of any of the foregoing as the Commission may from time to  time by rules and regulations prescribe) which the Issuer is required to file with the Commission  pursuant to Section 13 or 15(d) of the Exchange Act;  49  4131-7075-5128  (ii) the Issuer or the Servicer shall file with the Indenture Trustee and the  Commission in accordance with rules and regulations prescribed from time to time by  the Commission such additional information, documents and reports, if any, with respect  to compliance by the Issuer with the conditions and covenants of this Indenture as may  be required from time to time by such rules and regulations;  (iii) the Issuer or the Servicer shall supply to the Indenture Trustee and the  Noteholders (and the Indenture Trustee shall transmit by mail or make available on via a  website to all Noteholders and Certificateholders) such summaries of any information,  documents and reports required to be filed by the Issuer (if any) pursuant to clauses (i)  and (ii) of this Section 4.3(a) as may be required by rules and regulations prescribed  from time to time by the Commission; and  (iv) the Servicer shall prepare and distribute any other reports required to be  prepared by the Servicer  under any Servicer Transaction Documents.  (b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall  end on December 31 of each year.  Section 4.4.  Reports by Indenture Trustee.  If this Indenture is required to be  qualified under the TIA, within sixty (60) days after each April 1, beginning with April 1, 2022  the Indenture Trustee shall mail to each Noteholder as required by TIA Section 313(c) a brief  report dated as of such date that complies with TIA Section 313(a).  If this Indenture is required  to be qualified under the TIA, the Indenture Trustee also shall comply with TIA Section 313(b).  A copy of each report at the time of its mailing to Noteholders and Certificateholders  shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on  which the Notes are listed. The Issuer shall notify the Indenture Trustee if and when the Notes  are listed on any stock exchange.  Section 4.5.  Reports and Records for the Indenture Trustee and Instructions.  (a) On each Determination Date the Servicer shall forward to the Indenture  Trustee and the Noteholders a Monthly Servicer Report prepared by the Servicer.  (b) On each Payment Date, the Indenture Trustee or the Paying Agent shall  make available in the same manner as the Monthly Servicer Report to each Noteholder and  Certificateholder of record of the outstanding Notes or Certificates, the Monthly Statement with  respect to such Notes or Certificates prepared by the Servicer.  ARTICLE 5.  ALLOCATION AND APPLICATION OF COLLECTIONS  Section 5.1.  Rights of Noteholders .  The Notes shall be secured by the entire Trust  Estate, including the right to receive the Collections and other amounts at the times and in the  amounts specified in this Article 5 to be deposited in the Trust Accounts or to be paid to the  Noteholders of such Notes.  In no event shall the grant of a security interest in the entire Trust  50  4131-7075-5128  Estate be deemed to entitle any Noteholder to receive Collections or other proceeds of the Trust  Estate in excess of the amounts described in Article 5.  Section 5.2.  Collection of Money.  Except as otherwise expressly provided herein,  the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly  and without intervention or assistance of any fiscal agent or other intermediary, all money and  other property payable to or receivable by the Indenture Trustee pursuant to this Indenture.  The  Indenture Trustee shall apply all such money received by it as provided in this Indenture.  Except  as otherwise expressly provided in this Indenture, if any default occurs in the making of any  payment or performance under any agreement or instrument that is part of the Trust Estate, the  Indenture Trustee may, but shall not be obligated to, take such action as may be appropriate to  enforce such payment or performance, including the institution and prosecution of appropriate  Proceedings.  Any such action shall be without prejudice to any right to claim a Default or Event  of Default under this Indenture and any right to proceed thereafter as provided in Article 9.  Section 5.3.  Establishment of Accounts.  (a) The Collection Account.  The Indenture Trustee, for the benefit of the  Secured Parties, shall establish and maintain with a Qualified Institution, in the name of the  Issuer for the benefit of the Indenture Trustee on behalf of the Secured Parties, a non-interest  bearing segregated trust account (the “Collection Account”) bearing a designation clearly  indicating that the funds deposited therein are held in trust for the benefit of the Secured Parties.   Pursuant to authority granted to it pursuant to Section 2.4 of the Servicing Agreement, the  Servicer shall have the revocable power to withdraw funds from the Collection Account for the  purposes of carrying out its duties thereunder.  The Indenture Trustee shall be the entitlement  holder of the Collection Account, and shall possess all right, title and interest in all moneys,  instruments, securities and other property on deposit from time to time in the Collection  Account and the proceeds thereof for the benefit of the Secured Parties.  Initially, the Collection  Account will be established with the Securities Intermediary.  Funds on deposit in the  Collection Account that are not both deposited and to be withdrawn on the same day shall be  invested in Permitted Investments, in accordance with a direction from the Issuer pursuant to  Section 5.3(e).  (b) The Reserve Account.  The Indenture Trustee, for the benefit of the  Secured Parties, shall establish and maintain with a Qualified Institution, in the name of the  Issuer on behalf of the Indenture Trustee for the benefit of the Secured Parties, a non-interest  bearing segregated trust account (the “Reserve Account”) bearing a designation clearly  indicating that the funds deposited therein are held in trust for the benefit of the Secured Parties.  The Indenture Trustee shall be the entitlement holder of the Reserve Account, and shall possess  all right, title and interest in all moneys, instruments, securities and other property on deposit  from time to time in the Reserve Account and the proceeds thereof for the benefit of the Secured  Parties. Initially, the Reserve Account will be established with the Securities Intermediary.  Funds on deposit in the Reserve Account that are not both deposited and to be withdrawn on the  same day shall be invested in Permitted Investments, in accordance with a direction from the  Issuer pursuant to Section 5.3(e).   51  4131-7075-5128  That portion of the proceeds of the Notes set forth in Section 3.4 shall be deposited into  the Reserve Account. In addition, on any Monthly Payment Date, the Indenture Trustee shall  transfer Available Funds to the Reserve Account as and to the extent provided in Article 5  hereof. Moneys in the Reserve Account that constitute Available Funds shall be applied on any  Monthly Payment Date as provided in Article 5 hereof.   (c) [Reserved].    (d) [Reserved].  (e) Administration of the Collection Account and the Reserve Account.   Funds on deposit in the Collection Account or the Reserve Account that are not both deposited  and to be withdrawn on the same date shall be invested in Permitted Investments.  Any such  investment shall mature and such funds shall be available for withdrawal on or prior to the  Business Day immediately preceding the Payment Date immediately following the Monthly  Period in which such funds were received or deposited.  Wilmington Trust, National  Association is hereby appointed as the initial securities intermediary hereunder (the “Securities  Intermediary”) and accepts such appointment.  The Securities Intermediary represents, warrants,  and covenants, and the parties hereto agree, that at all times prior to the termination of this  Indenture: (i) the Securities Intermediary shall be a bank that in the ordinary course of its  business maintains securities accounts for others and is acting in that capacity hereunder; (ii) the  Collection Account and the Reserve Account each shall be an account maintained with the  Securities Intermediary to which financial assets may be credited and the Securities  Intermediary shall treat the Indenture Trustee as entitled to exercise the rights that comprise  such financial assets; (iii) each item of property credited to the Collection Account or the  Reserve Account shall be treated as a financial asset; (iv) the Securities Intermediary shall  comply with entitlement orders originated by the Indenture Trustee without further consent by  the Issuer or any other Person; (v) the Securities Intermediary waives any Lien on any property  credited to the Collection Account or the Reserve Account, and (vi) the Securities Intermediary  agrees that its jurisdiction for purposes of Section 8-110 and Section 9-305(a)(3) of the UCC  shall be New York.  The Securities Intermediary shall maintain for the benefit of the Secured  Parties, possession or control of each other Permitted Investment (including any negotiable  instruments, if any, evidencing such Permitted Investments) not credited to or deposited in a  Trust Account (other than such as are described in clause (b) of the definition thereof); provided  that no Permitted Investment shall be disposed of prior to its maturity date if such disposition  would result in a loss.  Nothing herein shall impose upon the Securities Intermediary any duties  or obligations other than those expressly set forth herein and those applicable to a securities  intermediary under the UCC.  The Securities Intermediary shall be entitled to all of the  protections available to a securities intermediary under the UCC.  At the end of each month, all  interest and earnings (net of losses and investment expenses) on funds on deposit in the  Collection Account and on deposit in the Reserve Account, respectively, shall be treated as  Investment Earnings.  If at the end of a month losses and investment expenses on funds on  deposit in the Collection Account or the Reserve Account exceed interest and earnings on such  funds during such month, losses and expenses to the extent of such excess will be allocated  among the Noteholders and the Issuer as provided in Section 5.15.  Subject to the restrictions set  forth above, the Issuer, or a Person designated in writing by the Issuer, of which the Indenture  Trustee shall have received written notification thereof, shall have the authority to instruct the  





 






52  4131-7075-5128  Indenture Trustee with respect to the investment of funds on deposit in the Collection Account  or the Reserve Account.  Notwithstanding anything herein to the contrary, if the Issuer (or its  designee) has not provided such direction, the funds in the Collection Account and the Reserve  Account will remain uninvested. Neither the Indenture Trustee nor the Securities Intermediary  shall have any responsibility or liability for any loss which may result from any investment or  sale of investment made pursuant to this Indenture. Wilmington Trust, National Association (in  any capacity hereunder) is hereby authorized, in making or disposing of any investment  permitted by this Indenture, to deal with itself (in its individual capacity) or with any one or  more of its affiliates, whether it or any such affiliate is acting as agent of Wilmington Trust,  National Association (acting in any capacity hereunder) or for any third person or dealing as  principal for its own account. The parties to the Transaction Documents acknowledge that the  Wilmington Trust, National Association (individually and in any capacity hereunder) is not  providing investment supervision, recommendations, or advice.  (f) Wilmington Trust, National Association shall be the depositary bank  hereunder with respect to certain deposit accounts, which shall be non-interest bearing trust  accounts,  as may be established from time to time (the “Depositary Bank”).  For the avoidance  of doubt, there currently is no such deposit account established hereunder.  (g) Qualified Institution.  If, at any time, the institution holding any account  established pursuant to this Section 5.3 ceases to be a Qualified Institution, the Indenture  Trustee shall, within ten (10) Business Days, establish a new account or accounts, as the case  may be, meeting the conditions specified above with a Qualified Institution, and shall transfer  any cash or any investments to such new account or accounts, as the case may be.  (h) Each of the Securities Intermediary, the Certificate Registrar, and the  Depositary Bank shall be entitled to all the same rights, privileges, protections, immunities and  indemnities as are contained in Article 11 of this Indenture, all of which are incorporated into  this Section 5.3 mutatis mutandis, in addition to any such rights, privileges, protections,  immunities and indemnities contained in this Section 5.3; provided, however; that nothing  contained in this Section 5.3 or in Article 11 shall (i) relieve the Securities Intermediary of the  obligation to comply with entitlement orders as provided in Section 5.3(e) or (ii) relieve the  Depositary Bank of the obligation to comply with instructions directing disposition of the funds  as provided in Section 5.3(f).  Section 5.4.  Collections and Allocations.  (a) Collections in General. Until this Indenture is terminated pursuant to  Section 12.1, the Issuer shall cause, or shall cause the Servicer under the Servicing Agreement  to cause, all Collections due and to become due, as the case may be, to be transferred to the  Collection Account as promptly as possible after the date of receipt by the Servicer of such  Collections, but in no event later than the second Business Day following the Date of  Processing (or with respect to In-Store Payments, the third Business Day following receipt).  All  monies, instruments, cash and other proceeds received by the Servicer in respect of the Trust  Estate pursuant to this Indenture shall be deposited in the Collection Account as specified herein  and shall be applied as provided in this Article 5 and Article 6.  53  4131-7075-5128  The Servicer shall allocate such amounts to the Issuer in accordance with this Article 5  and shall instruct the Indenture Trustee to withdraw the required amounts from the Collection  Account or pay such amounts to the Issuer in accordance with this Article 5.  The Servicer shall  make such deposits or payments on the date indicated therein by wire transfer.  (b) [Reserved].    (c) Issuer Distributions.  During the Revolving Period, all amounts on  deposit in the Collection Account in excess of the Required Monthly Payments may be paid to  the Issuer on each Business Day (“Issuer Distributions”) provided that (i) the Coverage Test is  satisfied after giving effect to any such payment to the Issuer; and (ii) any such payment to the  Issuer shall be limited to the extent used by the Issuer for Permissible Uses.  The Issuer (or the  Servicer) shall provide the Indenture Trustee with written notice or a transfer or purchaser  report (which may be in the form of a spreadsheet) as to the amount of Issuer Distributions for  any Business Day, and delivery of such notice or report shall be deemed to be a certification by  the Issuer that the foregoing conditions were satisfied.  Upon receipt of such certification, the  Indenture Trustee shall forward the Issuer Distributions directly to or at the direction of the  Issuer.    The Issuer will meet the “Coverage Test” if, on any date of determination:  (i) no Borrowing Base Shortfall shall exist;  (ii) the amount remaining on deposit in the Collection Account equals or  exceeds the amount distributable on the next Payment Date under clauses (a)(i)-(v) of  Section 5.15 (the “Required Monthly Payments”);  (iii) the Amortization Period has not commenced; and  (iv) there shall not exist on such Business Day, and such application thereof  shall not result in the occurrence of, a Rapid Amortization Event, a Servicer Default, an  Event of Default or a Default (in each case determined by the Servicer taking into  account any increases, decreases and status changes of the Receivables and any  increases or decreases in the Notes and the amount on deposit in the Collection Account  including those scheduled to occur on such date).    (d) [Reserved].  (e) Disqualification of Institution Maintaining Collection Account.  Upon  and after the establishment of a new Collection Account with a Qualified Institution, the  Servicer shall deposit or cause to be deposited all Collections as set forth in Section 5.3(a) into  the new Collection Account, and in no such event shall deposit or cause to be deposited any  Collections thereafter into any account established, held or maintained with the institution  formerly maintaining the Collection Account (unless it later becomes a Qualified Institution or  qualified corporate trust department maintaining the Collection Account).  54  4131-7075-5128  Section 5.5.  Determination of Monthly Interest.  Monthly interest with respect to  each of the Notes shall be determined, allocated and distributed in accordance with the  procedures set forth in Section 5.12.  Section 5.6.  Determination of Monthly Principal.  Monthly principal and other  amounts with respect to each of the Notes shall be determined, allocated and distributed in  accordance with the procedures set forth in Section 5.15.  However, all principal or interest with  respect to any of the Notes shall be due and payable no later than the Legal Final Payment Date  with respect to the Notes.  Section 5.7.  General Provisions Regarding Accounts.  Subject to Section 11.1(c),  the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any of  the Trust Estate resulting from any loss on any Permitted Investment included therein except for  losses attributable to the Indenture Trustee’s failure to make payments on such Permitted  Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and  not as trustee, in accordance with their terms.  Section 5.8.  Removed Receivables.  Upon satisfaction of the conditions and the  requirements of any of (i) Section 8.3(a) and Section 15.1 hereof, (ii) Section 2.7 of the Servicing  Agreement, (iii) Section 6.1 of the Purchase Agreement or (iv) Sections 2.7 and 6.1 of the  Transfer Agreement, as applicable, the Issuer shall execute and deliver and, upon receipt of an  Issuer Order or an Administrator Order, the Indenture Trustee shall acknowledge an instrument  in the form attached hereto as Exhibit B evidencing the Indenture Trustee’s release of the related  Removed Receivables and Related Security, and the Removed Receivables and Related Security  shall no longer constitute a part of the Trust Estate.  No party relying upon an instrument  executed by the Indenture Trustee as provided in this Article 5 shall be bound to ascertain the  Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to  the application of any moneys.  Section 5.9.  [Reserved].  Section 5.10.  [Reserved].  Section 5.11.  [Reserved].  Section 5.12.  Determination of Monthly Interest; LIBOR Notification.    (a) The amount of monthly interest payable on the Class A Notes on each  Payment Date will be determined by the Servicer as of each Determination Date and will be an  amount for each day during the related Interest Period equal to the product of (i) 1/360, times  (ii) the Class A Note Rate in effect on such day, times (iii) the Aggregate Class A Note  Principal on such day (such aggregate amount for any Interest Period, the “Class A Monthly  Interest”).    In addition to the Class A Monthly Interest, an amount equal to the sum of (i) the  amount of any unpaid Class A Deficiency Amount, as defined below, plus (ii) an amount for  each day during the related Interest Period equal to the product of (A) 1/360, times (B) the Class  A Note Rate in effect on such day, times (C) any Class A Deficiency Amount, as defined below  55  4131-7075-5128  (or the portion thereof which has not theretofore been paid to the Class A Noteholders), will  also be payable to the Class A Noteholders (such aggregate amount for any Interest Period  being herein called the “Class A Additional Interest”).  The “Class A Deficiency Amount” for  any Determination Date shall be equal to the excess, if any, of (x) the sum of (i) the Class A  Monthly Interest and the Class A Additional Interest, in each case for the Interest Period ended  immediately prior to the preceding Payment Date, plus (ii) any Class A Deficiency Amount for  the preceding period, over (y) the amount actually paid in respect thereof on the preceding  Payment Date; provided, however, that the Class A Deficiency Amount on the first  Determination Date shall be zero.  (b) The interest rate on the Class A Notes is determined by reference to One- Month LIBOR, which is derived from the London interbank offered rate (“LIBOR”).  LIBOR is  intended to represent the rate at which contributing banks may obtain short-term borrowings  from each other in the London interbank market.  On March 5, 2021, the U.K. Financial  Conduct Authority (“FCA”) publicly announced that: (a) immediately after December 31, 2021,  publication of the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease;  immediately after June 30, 2023, publication of the overnight and 12-month U.S. Dollar LIBOR  settings will permanently cease; and immediately after June 30, 2023, the 1-month, 3-month and  6-month Dollar LIBOR settings will cease to be provided or, subject to the FCA’s consideration  of the case, be provided on a synthetic basis and no longer be representative of the underlying  market and economic reality they are intended to measure and that representativeness will not  be restored.  There is no assurance that dates announced by the FCA will not change or that the  administrator of LIBOR and/or regulators will not take further action that could impact the  availability, composition, or characteristics of LIBOR or the currencies and/or tenors for which  LIBOR is published.  Each party to this Indenture should consult its own advisors to stay  informed of any such developments.  Public and private sector industry initiatives are currently  underway to identify new or alternative reference rates to be used in place of LIBOR.  Upon the  occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in  Election, Sections 5.17(b) and (c) provide the mechanisms for determining an alternative rate of  interest.  The Required Noteholders will promptly notify the Issuer and the Noteholders (with a  copy to the Indenture Trustee and the Paying Agent), pursuant to Section 5.17(e), of any change  to the reference rate upon which the interest rate on Class A Notes is based.  The Noteholders,  the Owner Trustee, the Indenture Trustee and the Paying Agent do not warrant or accept any  responsibility for, and shall not have any liability with respect to, the administration,  submission, performance or any other matter related to LIBOR or with respect to any alternative  or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such  alternative, successor or replacement rate implemented pursuant to Section 5.17(b) or (c),  whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event  or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement  Conforming Changes pursuant to Section 5.17(d), including without limitation, whether the  composition or characteristics of any such alternative, successor or replacement reference rate  will be similar to, or produce the same value or economic equivalence of, LIBOR or have the  same volume or liquidity as did the London interbank offered rate prior to its discontinuance or  unavailability.  The Noteholders, the Indenture Trustee, the Paying Agent and their respective  affiliates and/or other related entities may engage in transactions that affect the calculation of  any successor or alternative rate (including any Benchmark Replacement) and/or any relevant  adjustments thereto, in each case, in a manner adverse to the Issuer.  The Required Noteholders  





 






56  4131-7075-5128  may select information sources or services in their reasonable discretion to ascertain any  Benchmark or any component thereof, in each case pursuant to the terms of this Indenture, and  shall have no liability to the Issuer, any Noteholder or any other person or entity for damages of  any kind, including direct or indirect, special, punitive, incidental or consequential damages,  costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or calculation of any such rate (or component thereof) provided by any such  information source or service.  Section 5.13.  [Reserved].  Section 5.14.  [Reserved].  Section 5.15.  Monthly Payments.  On or before the Business Day immediately  preceding each Payment Date, the Servicer shall instruct the Indenture Trustee in writing (which  writing shall be substantially in the form of the Monthly Servicer Report attached as Exhibit B to  the Servicing Agreement) to withdraw, and the Indenture Trustee, acting in accordance with such  instructions, shall withdraw on the related Payment Date, as applicable, to the extent of the funds  credited to the relevant accounts, the amounts required to be withdrawn from the Collection  Account and the Reserve Account as follows:  (a) An amount equal to the Distributable Funds for such Payment Date shall  be distributed by the Indenture Trustee on such Payment Date in the following priority to the  extent of funds available therefor:  (i) first, to the Indenture Trustee, the Securities Intermediary, the Depositary  Bank, the Certificate Registrar, the Owner Trustee, the Depositor Receivables Trustee  and any successor Servicer (distributed on a pari passu and pro rata basis), an amount  equal to the accrued and unpaid Trustee Fees and Expenses for such Payment Date (plus  the Trustee Fees and Expenses due but not paid on any prior Payment Date);  (ii) second, if Oportun, Inc. is the Servicer, to the Servicer an amount equal  to the accrued and unpaid Servicing Fee for such Payment Date (plus any Servicing Fee  due but not paid on any prior Payment Date);  (iii) third, (A) to the Class A Noteholders, an amount equal to the sum of (I)  the Class A Monthly Interest for such Payment Date, plus (II) the amount of any Class A  Deficiency Amount for such Payment Date, plus (III) the amount of any Class A  Additional Interest for such Payment Date, (B) to the Class A Noteholders, an amount  equal to the aggregate accrued and unpaid Unused Fees for the prior Monthly Period and  (C) to the Class A Noteholders, an amount equal to the aggregate accrued and unpaid  Legacy Additional Interest for the prior Monthly Period;  (iv) fourth, to the Class A Noteholders, an amount equal to the Borrowing  Base Shortfall, if any;  (v) fifth, to the Class A Noteholders, any other amounts payable thereto  (excluding the Aggregate Class A Note Principal but including any unreimbursed fees,  expenses and indemnity amounts) pursuant to the Transaction Documents;   57  4131-7075-5128  (vi) sixth, during the Amortization Period and at any time on or after the  Legal Final Payment Date, to the Class A Noteholders, all remaining amounts until the  Class A Notes have been paid in full;   (vii) seventh, to the Indenture Trustee, the Securities Intermediary, the  Depositary Bank, the Certificate Registrar, the Owner Trustee, the Depositor  Receivables Trustee and any successor Servicer (distributed on a pari passu and pro  rata basis), an amount equal to any unreimbursed fees, expenses and indemnity amounts  of the Indenture Trustee, the Securities Intermediary, the Depositary Bank, the Owner  Trustee, the Depositor Receivables Trustee and any successor Servicer;   (viii) eighth, so long as no Rapid Amortization Event or Event of Default has  occurred and is continuing, an amount equal to the lesser of (A) the remaining  Distributable Funds and (B) the amount, if any, necessary to increase the amounts  credited to the Reserve Account to the Reserve Account Requirement for such Payment  Date shall be deposited into the Reserve Account on the related Payment Date; and   (ix) ninth, during the Revolving Period and so long as no Rapid Amortization  Event, Servicer Default or Event of Default has occurred the balance, if any, shall be  released to the Issuer, free and clear of the Lien of the Indenture, for distribution on the  Certificates pursuant to the Trust Agreement and in accordance with the Servicer’s  instructions in the applicable Monthly Servicer Report.  Section 5.16.  Servicer’s Failure to Make a Deposit or Payment.  The Indenture  Trustee shall not have any liability for any failure or delay in making the payments or  deposits described herein resulting from a failure or delay by the Servicer to make, or give  instructions to make, such payment or deposit in accordance with the terms herein.  If the  Servicer fails to make, or give instructions to make, any payment, deposit or withdrawal  required to be made or given by the Servicer at the time specified in this Indenture  (including applicable grace periods), the Indenture Trustee shall make such payment,  deposit or withdrawal from the applicable Trust Account without instruction from the  Servicer.  The Indenture Trustee shall be required to make any such payment, deposit or  withdrawal hereunder only to the extent that the Indenture Trustee has sufficient information  to allow it to determine the amount thereof.  The Servicer shall, upon reasonable request of  the Indenture Trustee, promptly provide the Indenture Trustee with all information  necessary and in its possession to allow the Indenture Trustee to make such payment,  deposit or withdrawal.  Such funds or the proceeds of such withdrawal shall be applied by  the Indenture Trustee in the manner in which such payment or deposit should have been  made (or instructed to be made) by the Servicer.   Section 5.17.  Determination of One-Month LIBOR.  (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 5.17:  (i) On each Business Day, the Calculation Agent shall determine One-Month  LIBOR on the basis of the rate for Dollar deposits for a period equal to one month which  appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on such Business  58  4131-7075-5128  Day (or such other page as may replace such page on that service or other service or  services as may be nominated by ICE Benchmark Administration Limited or any  successor organization for the purpose of displaying London interbank offered rates of  U.S. dollar deposits for a one-month period) and shall send to the Servicer and the  Issuer, by facsimile or e-mail, notification of One-Month LIBOR for such Business Day.  (ii) If on any Business Day such rate does not appear on Reuters Page  LIBOR01 (or such other page), then the Class A Note Rate shall be determined by the  Calculation Agent by reference to the Alternative Rate and communicated to the  Servicer and the Issuer, by facsimile or e-mail.  (iii) On each Determination Date related to a Payment Date, prior to 3:00 p.m.  (New York time), the Calculation Agent shall send to the Servicer, the Issuer and the  Noteholders, by facsimile or e-mail, notification of One-Month LIBOR or the  Alternative Rate for each day during the prior Interest Period.   (b) Notwithstanding anything to the contrary herein or in any other  Transaction Document, if a Benchmark Transition Event or an Early Opt-in Election, as  applicable, and its related Benchmark Replacement Date have occurred prior to the Reference  Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark  Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will  replace such Benchmark for all purposes hereunder and under any Transaction Document (other  than the Purchase Agreement) in respect of such Benchmark setting and subsequent Benchmark  settings without any amendment to, or further action or consent of any other party to, this  Indenture or any other Transaction Document and (y) if a Benchmark Replacement is  determined in accordance with clause (3) of the definition of “Benchmark Replacement” for  such Benchmark Replacement Date, such Benchmark Replacement will replace such  Benchmark for all purposes hereunder and under any Transaction Document (other than the  Purchase Agreement) in respect of any Benchmark setting at or after 5:00 p.m. (New York City  time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is  provided to the Noteholders (with a copy to the Indenture Trustee and Paying Agent) without  any amendment to, or further action or consent of any other party to, this Indenture or any other  Transaction Document so long as the Issuer has not received, by such time, written notice of  objection to such Benchmark Replacement from Noteholders comprising the Required  Noteholders.  (c) Notwithstanding anything to the contrary herein or in any other  Transaction Document and subject to the proviso below in this paragraph, if a Term SOFR  Transition Event and its related Benchmark Replacement Date have occurred prior to the  Reference Time in respect of any setting of the then-current Benchmark, then the applicable  Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or  under any Transaction Document (other than the Purchase Agreement) in respect of such  Benchmark setting and subsequent Benchmark settings, without any amendment to, or further  action or consent of any other party to, this Indenture or any other Transaction Document;  provided that, this clause (c) shall not be effective unless the Required Noteholders has  delivered to the Noteholders and the Issuer a Term SOFR Notice.  59  4131-7075-5128  (d) In connection with the implementation of a Benchmark Replacement, the  Required Noteholders will have the right to make Benchmark Replacement Conforming  Changes from time to time and, notwithstanding anything to the contrary herein or in any other  Transaction Document, any amendments implementing such Benchmark Replacement  Conforming Changes will become effective without any further action or consent of any other  party to this Indenture or any other Transaction Document; provided that no such amendment  may adversely affect the rights, duties, immunities, protections or indemnification rights of the  Indenture Trustee, Paying Agent, Registrar, Depositary Bank, Securities Intermediary,  Depositor Loan Trustee, Owner Trustee or Collateral Trustee without its written consent or shall  be made to the Purchase Agreement.  (e) The Required Noteholders will promptly notify the Issuer and the  Noteholders (with a copy to the Indenture Trustee and the Paying Agent) of (i) any occurrence  of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election,  as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of  any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion  of any Benchmark Unavailability Period. Any determination, decision or election that may be  made by any Noteholder (or group of Noteholders) pursuant to this Section 5.17, including any  determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence  of an event, circumstance or date and any decision to take or refrain from taking any action or  any selection, will be conclusive and binding absent manifest error and may be made in its or  their sole discretion and without consent from any other party to this Indenture or any other  Transaction Document, except, in each case, as expressly required pursuant to this Section 5.17.  (f) Upon the Issuer’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Issuer may revoke any request for an Advance to be made during any  Benchmark Unavailability Period. During any Benchmark Unavailability Period or at any time  that a tenor for the then-current Benchmark is not an Available Tenor, each Loan Rate shall be  determined by the Calculation Agent by reference to the Alternative Rate and communicated to  the Servicer and the Issuer, by facsimile or e-mail.  ARTICLE 6. DISTRIBUTIONS AND REPORTS  Section 6.1.  Distributions.  (a) On each Payment Date, the Indenture Trustee shall distribute (in  accordance with the Monthly Servicer Report delivered by the Servicer on or before such  related Determination Date pursuant to Section 2.8 of the Servicing Agreement) to each  Noteholder of record on the immediately preceding Record Date (other than as provided in  Section 12.5 respecting a final distribution), such Noteholder’s pro rata share (based on the Note  Principal held by such Noteholder) of the amounts that are payable to the Noteholders pursuant  to Section 5.15 by wire transfer to an account designated by such Noteholders.  (b) Notwithstanding anything to the contrary contained in this Indenture, if  the amount distributable in respect of principal on the Notes on any Payment Date is less than  





 






60  4131-7075-5128  one dollar, then no such distribution of principal need be made on such Payment Date to the  Noteholders.  Section 6.2. Monthly Statement.  (a) On or before each Payment Date, the Indenture Trustee shall make  available electronically to each Noteholder and Certificateholder, a statement in substantially  the form of Exhibit D hereto (a “Monthly Statement”) prepared by the Servicer and delivered to  the Indenture Trustee on the preceding Determination Date and setting forth, among other  things, the following information:  (i) the amount of Collections received during the related Monthly Period;  (ii) the amount of Collections received during the related Monthly Period in  respect of Finance Charge Receivables and Principal Receivables;   (iii) the amount of Collections received during the related Monthly Period in  respect of any annual fees, late fees, returned check fees and any other fees payable by  the Obligors on the Receivables;   (iv) the amount of Available Funds and Distributable Funds on deposit in the  Collection Account and, if applicable, the Reserve Account on such Payment Date;  (v) the amount of Trustee Fees and Expenses, Class A Monthly Interest,  Class A Deficiency Amounts, Class A Additional Interest and the Unused Fee,  respectively, for such Payment Date;  (vi) the Reserve Account Requirement and the balance in the Reserve  Account on such Payment Date;   (vii) the amount of the Servicing Fee for such Payment Date;  (viii) the total amount to be distributed to the Class A Noteholders on such  Payment Date;  (ix) the outstanding principal balance of the Class A Notes as of the end of  the day on the Payment Date;  (x) the amount of any Increases and Decreases in the Notes during the related  Monthly Period;  (xi) One-Month LIBOR for each day during the related Interest Period;  (xii) the date on which the Amortization Period commenced, if applicable;  (xiii) the aggregate Outstanding Receivables Balance of Receivables which  were 1-29 days, 30-59 days, 60-89 days, and 90-119 days delinquent, respectively, as of  the end of the preceding Monthly Period;   61  4131-7075-5128  (xiv) the (a) Liabilities, (b) Adjusted Liabilities, (c) Tangible Net Worth, (d)  Leverage Ratio and (e) Adjusted Leverage Ratio, in each case, of the Parent as of the  end of the second preceding Monthly Period (including, in each case, each of the  components thereof);  (xv) the aggregate amount of cash and Cash Equivalents of the Seller as of the  end of the second preceding Monthly Period;  (xvi) whether any of the Financial Covenants as of the end of the second  preceding Monthly Period have been breached;  (xvii) the aggregate Outstanding Receivables Balance of all Delinquent  Receivables as of the end of the preceding Monthly Period;  (xviii) the aggregate Outstanding Receivables Balance of all Receivables that  became Defaulted Receivables during the preceding Monthly Period;  (xix) the Three-Month Average Default Percentage for the preceding Monthly  Period;  (xx) the Three-Month Average Principal Payment Rate for the preceding  Monthly Period;  (xxi) the aggregate Outstanding Receivables Balance of all Eligible  Receivables as of the end of the preceding Monthly Period; and  (xxii) the amount and calculation of each excess concentration set forth in the  definition of “Concentration Limits” as of the end of the preceding Monthly Period.  On or before each Payment Date, to the extent the Servicer provides such information to the  Indenture Trustee, the Indenture Trustee will make available the monthly Servicer statement via  the Indenture Trustee’s Internet website and, with the consent or at the direction of the Issuer,  such other information regarding the Notes and/or the Receivables as the Indenture Trustee may  have in its possession, but only with the use of a password provided by the Indenture Trustee;  provided, however, the Indenture Trustee shall have no obligation to provide such information  described in this Section 6.2 until it has received the requisite information from the Issuer or the  Servicer and the applicable Noteholder or Certificateholder has completed the information  necessary to obtain a password from the Indenture Trustee.  The Indenture Trustee will make no  representation or warranties as to the accuracy or completeness of such documents and will  assume no responsibility therefor.  (b) The Indenture Trustee’s internet website shall be initially located at  “www.wilmingtontrustconnect.com” or at such other address as shall be specified by the  Indenture Trustee from time to time in writing to the Noteholders and Certificateholders.  In  connection with providing access to the Indenture Trustee’s internet website, the Indenture  Trustee may require registration and the acceptance of a disclaimer.  The Indenture Trustee shall  not be liable for information disseminated in accordance with this Indenture.  62  4131-7075-5128  (c) Annual Tax Statement.  To the extent required by the Code or the  Treasury regulations thereunder, on or before January 31 of each calendar year, the Indenture  Trustee shall distribute to each Person who at any time during the preceding calendar year was a  Noteholder or a Certificateholder, a statement prepared by the Servicer containing the  information required to be contained in the regular monthly report to Noteholders and  Certificateholders, as set forth in subclauses (v) and (vi) above , aggregated for such calendar  year, and a statement prepared by the Servicer with such other customary information  (consistent with the treatment of the Notes as debt) required by applicable tax Law to be  distributed to the Noteholders.  Such obligations of the Indenture Trustee shall be deemed to  have been satisfied to the extent that substantially comparable information shall be provided by  the Indenture Trustee pursuant to any requirements of the Code as from time to time in effect.  Section 6.3.  Issuer Payments.  The Issuer agrees to pay, and the Issuer agrees to  instruct the Servicer and the Indenture Trustee to pay, all amounts payable by it with respect  to the Notes, this Indenture and each of the other Transaction Documents to the applicable  account designated by the Person to which such amount is owing.  All such amounts to be  paid by the Issuer shall be paid no later than 3:00 p.m. (New York time) on the day when  due as determined in accordance with this Indenture and each of the other Transaction  Documents, in lawful money of the United States in immediately available funds.  Amounts  received after that time shall be deemed to have been received on the next Business Day and  shall bear interest at the Default Rate, which interest shall be payable on demand.  ARTICLE 7.  REPRESENTATIONS AND WARRANTIES OF THE ISSUER Section 7.1.  Representations and Warranties of the Issuer.  The Issuer hereby  represents and warrants to the Indenture Trustee and each of the Secured Parties that:  (a) Organization and Good Standing, etc.  The Issuer has been duly  organized and is validly existing and in good standing under the Laws of the State of Delaware,  with power and authority to own its properties and to conduct its respective businesses as such  properties are presently owned and such business is presently conducted.  The Issuer is not  organized under the Laws of any other jurisdiction or Governmental Authority.  The Issuer is  duly licensed or qualified to do business as a foreign entity in good standing in the jurisdiction  where its principal place of business and chief executive office is located and in each other  jurisdiction in which the failure to be so licensed or qualified would be reasonably likely to have  a Material Adverse Effect.  (b) Power and Authority; Due Authorization.  The Issuer has (a) all  necessary power, authority and legal right to (i) execute, deliver and perform its obligations  under this Indenture and each of the other Transaction Documents to which it is a party and  (b) duly authorized, by all necessary action, the execution, delivery and performance of this  Indenture and the other Transaction Documents to which it is a party and the borrowing, and the  granting of security therefor, on the terms and conditions provided herein.  63  4131-7075-5128  (c) No Violation.  The consummation of the transactions contemplated by  this Indenture and the other Transaction Documents and the fulfillment of the terms hereof will  not (a) conflict with, result in any breach of any of the terms and provisions of, or constitute  (with or without notice or lapse of time or both) a default under, (i) the organizational  documents of the Issuer or (ii) any indenture, loan agreement, pooling and servicing agreement,  receivables purchase agreement, mortgage, deed of trust, or other agreement or instrument to  which the Issuer is a party or by which it or its properties is bound, (b) result in or require the  creation or imposition of any Adverse Claim upon its properties pursuant to the terms of any  such indenture, loan agreement, pooling and servicing agreement, receivables purchase  agreement, mortgage, deed of trust, or other agreement or instrument, other than pursuant to the  terms of the Transaction Documents, or (c) violate any Law applicable to the Issuer or of any  Governmental Authority having jurisdiction over the Issuer or any of its respective properties.  (d) Validity and Binding Nature.  This Indenture is, and the other  Transaction Documents to which it is a party when duly executed and delivered by the Issuer  and the other parties thereto will be, the legal, valid and binding obligation of the Issuer  enforceable in accordance with their respective terms, except as enforceability may be limited  by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting  creditors’ rights generally and by general principles of equity.  (e) Government Approvals.  No authorization or approval or other action by,  and no notice to or filing with, any Governmental Authority required for the due execution,  delivery or performance by the Issuer of any Transaction Document to which it is a party  remains unobtained or unfiled, except for the filing of the UCC financing statements.  (f) [Reserved].  (g) Margin Regulations.  The Issuer is not engaged in the business of  extending credit for the purpose of purchasing or carrying margin stock, and no proceeds with  respect to the sale of the Notes, directly or indirectly, will be used for a purpose that violates, or  would be inconsistent with, Regulations T, U and X promulgated by the Federal Reserve Board  from time to time.  (h) Perfection.  (i) On and after the Closing Date and each Payment Date, the Issuer shall be  the owner of all of the Receivables and Related Security and Collections and proceeds  with respect thereto, free and clear of all Adverse Claims.  Within the time required  pursuant to the Perfection Representations, all financing statements and other documents  required to be recorded or filed in order to perfect and protect the assets of the Trust  Estate against all creditors (other than Secured Parties) of, and purchasers (other than  Secured Parties) from, the Issuer, the Depositor, the Depositor Receivables Trustee and  the Seller will have been duly filed in each filing office necessary for such purpose, and  all filing fees and taxes, if any, payable in connection with such filings shall have been  paid in full;  





 






64  4131-7075-5128  (ii) the Indenture constitutes a valid grant of a security interest to the  Indenture Trustee for the benefit of the Secured Parties in all right, title and interest of  the Issuer in the Receivables, the Related Security and Collections and proceeds with  respect thereto and all other assets of the Trust Estate, now existing or hereafter created  or acquired.  Accordingly, to the extent the UCC applies with respect to the perfection of  such security interest, upon the filing of any financing statements described in Article 8  of the Indenture and the execution of the Transaction Documents, the Indenture Trustee  shall have a first priority perfected security interest in such property and the proceeds  thereof (to the extent provided in Section 9-315), subject to Permitted Encumbrances.   Except as otherwise specifically provided in the Transaction Documents, neither the  Issuer nor any Person claiming through or under the Issuer has any claim to or interest in  the Collection Account.  To the extent the UCC does not apply with respect to the  perfection of such security interest, the Issuer shall have made all notice filings and  taken all other reasonable steps available to it to perfect and protect the Indenture  Trustee’s security interest in such property and the proceeds thereof against all Adverse  Claims; and  (iii) immediately prior to, and after giving effect to, the initial purchase of the  Notes, the Issuer will be Solvent.  (i) Offices.  The principal place of business and chief executive office of the  Issuer is located at the address referred to in Section 15.4 (or at such other locations, notified to  the Indenture Trustee in jurisdictions where all action required thereby has been taken and  completed).  (j) Tax Status.  The Issuer has filed all tax returns (federal, state and local)  required to be filed by it and has paid or made adequate provision for the payment of all taxes  (including all state franchise taxes), assessments and other governmental charges that have  become due and payable (including for such purposes, the setting aside of appropriate reserves  for taxes, assessments and other governmental charges being contested in good faith).  (k) Use of Proceeds.  No proceeds of any Notes will be used by the Issuer to  acquire any security in any transaction which is subject to Section 13 or 14 of the Exchange  Act.  (l) Compliance with Applicable Laws; Licenses, etc.  (i) The Issuer is in compliance with the requirements of all applicable  Laws of all Governmental Authorities, a breach of any of which, individually or in the  aggregate, would be reasonably likely to have a Material Adverse Effect.  (ii) The Issuer has not failed to obtain any licenses, permits, franchises  or other governmental authorizations necessary to the ownership of its properties or to  the conduct of its business, which violation or failure to obtain would be reasonably  likely to have a Material Adverse Effect.  (m) No Proceedings.  Except as described in Schedule 2:  65  4131-7075-5128  (i) there is no order, judgment, decree, injunction, stipulation or  consent order of or with any court or other government authority to which the Issuer is  subject, and there is no action, suit, arbitration, regulatory proceeding or investigation  pending, or, to the knowledge of the Issuer, threatened, before or by any Governmental  Authority, against the Issuer; and  (ii) there is no action, suit, proceeding, arbitration, regulatory or  governmental investigation, pending or, to the knowledge of the Issuer, threatened,  before or by any Governmental Authority (A) asserting the invalidity of this Indenture,  the Notes or any other Transaction Document, (B) seeking to prevent the issuance of the  Notes pursuant hereto or the consummation of any of the other transactions  contemplated by this Indenture or any other Transaction Document or (C) seeking to  adversely affect the federal income tax attributes of the Issuer.  (n) Investment Company Act; Covered Fund.  The Issuer is not an  “investment company” within the meaning of the Investment Company Act and the Issuer relies  on the exception from the definition of “investment company” set forth in Rule 3a-7 under the  Investment Company Act, although other exceptions or exclusions may be available to the  Issuer. The Issuer is not a “covered fund” as defined in the final regulations issued December  10, 2013 implementing the “Volcker Rule” (Section 619 of the Dodd-Frank Wall Street Reform  and Consumer Protection Act), as amended.  (o) Eligible Receivables.  Each Receivable included as an Eligible  Receivable in any Monthly Servicer Report shall be an Eligible Receivable as of the date so  included.  Each Receivable, including Subsequently Purchased Receivables, purchased by the  Issuer on any Purchase Date shall be an Eligible Receivable as of such Purchase Date unless  otherwise specified to the Indenture Trustee in writing prior to such Purchase Date.  (p) Receivables Schedule.  The most recently delivered schedule of  Receivables reflects, in all material respects, a true and correct schedule of the Receivables  included in the Trust Estate as of the date of delivery.  (q) ERISA.  (i) Each of the Issuer, the Depositor, the Seller, the Servicer and  their respective ERISA Affiliates is in compliance with ERISA unless, in the case of the Seller  and the Servicer, any failure to so comply could not reasonably be expected to have a Material  Adverse Effect or create a Lien on the assets of the Issuer or any of its ERISA Affiliates under  Section 430(k) of the Code or Section 303(k) or 4068 of ERISA (“ERISA Lien”); and (ii) no  ERISA Lien exists. No ERISA Event has occurred with respect to any Pension Plan that could  reasonably be expected to have a Material Adverse Effect or result in an ERISA Lien.  (r) Accuracy of Information.  All information heretofore furnished by, or on  behalf of, the Issuer to the Indenture Trustee or any of the Noteholders in connection with any  Transaction Document, or any transaction contemplated thereby, was, at the time it was  furnished, true and accurate in every material respect (without omission of any information  necessary to prevent such information from being materially misleading).  66  4131-7075-5128  (s) Subsidiaries.  The Issuer has no Subsidiaries and does not own or hold,  directly or indirectly, any equity interest in any Person, other than Permitted Investments.  (t) Notes.  The Notes have been duly and validly authorized, and, when  executed and authenticated in accordance with the terms of the Indenture, and delivered to and  paid for in accordance with the Note Purchase Agreement, will be duly and validly issued and  outstanding and will be entitled to the benefits of the Indenture.     (u) Sales by the Seller.  Each sale of Receivables by the Seller to the  Depositor and the Depositor Receivables Trustee shall have been effected under, and in  accordance with the terms of, the Purchase Agreement, including the payment by the Depositor  to the Seller of an amount equal to the purchase price therefor as described in the Purchase  Agreement, and each such sale shall have been made for “reasonably equivalent value” (as such  term is used under Section 548 of the Bankruptcy Code) and not for or on account of  “antecedent debt” (as such term is used under Section 547 of the Bankruptcy Code) owed by the  Depositor to such Seller.  Section 7.2.  Reaffirmation of Representations and Warranties by the Issuer.  On the  Closing Date and on each Business Day thereafter, the Issuer shall be deemed to have  certified that all representations and warranties described in Section 7.1 hereof are true and  correct on and as of such day as though made on and as of such day (except to the extent  they relate to an earlier or later date, and then as of such earlier or later date).  ARTICLE 8.  COVENANTS  Section 8.1.  Money for Payments To Be Held in Trust.  At all times from the date  hereof to the Indenture Termination Date, unless the Required Noteholders shall otherwise  consent in writing, all payments of amounts due and payable with respect to any Notes that are to  be made from amounts withdrawn from the Collection Account shall be made on behalf of the  Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from  Collection Account for payments of such Notes shall be paid over to the Issuer except as  provided in this Indenture.  Section 8.2.  Affirmative Covenants of Issuer.  At all times from the date hereof to  the Indenture Termination Date, unless the Required Noteholders shall otherwise consent in  writing, the Issuer shall:  (a) Payment of Notes.  Duly and punctually pay or cause to be paid principal  of (and premium, if any), interest and other amounts on and with respect to the Notes pursuant  to the provisions of this Indenture.  Principal, interest and other amounts shall be considered  paid on the date due if the Indenture Trustee or the Paying Agent holds on that date money  designated for and sufficient to pay all principal, interest and other amounts then due.  Amounts  properly withheld under the Code by any Person from a payment to any Noteholder of interest,  principal and/or other amounts shall be considered as having been paid by the Issuer to such  Noteholder for all purposes of this Indenture.  67  4131-7075-5128  (b) Maintenance of Office or Agency.  Maintain an office or agency (which  may be an office of the Indenture Trustee, Transfer Agent and Registrar or co-registrar) where  Notes may be surrendered for registration of transfer or exchange, where notices and demands  to or upon the Issuer in respect of the Notes and this Indenture may be served, and where, at any  time when the Issuer is obligated to make a payment of principal upon the Notes, the Notes may  be surrendered for payment.  The Issuer hereby initially appoints the Indenture Trustee to serve  as its agent for purposes of the surrender for registration, transfer, exchange or payment of the  Notes. The Issuer hereby initially appoints the Owner Trustee to serve as its agent for purposes  of the service of notices and demands.  The Issuer will give prompt written notice to the  Indenture Trustee and the Noteholders of the location, and any change in the location, of such  office or agency.  If at any time the Issuer shall fail to maintain any such required office or  agency or shall fail to furnish the Indenture Trustee with the address thereof, such presentations,  surrenders, notices and demands may be made or served at the Corporate Trust Office of the  Indenture Trustee or the principal office of the Owner Trustee, as applicable, for the purposes  described in the initial appointments above, and the Issuer hereby appoints the Indenture  Trustee and the Owner Trustee as its agent to receive all such surrenders, notices and demands,  as described above.  The Issuer may also from time to time designate one or more other offices or agencies  where the Notes may be presented or surrendered for any or all such purposes and may from  time to time rescind such designations.  The Issuer will give prompt written notice to the  Indenture Trustee and the Noteholders of any such designation or rescission and of any change in  the location of any such other office or agency.  The Issuer hereby designates the Corporate Trust Office of the Indenture Trustee as one  such office or agency of the Issuer.  (c) Compliance with Laws, etc.    (i) Comply with all applicable Laws, a breach of any of which,  individually or in the aggregate, would be reasonably likely to have a Material Adverse  Effect;  (ii) Obtain any licenses, permits, franchises or other governmental  authorizations necessary to the ownership of the Receivables and its other properties or  to the conduct of its business, the violation or failure to obtain which would be  reasonably likely to have a Material Adverse Effect; and   (iii) Ensure that all governmental actions of all Governmental  Authorities required with respect to the transactions contemplated by the Transaction  Documents and the other documents related thereto have been obtained or made.  (d) Preservation of Existence.  Preserve and maintain its existence rights,  franchises and privileges in the jurisdiction of its incorporation or organization, and qualify and  remain qualified in good standing as a foreign entity in the jurisdiction where its principal place  of business and its chief executive office are located and in each other jurisdiction where the  





 






68  4131-7075-5128  failure to preserve and maintain such existence, rights, franchises, privileges and qualifications  would have a Material Adverse Effect.  (e) Performance and Compliance with Receivables.  Timely and fully  perform and comply with all provisions, covenants and other promises required to be observed  by it under the Receivables and all other agreements related to such Receivables.  (f) Collection Policy.  Comply with the Credit and Collection Policies in  regard to each Receivable.  (g) Reporting Requirements of The Issuer.  Until the Indenture Termination  Date, furnish to the Noteholders:  (i) Financial Statements.   (A) as soon as available, and in any event within one hundred twenty  (120) days after the end of each Fiscal Year of the Issuer, a copy of the annual  unaudited report for such Fiscal Year of the Issuer including a copy of the balance  sheet of the Issuer, in each case, as at the end of such Fiscal Year, together with  the related statements of earnings and cash flows for such Fiscal Year;  (B) as soon as available and in any event within one hundred twenty  (120) days after the end of each Fiscal Year of Consolidated Parent, a balance  sheet of Consolidated Parent as of the end of such year and statements of income  and retained earnings and of source and application of funds of Consolidated  Parent, for the period commencing at the end of the previous Fiscal Year and  ending with the end of such year, in each case setting forth comparative figures  for the previous Fiscal Year, certified without material qualification by Deloitte &  Touche LLP or other nationally recognized independent public accountants,  together with a certificate of such accounting firm stating that in the course of the  regular audit of the business of Consolidated Parent, such accounting firm has  obtained no knowledge that an Event of Default, Default or Rapid Amortization  Event has occurred and is continuing, or if, in the opinion of such accounting  firm, such an Event of Default, Default or Rapid Amortization Event has occurred  and is continuing; and  (C) as soon as available and in any event within forty-five (45) days  after the end of each fiscal quarter, quarterly balance sheets and quarterly  statements of source and application of funds and quarterly statements of income  and retained earnings of Consolidated Parent, certified by a Responsible Officer  of Consolidated Parent (which certification shall state that such balance sheets  and statements fairly present the financial condition and results of operations for  such fiscal quarter, subject to year-end audit adjustments), delivery of which  balance sheets and statements shall be accompanied by an Officer’s Certificate of  the Administrator to the effect that, to the knowledge of the Administrator, no  Event of Default, Default or Rapid Amortization Event has occurred and is  continuing.  69  4131-7075-5128  For so long as Consolidated Parent is subject to the reporting requirements of  Section 13(a) of the Exchange Act, its filing of the annual and quarterly reports required  under the Exchange Act, on a timely basis, shall be deemed compliance with this  Section 8.2(g)(i).  (ii) Notice of Default, Event of Default or Rapid Amortization Event.   Immediately, and in any event within one (1) Business Day after the Issuer obtains  knowledge of the occurrence of each Default, Event of Default or Rapid Amortization  Event a statement of a Responsible Officer of the Issuer setting forth details of such  Default, Event of Default or Rapid Amortization Event and the action which the Issuer  proposes to take with respect thereto;  (iii) Change in Credit and Collection Policies.  Within ten (10) Business Days  after the date any material change in or amendment to the Credit and Collection Policies  is made, a copy of the Credit and Collection Policies then in effect indicating such  change or amendment;  (iv) ERISA.  Promptly after the filing or receiving thereof, copies of all  reports and notices with respect to any ERISA Event which either (i) the Issuer, the  Depositor, the Seller, the Servicer or any of their respective ERISA Affiliates files under  ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or  the U.S. Department of Labor or (ii) the Issuer, the Depositor, the Seller, the Servicer or  any of their respective ERISA Affiliates receives from the Internal Revenue Service, the  Pension Benefit Guaranty Corporation or the U.S. Department of Labor.  The Issuer  shall give the Indenture Trustee and each Noteholder prompt written notice of any  ERISA Event that could result in the imposition of an ERISA Lien;  (v) If a Responsible Officer of the Issuer shall have actual knowledge of the  occurrence of a Servicer Default, notice thereof to the Indenture Trustee, which notice  shall specify the action, if any, the Issuer is taking in respect of such default.  If a  Servicer Default shall arise from the failure of the Servicer to perform any of its duties  or obligations under the Servicing Agreement, the Issuer shall take all reasonable steps  available to it to remedy such failure, including any action reasonably requested by the  Indenture Trustee (acting at the direction of the Required Noteholders); and  (vi) On or before April 1, 2022 and on or before April 1 of each year  thereafter, and otherwise in compliance with the requirements of TIA Section 314(a)(4)  (if this Indenture is required to be qualified under the TIA), an Officer’s Certificate of  the Administrator stating, as to the Responsible Officer signing such Officer’s  Certificate, that:  (A) a review of the activities of the Issuer during such year and of  performance under this Indenture has been made under such Responsible  Officer’s supervision; and  (B) to the best of such Responsible Officer’s knowledge, based on  such review, the Issuer has complied with all conditions and covenants under this  70  4131-7075-5128  Indenture throughout such year, or, if there has been a Default, Event of Default  or Rapid Amortization Event specifying each such Default, Event of Default or  Rapid Amortization Event known to such Responsible Officer and the nature and  status thereof.  (h) Use of Proceeds.  Use the proceeds of the Notes solely in connection with  the acquisition or funding of Receivables, funding any initial deposit to the Reserve Account as  specified in Section 3.4, payment of costs of issuance of the Notes and other Permissible Uses.  (i) Protection of Trust Estate.  At its expense, perform all acts and execute  all documents necessary and desirable at any time to evidence, perfect, maintain and enforce the  security interest of the Indenture Trustee in the Trust Estate and the priority thereof.  The Issuer  will prepare, deliver and authorize the filing of financing statements relating to or covering the  Trust Estate (which financing statements may cover “all assets” of the Issuer).    (j) Inspection of Records.  Once per calendar year (or upon the occurrence of  a non-routine regulatory inquiry or during the continuance of any Event of Default or Servicer  Default, as frequently as requested by the Required Noteholders), upon reasonable prior written  notice (which, except during the continuance of any Event of Default or Servicer Default, shall  be at least 30 days), permit the Required Noteholders or their duly authorized representatives,  attorneys or auditors to inspect the Receivables, the Receivable Files and the Records at such  times as such Person may reasonably request.  Upon instructions from the Required Noteholders  or their duly authorized representatives, attorneys or auditors, the Issuer shall release a copy of  any document related to any Receivables to such Person.  (k) Furnishing of Information.  Provide such cooperation, information and  assistance, and prepare and supply the Indenture Trustee and the Noteholders with such data  regarding the performance by the Obligors of their obligations under the Receivables and the  performance by the Issuer and Servicer of their respective obligations under the Transaction  Documents, as may be reasonably requested by the Indenture Trustee or the Required  Noteholders from time to time.  (l) Performance and Compliance with Receivables.  At its expense, timely  and fully perform and comply with all material provisions, covenants and other promises, if  any, required to be observed by the Issuer under the Receivables.  (m) Collections Received.  Hold in trust, and immediately (but in any event  no later than two (2) Business Days following the date of receipt thereof) transfer to the  Servicer for deposit into the Collection Account (subject to Section 5.4(a)) all Collections, if  any, received from time to time by the Issuer.  (n) Enforcement of Transaction Documents.  Use commercially reasonable  efforts to enforce all rights held by it under any of the Transaction Documents, shall not amend,  supplement or otherwise modify any of the Transaction Documents and shall not waive any  breach of any covenant contained thereunder without the prior written consent of the Required  Noteholders.  The Issuer shall take all actions necessary and desirable to enforce the Issuer’s  rights and remedies under the Transaction Documents.  The Issuer agrees that it will not waive  71  4131-7075-5128  timely performance or observance by the Servicer, the Depositor or the Seller of their respective  duties under the Transaction Documents if the effect thereof would adversely affect any of the  Secured Parties.  (o) Separate Legal Entity. The Issuer hereby acknowledges that the Indenture  Trustee and the Noteholders are entering into the transactions contemplated by this Indenture  and the other Transaction Documents in reliance upon the Issuer’s identity as a legal entity  separate from any other Person.  Therefore, from and after the date hereof, the Issuer shall take  all reasonable steps to continue the Issuer’s identity as a separate legal entity and to make it  apparent to third Persons that the Issuer is an entity with assets and liabilities distinct from those  of any other Person, and is not a division of any other Person.  Without limiting the generality  of the foregoing and in addition to and consistent with the covenant set forth herein, the Issuer  shall take such actions as shall be required in order to remain in compliance with Section 2.02  of the Trust Agreement.  (p) Minimum Net Worth. Have a net worth (in accordance with GAAP) of at  least 1% of the outstanding amount of the Notes.  (q) Income Tax Characterization.  For purposes of U.S. federal income, state  and local income and franchise taxes, unless otherwise required by the relevant Governmental  Authority, the Issuer will treat the Notes as debt.  Section 8.3.  Negative Covenants.  So long as any Notes are outstanding, the Issuer  shall not, unless the Required Noteholders shall otherwise consent in writing:  (a) Sales, Liens, etc.  Except pursuant to, or as contemplated by, the  Transaction Documents, the Issuer shall not sell, transfer, exchange, assign (by operation of law  or otherwise) or otherwise dispose of, or create or suffer to exist voluntarily or, for a period in  excess of ten (10) days, involuntarily any Adverse Claims upon or with respect to the Trust  Estate, any interest therein or any right to receive any amount from or in respect thereof.  (b) Claims, Deductions.  Claim any credit on, or make any deduction from  the principal or interest payable in respect of, the Notes (other than amounts properly withheld  from such payments under the Code or other applicable Law) or assert any claim against any  present or former Noteholder by reason of the payment of the taxes levied or assessed upon any  part of the Trust Estate.  (c) Mergers, Acquisitions, Sales, Subsidiaries, etc.  The Issuer shall not:  (i) be a party to any merger or consolidation, or directly or indirectly  purchase or otherwise acquire all or substantially all of the assets or any stock of any  class of, or any partnership or joint venture interest in, any other Person, except for the  Trust Estate and Permitted Investments, or sell, transfer, assign, convey or lease any of  its property and assets (or any interest therein) other than pursuant to, or as contemplated  by, this Indenture or the other Transaction Documents;  (ii) make, incur or suffer to exist an investment in, equity contribution to,  loan or advance to, or payment obligation in respect of the deferred purchase price of  





 






72  4131-7075-5128  property from, any other Person, except for Permitted Investments or pursuant to the  Transaction Documents;  (iii) create any direct or indirect Subsidiary or otherwise acquire direct or  indirect ownership of any equity interests in any other Person other than pursuant to the  Transaction Documents; or  (iv) enter into any transaction with any Affiliate except for the transactions  contemplated by the Transaction Documents and  transactions upon fair and reasonable  terms materially no less favorable to the Issuer than would be obtained in a comparable  arm’s length transaction with a Person not an Affiliate.  (d) Other Debt.  Except as provided for herein, the Issuer shall not create,  incur, assume or suffer to exist any Indebtedness whether current or funded, other than (i) the  Notes, (ii) Indebtedness of the Issuer representing fees, expenses and indemnities arising  hereunder or under the Transfer Agreement for the purchase price of the Receivables under the  Transfer Agreement and (iii) other Indebtedness permitted pursuant to Section 8.3(h).  (e) Certificate of Trust and Trust Agreement.  The Issuer shall not amend or  take any actions inconsistent with its certificate of trust or the Trust Agreement unless the  Required Noteholders have agreed to such amendment or action as authorized by the Trust  Agreement.  (f) Financing Statements.  The Issuer shall not authorize the filing of any  financing statement (or similar statement or instrument of registration under the Laws of any  jurisdiction) or statements relating to the Trust Estate other than the financing statements  authorized and filed in connection with and pursuant to the Transaction Documents.  (g) Business Restrictions.  The Issuer shall not (i) engage in any business or  transactions, or be a party to any documents, agreements or instruments, other than the  Transaction Documents or those incidental to the purposes thereof, or (ii) make any expenditure  for any assets (other than Receivables) if such expenditure, when added to other such  expenditures made during the same calendar year would, in the aggregate, exceed Ten  Thousand Dollars ($10,000); provided, however, that the foregoing will not restrict the Issuer’s  ability to pay servicing compensation as provided herein or perform its obligations under the  Transaction Documents and, so long as no Default, Event of Default or Rapid Amortization  Event shall have occurred and be continuing, the Issuer’s ability to make payments or  distributions legally made to the Issuer’s beneficiaries.  (h) ERISA Matters.  (i) To the extent applicable, the Issuer will not (A) engage or permit any of  its respective ERISA Affiliates to engage in any prohibited transaction (as defined in  Section 4975 of the Code and Section 406 of ERISA) for which an exemption is not  available or has not previously been obtained from the U.S. Department of Labor; (B)  fail to make, or permit any of the Seller, the Depositor, the initial Servicer or any of their  respective ERISA Affiliates to fail to make, any payments to any Multiemployer Plan  that the Issuer, the Depositor, the Seller, the initial Servicer or any of their respective  73  4131-7075-5128  ERISA Affiliates is required to make under the agreement relating to such  Multiemployer Plan or any Law pertaining thereto; (C) terminate, or permit any of the  Seller, the Depositor, the initial Servicer or any of their respective ERISA Affiliates to  terminate, any Pension Plan so as to result in any liability to the Issuer, the initial  Servicer, the Depositor, the Seller or any of their ERISA Affiliates; or (D) permit to  exist any occurrence of any reportable event described in Title IV of ERISA with respect  to a Pension Plan, if such prohibited transactions, failures to make payment,  terminations and reportable events described in clauses (A), (B), (C) and (D) above  would in the aggregate have a Material Adverse Effect.  (ii) The Issuer will not permit to exist any failure to satisfy the minimum  funding standard (as described in Section 302 of ERISA and Section 412 of the Code)  with respect to any Pension Plan.  (iii) The Issuer will not cause or permit, nor permit any of its ERISA  Affiliates to cause or permit, the occurrence of an ERISA Event that could result in a  Material Adverse Effect or an ERISA Lien.  (i) Name; Jurisdiction of Organization.  The Issuer will not change its name  or its jurisdiction of organization (within the meaning of the applicable UCC) without prior  written notice to the Indenture Trustee. Prior to or upon a change of its name, the Issuer will  make all filings (including filings of financing statements on form UCC-1) and recordings  necessary to maintain the perfection of the security interest of the Indenture Trustee in the Trust  Estate pursuant to this Indenture.  The Issuer further agrees that it will not become or seek to  become organized under the Laws of more than one jurisdiction.  In the event that the Issuer  desires to so change its jurisdiction of organization or change its name, the Issuer will make any  required filings and prior to actually making such change the Issuer will deliver to the Indenture  Trustee (i) an Officer’s Certificate and an Opinion of Counsel confirming that all required  filings have been made to continue the perfected interest of the Indenture Trustee in the Trust  Estate in respect of such change and (ii) copies of all such required filings with the filing  information duly noted thereon by the office in which such filings were made.  (j) Tax Matters.  The Issuer will not take any action that could cause, and  will not omit to take any action, which omission could cause, the Issuer to become taxable as a  corporation for U.S. federal income tax purposes.  (k) Accounts.  The Issuer shall not maintain any bank accounts other than the  Trust Accounts; provided, however, that the Issuer may maintain a general bank account to,  among other things, receive and hold funds distributed to it, and to pay ordinary-course  operating expenses, as applicable.  Except as set forth in the Servicing Agreement the Issuer  shall not make, nor will it permit the Seller or Servicer to make, any change in its instructions to  Obligors regarding payments to be made to the Servicer Account (as defined in the Servicing  Agreement).  The Issuer shall not add any additional Trust Accounts unless the Indenture  Trustee (subject to Section 15.1 hereto) shall have consented thereto and received a copy of any  documentation with respect thereto.  The Issuer shall not terminate any Trust Accounts or close  any Trust Accounts unless the Indenture Trustee shall have received at least thirty (30) days’  74  4131-7075-5128  prior notice of such termination and (subject to Section 15.1 hereto) shall have consented  thereto.  (l) No Claims Against Note.  Subject to Applicable Law, it shall not claim  any credit on, make any deduction from, or dispute the enforceability of payment of the  principal or interest payable (or any other amount) in respect of the Notes or assert any claim  against any present or future Purchaser, by reason of the payment of any taxes levied or  assessed upon any part of the Trust Estate.  (m) Receivables.  (i) The Issuer shall not extend, amend, waive or otherwise modify (or permit  the Servicer to extend, amend, waive or otherwise modify) the terms of any Receivable  or permit the rescission or cancellation of any Receivable, whether for any reason  relating to a negative change in the related Obligor's creditworthiness or inability to  make any payment under the Receivable or otherwise, except as permitted by the Credit  and Collection Policy or as otherwise permitted in the Servicing Agreement.  (ii) The Issuer shall not terminate or cancel (or permit the Servicer to  terminate or cancel) any Receivable prior to the end of the term of such Receivable,  except as permitted by the Credit and Collection Policy or as otherwise permitted in the  Servicing Agreement.  (iii) The Issuer shall not account for or treat (whether in the Issuer's financial  statements or otherwise) the transactions contemplated by the Transfer Agreement in  any manner other than as the sale, contribution or absolute assignment, of the  Receivables and related assets to the Issuer, other than for income tax and consolidated  accounting purposes.  Section 8.4.  Further Instruments and Acts.  The Issuer will execute and deliver such  further instruments, furnish such other information and do such further acts as may be reasonably  necessary or proper to carry out more effectively the purpose of this Indenture.  Section 8.5.  Appointment of Successor Servicer.  If the Indenture Trustee has given  notice of termination to the Servicer of the Servicer’s rights and powers pursuant to Section 5.1  of the Servicing Agreement, as promptly as possible thereafter, the Indenture Trustee shall (at the  direction of the Required Noteholders) appoint a successor servicer in accordance with  Section 6.2 of the Servicing Agreement.  Section 8.6.  Perfection Representations.  The parties hereto agree that the Perfection  Representations shall be a part of this Indenture for all purposes.  ARTICLE 9.  RAPID AMORTIZATION EVENTS AND REMEDIES  Section 9.1.  Rapid Amortization Events.  If any one of the following events shall  occur during the Revolving Period (each, a “Rapid Amortization Event”):  75  4131-7075-5128  (a) the Three-Month Average Default Percentage as of the last day of any  Monthly Period shall exceed 20.0%;  (b) the Three-Month Average Principal Payment Rate as of the last day of any  Monthly Period shall be less than 10.0%;   (c) the occurrence of a Servicer Default or an Event of Default;    (d) either (x) a failure on the part of the Depositor duly to observe or perform  any other covenants or agreements of the Depositor set forth in the Transfer Agreement or any  other Transaction Document to which it is a party, or (y) a failure on the part of the Seller duly to  observe or perform any other covenants or agreements of the Seller set forth in the Purchase  Agreement or any other Transaction Document to which it is a party, which failure, in any such  case, has a material adverse effect on the interests of the Noteholders (as reasonably determined  by the Required Noteholders) and which continues unremedied for a period of thirty (30) days  after the date on which the Depositor or Seller, as applicable, receives actual knowledge or  written notice thereof;  (e) either (x) any representation, warranty or certification made by the  Depositor in the Transfer Agreement or any other Transaction Document to which it is a party or  in any certificate delivered pursuant to the Transfer Agreement shall prove to have been  inaccurate when made or deemed made or (y) any representation, warranty or certification made  by the Seller in the Purchase Agreement or any other Transaction Document to which it is a  party or in any certificate delivered pursuant to the Purchase Agreement shall prove to have been  inaccurate when made or deemed made and, in any such case, such inaccuracy has a material  adverse effect on the Noteholders (as reasonably determined by the Required Noteholders) and  which continues unremedied for a period of thirty (30) days after the date on which the Depositor  or Seller, as applicable, receives actual knowledge or written notice thereof; or  (f) the Seller, the Depositor, the Servicer or any of their respective  Subsidiaries, individually or in the aggregate, shall fail to pay any principal of or premium or  interest on any of its Indebtedness that is outstanding in a principal amount of at least  $10,000,000 in the aggregate when the same becomes due and payable (whether by scheduled  maturity, required prepayment, acceleration, demand or otherwise), and such failure shall  continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture  or instrument relating to such Indebtedness (whether or not such failure shall have been waived  under the related agreement).  then, in the case of any event described in clause (a) through (f) above, a Rapid Amortization  Event shall occur without any notice or other action on the part of the Indenture Trustee or the  affected Holders immediately upon the occurrence of such event.  The Required Noteholders  may waive any Rapid Amortization Event and its consequences.    





 






76  4131-7075-5128  ARTICLE 10.  REMEDIES  Section 10.1.  Events of Default.  An “Event of Default”, wherever used herein,  means any one of the following events (whatever the reason for such Event of Default and  whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any  judgment, decree or order of any court or any order, rule or regulation of any administrative or  governmental body):  (i) default in the payment of (a) any interest or fees on the Notes on any  Payment Date or (b) other than as covered by clause (ii) below, the principal of or any  installment of the principal of any Notes when payable hereunder, and such default shall  continue (and shall not have been waived by the Required Noteholders) for a period of  three (3) Business Days after the date on which the Issuer receives actual knowledge or  written notice thereof;  (ii) default in the payment of the principal of or any installment of the  principal of any Notes when the same becomes due and payable on the Legal Final  Payment Date;  (iii) the filing of a decree or order for relief by a court having jurisdiction in  the premises in respect of the Issuer, the Depositor, the Seller or any substantial part of  the Trust Estate in an involuntary case under any applicable federal or state bankruptcy,  insolvency or other similar Law now or hereafter in effect, or appointing a receiver,  liquidator, assignee, custodian, trustee or similar official of the Issuer or for any  substantial part of the Trust Estate, or ordering the winding-up or liquidation of the  Issuer’s, the Depositor’s or the Seller’s affairs, and such decree or order shall remain  unstayed and in effect for a period of sixty (60) consecutive days;   (iv) the commencement by the Issuer, the Depositor or the Seller of a  voluntary case under any applicable federal or state bankruptcy, insolvency or other  similar Law now or hereafter in effect, or the consent by the Issuer, the Depositor or the  Seller to the entry of an order for relief in an involuntary case under any such Law, or  the consent by the Issuer, the Depositor or the Seller to the appointment of or taking  possession by a receiver, liquidator, assignee, custodian, trustee or similar official of the  Issuer or for any substantial part of the Trust Estate, or the making by the Issuer, the  Depositor or the Seller of any general assignment for the benefit of creditors, or the  failure by the Issuer, the Depositor or the Seller generally to pay its debts as such debts  become due, or the taking of action by the Issuer in furtherance of any of the foregoing;  (v) a failure on the part of the Issuer duly to observe or perform any other  covenants or agreements of the Issuer set forth in this Indenture or any other Transaction  Document to which it is a party, which failure, solely to the extent capable of cure,  continues unremedied for a period of fifteen (15) days after the date on which the Issuer  receives actual knowledge or written notice thereof;  77  4131-7075-5128  (vi) any representation, warranty or certification made by the Issuer in this  Indenture or in any certificate delivered pursuant to this Indenture or any other  Transaction Document to which it is a party shall prove to have been inaccurate when  made or deemed made, and, solely to the extent capable of cure, such inaccuracy  continues unremedied for a period of fifteen (15) days after the date on which the Issuer  receives actual knowledge or written notice thereof;  (vii) the Indenture Trustee shall cease to have a first-priority perfected security  interest in all or any portion of the Trust Estate;   (viii) the Issuer shall have become subject to regulation by the Securities and  Exchange Commission as an “investment company” under the Investment Company  Act;   (ix) the Issuer shall become taxable as an association or a publicly traded  partnership taxable as a corporation for U.S. federal income tax purposes;   (x) a lien shall be filed pursuant to Section 430 or Section 6321 of the Code  with regard to the Issuer and such lien shall not have been released within thirty (30)  days;  (xi) the breach of any Financial Covenant;   (xii) the occurrence of a Change in Control; or  (xiii) the Issuer shall fail to pay any principal of or premium or interest on any  of its Indebtedness when the same becomes due and payable (whether by scheduled  maturity, required prepayment, acceleration, demand or otherwise), and such failure  shall continue after the applicable grace period, if any, specified in the agreement,  mortgage, indenture or instrument relating to such Indebtedness (whether or not such  failure shall have been waived under the related agreement).  Section 10.2.  Rights of the Indenture Trustee Upon Events of Default.  (a) If and whenever an Event of Default (other than in clause (iii) and (iv) of  Section 10.1) shall have occurred and be continuing, the Indenture Trustee may, and at the  written direction of the Required Noteholders shall, cause the principal amount of all Notes  outstanding to be immediately due and payable at par, together with interest thereon.  If an  Event of Default with respect to the Issuer specified in clause (iii) or (iv) of Section 10.1 shall  occur, all unpaid principal of and accrued interest on all the Notes outstanding shall ipso facto  become and be immediately due and payable without any declaration or other act on the part of  the Indenture Trustee or any Noteholder.  If an Event of Default shall have occurred and be  continuing, the Indenture Trustee may exercise from time to time any rights and remedies  available to it under applicable Law and Section 10.4.  Any amounts obtained by the Indenture  Trustee on account of or as a result of the exercise by the Indenture Trustee of any right shall be  held by the Indenture Trustee as additional collateral for the repayment of the Secured  Obligations and shall be applied in accordance with Article 5 hereof.    78  4131-7075-5128  (b) If an Event of Default shall have occurred and be continuing, then at any  time after such declaration of acceleration of maturity has been made and before a judgment or  decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter  in this Article 10 provided, the Required Noteholders, by written notice to the Issuer and the  Indenture Trustee, may rescind and annul such declaration and its consequences if:  (i) the Issuer has paid to or deposited with the Indenture Trustee a sum  sufficient to pay  (A) all payments of principal of and interest on all Notes and all other  amounts that would then be due hereunder or upon such Notes if the Event of  Default giving rise to such acceleration had not occurred; and  (B) all sums paid by the Indenture Trustee hereunder and the  reasonable compensation, expenses, disbursements of the Indenture Trustee and  its agents and counsel; and  (ii) all Events of Default, other than the nonpayment of the principal of the  Notes that has become due solely by such acceleration, have been cured or waived as  provided in Section 10.6.  No such rescission shall affect any subsequent default or impair any right consequent  thereto.  (c) Additional Remedies.  In addition to any rights and remedies now or  hereafter granted hereunder or under applicable Law with respect to the Trust Estate, the  Indenture Trustee shall have all of the rights and remedies of a secured party under the UCC as  enacted in any applicable jurisdiction.  Section 10.3.  Collection of Indebtedness and Suits for Enforcement by Indenture  Trustee.  (a) The Issuer covenants that if (i) default is made in the payment of any  interest on any Note when the same becomes due and payable, and such default continues for a  period of five (5) days, or (ii) default is made in the payment of the principal of any Note when  the same becomes due and payable on the Legal Final Payment Date, the Issuer will pay to it,  for the benefit of the Noteholders, the whole amount then due and payable on such Notes for  principal, interest and other amounts, with interest upon the overdue principal, and, to the extent  payment at such rate of interest shall be legally enforceable, upon overdue installments of  interest, at the Class A Note Rate and in addition thereto such further amount as shall be  sufficient to cover the costs and expenses of collection, including the reasonable compensation,  expenses, disbursements and advances of the Indenture Trustee and its agents and counsel.  (b) If an Event of Default occurs and is continuing, the Indenture Trustee  may (in its discretion) and, at the written direction of the Required Noteholders, shall proceed to  protect and enforce its rights and the rights of the Secured Parties by such appropriate  Proceedings to protect and enforce any such rights, whether for the specific enforcement of any  covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or  79  4131-7075-5128  to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by  this Indenture or by Law; provided, however, that the Indenture Trustee shall sell or otherwise  liquidate the Trust Estate or any portion thereof only in accordance with Section 10.4(d).  (c) In any Proceedings brought by the Indenture Trustee (and also any  Proceedings involving the interpretation of any provision of this Indenture), the Indenture  Trustee shall be held to represent all the Secured Parties, and it shall not be necessary to make  any such Person a party to any such Proceedings.  (d) In case there shall be pending, relative to the Issuer or any other obligor  upon the Notes or any Person having or claiming an ownership interest in the Trust Estate,  Proceedings under Title 11 of the United States Code or any other applicable federal or state  bankruptcy, insolvency or other similar Law, or in case a receiver, assignee or trustee in  bankruptcy or reorganization, liquidator or similar official shall have been appointed for or  taken possession of the Issuer or its property or such other obligor or Person, or in case of any  other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes, or  to the creditors or property of the Issuer or such other obligor, the Indenture Trustee,  irrespective of whether the principal or other amount of any Notes shall then be due and payable  as therein expressed or by declaration or otherwise and irrespective of whether the Indenture  Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled  and empowered, by intervention in such Proceedings or otherwise:  (i) to file a claim or claims for the whole amount of principal, interest and  other amounts owing and unpaid in respect of the Notes and to file such other papers or  documents and take such actions as may be necessary or advisable in order to have the  claims of the Indenture Trustee (including any claim for reasonable compensation to the  Indenture Trustee and each predecessor Indenture Trustee, and their respective agents,  attorneys and counsel, and for reimbursement of all expenses and liabilities incurred,  and all advances made, by the Indenture Trustee and each predecessor Indenture  Trustee, except as a result of negligence, bad faith or willful misconduct) and of the  Secured Parties allowed in such Proceedings;  (ii) unless prohibited by applicable Law, to vote on behalf of the Secured  Parties in any election of a trustee, a standby trustee or Person performing similar  functions in any such Proceedings;  (iii) to collect and receive any moneys or other property payable or  deliverable on any such claims and to distribute all amounts received with respect to the  claims of the Secured Parties and of the Indenture Trustee on their behalf; and  (iv) to file such proofs of claim and other papers or documents as may be  necessary or advisable in order to have the claims of the Indenture Trustee (including  any claim for the reasonable compensation, expenses, disbursements and advances of  the Indenture Trustee, its agents and counsel) or the Secured Parties allowed in any  judicial Proceedings relative to the Issuer, its creditors and its property;  





 






80  4131-7075-5128  and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is  hereby authorized by each of such Secured Parties to make payments to the Indenture Trustee,  and, in the event that the Indenture Trustee shall consent to the making of payments directly to  such Secured Parties, to pay to the Indenture Trustee such amounts as shall be sufficient to cover  reasonable compensation, expenses, disbursements and any other amounts due the Indenture  Trustee under Section 11.6 and 11.17 to the Indenture Trustee, each predecessor Indenture  Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities  incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture  Trustee except as a result of negligence, bad faith or willful misconduct. To the extent that the  payment of any such compensation, expenses, disbursements and advances of the Indenture  Trustee, its agents and counsel, and any other amounts due the Indenture Trustee under Section  11.6 and 11.17 out of the estate in any Proceeding, shall be denied for any reason, payment of the  same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends,  money, notes and other properties which the Secured Parties may be entitled to receive in such  Proceeding whether in liquidation or under any plan of reorganization or arrangement or  otherwise.   (e) Nothing herein contained shall be deemed to authorize the Indenture  Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Secured Party  any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the  rights of any Secured Party or to authorize the Indenture Trustee to vote in respect of the claim  of any Secured Party in any such Proceeding except, as aforesaid, to vote for the election of a  trustee in bankruptcy or similar Person.  (f) All rights of action and of asserting claims under this Indenture or under  any of the Notes may be enforced by the Indenture Trustee without the possession of any of the  Notes or the production thereof in any Proceedings relative thereto, and any such action or  Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an  express trust, and any recovery of judgment, subject to the payment of the expenses,  disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee  and their respective agents and attorneys, shall be for the Secured Parties.  Section 10.4.  Remedies.  If an Event of Default shall have occurred and be  continuing, the Indenture Trustee may and, at the written direction of the Required Noteholders,  shall do one or more of the following:  (a) institute Proceedings in its own name and as trustee of an express trust  for the collection of all amounts then payable under the Transaction Documents, enforce any  judgment obtained, and collect from the Issuer and any other obligor under the Transaction  Documents moneys adjudged due;  (b) institute Proceedings from time to time for the complete or partial  foreclosure of this Indenture with respect to the Trust Estate;  (c) subject to the limitations set forth in clause (d) below, exercise any  remedies of a secured party under the UCC and take any other appropriate action to protect and  enforce the rights and remedies of the Indenture Trustee and the Secured Parties; and  81  4131-7075-5128  (d) sell the Trust Estate or any portion thereof or rights or interest therein, at  one or more public or private sales called and conducted in any manner permitted by Law;  provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Trust  Estate following an Event of Default unless:  (i) the Holders of 100% of the outstanding Notes direct such sale and  liquidation,  (ii) the proceeds of such sale or liquidation distributable to the Noteholders  are sufficient to discharge in full all amounts then due and unpaid with respect to all  outstanding Notes for principal and interest and any other amounts due Noteholders, or  (iii) the Indenture Trustee determines that the proceeds of the Trust Estate  will not continue to provide sufficient funds for the payment of principal of and interest  on all outstanding Notes as such amounts would have become due if such Notes had not  been declared due and payable and the Required Noteholders direct such sale and  liquidation.  In determining such sufficiency or insufficiency with respect to clauses (d)(ii) and  (d)(iii), the Indenture Trustee may, but need not, obtain and rely upon an opinion of an  Independent investment banking or accounting firm of national reputation as to the feasibility of  such proposed action and as to the sufficiency of the Receivables in the Trust Estate for such  purpose.  Section 10.5.  [Reserved].  Section 10.6.  Waiver of Past Events.  If an Event of Default shall have occurred and  be continuing, prior to the declaration of the acceleration of the maturity of the Notes as provided  in Section 10.2(a), the Required Noteholders may waive any past Default or Event of Default  and its consequences except a Default in payment of principal of any of the Notes.  In the case of  any such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored  to their former positions and rights hereunder, respectively; but no such waiver shall extend to  any subsequent or other Default or impair any right consequent thereto.  Upon any such waiver, such Default shall cease to exist and be deemed to have been  cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to  have been cured and not to have occurred, for every purpose of this Indenture; but no such  waiver shall extend to any subsequent or other Default or Event of Default or impair any right  consequent thereto.  Section 10.7.  Limitation on Suits.  No Noteholder have any right to institute any  Proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a  receiver or trustee, or for any other remedy hereunder, unless:  (i) such Noteholder or Certificateholder previously has given written notice  to the Indenture Trustee of a continuing Event of Default;  82  4131-7075-5128  (ii) the Holders of not less than 25% of the outstanding principal amount of  all Notes have made written request to the Indenture Trustee to institute such Proceeding  in respect of such Event of Default in its own name as Indenture Trustee hereunder;  (iii) such Noteholder has offered and provided to the Indenture Trustee  indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in  complying with such request;  (iv) the Indenture Trustee for sixty (60) days after its receipt of such notice,  request and offer of indemnity has failed to institute such Proceedings; and  (v) no direction inconsistent with such written request has been given to the  Indenture Trustee during such sixty (60) day period by the Required Noteholders;  it being understood and intended that no one or more Noteholder shall have any right in any  manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb  or prejudice the rights of any other Noteholder or to obtain or to seek to obtain priority or  preference over any other Noteholder or to enforce any right under this Indenture, except in the  manner herein provided.  The Indenture Trustee may maintain a Proceeding even if it does not possess any of the  Notes or does not produce any of them in the Proceeding, and any such Proceeding instituted by  the Indenture Trustee shall be in its own name as trustee. All remedies are cumulative to the  extent permitted by Law.  In the event the Indenture Trustee shall receive conflicting or inconsistent requests and  indemnity from two or more groups of Secured Parties, each representing less than the Required  Noteholders, the Indenture Trustee shall proceed in accordance with the request of the greater  majority of the outstanding principal amount of the Notes, as determined by reference to such  requests.  Section 10.8.  Unconditional Rights of Holders to Receive Payment; Withholding  Taxes.  (a) Notwithstanding any other provision of this Indenture except as provided  in Section 10.8(b) and (c), the right of any Noteholder to receive payment of principal, interest  or other amounts, if any, on the Note, on or after the respective due dates expressed in the Note  or in this Indenture (or, in the case of a Decrease, on or after the date of such Decrease), or to  bring suit for the enforcement of any such payment on or after such respective dates, is absolute  and unconditional and shall not be impaired or affected without the consent of the Noteholder.  (b) Promptly upon request, each Noteholder shall provide to the Indenture  Trustee and/or the Issuer (or other person responsible for withholding of taxes, including but not  limited to FATCA Withholding Tax, or delivery of information under FATCA) with the Tax  Information.  (c) The Paying Agent shall (or if the Indenture Trustee is not the Paying  Agent, the Indenture Trustee shall cause the Paying Agent to execute and deliver to the  83  4131-7075-5128  Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture  Trustee that such Paying Agent shall) comply with the provisions of this Indenture applicable to  it, comply with all requirements of the Code with respect to the withholding from any payments  to Noteholders, including FATCA Withholding Tax (including obtaining and retaining from  Persons entitled to payments with respect to the Notes any Tax Information and making any  withholdings with respect to the Notes as required by the Code (including FATCA) and paying  over such withheld amounts to the appropriate Governmental Authority), comply with respect  to any applicable reporting requirements in connection with any payments to Noteholders, and,  upon request, provide any Tax Information to the Issuer.  Section 10.9.  Restoration of Rights and Remedies.  If any Noteholder has instituted  any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has  been discontinued or abandoned for any reason or has been determined adversely to the  Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture  Trustee, the Noteholders shall, subject to any determination in such Proceeding, be restored  severally and respectively to their former positions hereunder, and thereafter all rights and  remedies of the Indenture Trustee and the Noteholders shall continue as though no such  Proceeding had been instituted.  Section 10.10.  [Reserved].    Section 10.11.  Priorities.  Following the declaration of an Event of Default or a  Rapid Amortization Event pursuant to Section 9.1 or 10.2, all amounts in the Collection  Account, including any money or property collected pursuant to Section 10.4 (after deducting the  reasonable costs and expenses of such collection), shall be applied by the Indenture Trustee on  the related Payment Date in accordance with the provisions of Article 5.  The Indenture Trustee may fix a record date and payment date for any payment to  Secured Parties pursuant to this Section.  At least fifteen (15) days before such record date the  Issuer shall mail to each Secured Party and the Indenture Trustee a notice that states the record  date, the payment date and the amount to be paid.  Section 10.12.  Undertaking for Costs.  All parties to this Indenture agree, and each  Secured Party shall be deemed to have agreed, that any court may in its discretion require, in any  suit for the enforcement of any right or remedy under this Indenture, or in any suit against the  Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing  by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such  court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against  any party litigant in such suit, having due regard to the merits and good faith of the claims or  defenses made by such party litigant; but the provisions of this Section shall not apply to (a) any  suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of  Noteholders, in each case holding in the aggregate more than 10% of the aggregate outstanding  principal balance of the Notes on the date of the filing of such action, or (c) any suit instituted by  any Noteholder for the enforcement of the payment of principal of or interest on any Note on or  after the respective due dates expressed in such Note and in this Indenture (or, in the case of a  Decrease, on or after the date of such Decrease).  





 






84  4131-7075-5128  Section 10.13.  Rights and Remedies Cumulative.  No right or remedy herein  conferred upon or reserved to the Indenture Trustee or to the Secured Parties is intended to be  exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted  by Law, be cumulative and in addition to every other right and remedy given hereunder or now  or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right  or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of  any other appropriate right or remedy.  Section 10.14.  Delay or Omission Not Waiver.  No delay or omission of the  Indenture Trustee or any Secured Party to exercise any right or remedy accruing upon any  Default or Event of Default shall impair any such right or remedy or constitute a waiver of any  such Default or Event of Default or an acquiescence therein.  Every right and remedy given by  this Article 10 or by Law to the Indenture Trustee or to the Secured Parties may be exercised  from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the  Secured Parties, as the case may be.  Section 10.15.  Control by Noteholders.  The Required Noteholders shall have the  right to direct the time, method and place of conducting any Proceeding for any remedy available  to the Indenture Trustee with respect to the Notes or exercising any trust or power conferred on  the Indenture Trustee; provided that:  (i) such direction shall not be in conflict with any Law or with this  Indenture;  (ii) subject to the express terms of Section 10.4, any direction to the  Indenture Trustee to sell or liquidate the Receivables shall be by the Holders of Notes  representing not less than 100% of the aggregate outstanding principal balance of all the  Notes;   (iii) the Indenture Trustee shall have been provided with indemnity  satisfactory to it; and  (iv) the Indenture Trustee may take any other action deemed proper by the  Indenture Trustee that is not inconsistent with such direction;  provided, however, that, subject to Section 11.1, the Indenture Trustee need not take any action  that it determines might involve it in liability or might materially adversely affect the rights of  any Noteholders not consenting to such action.  Section 10.16.  Waiver of Stay or Extension Laws.  The Issuer covenants (to the  extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any  manner whatsoever, claim or take the benefit or advantage of, any stay or extension Law  wherever enacted, now or at any time hereafter in force, that may affect the covenants or the  performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby  expressly waives all benefit or advantage of any such Law, and covenants that it will not hinder,  delay or impede the execution of any power herein granted to the Indenture Trustee, but will  suffer and permit the execution of every such power as though no such Law had been enacted.  85  4131-7075-5128  Section 10.17.  Action on Notes.  The Indenture Trustee’s right to seek and recover  judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or  application of any other relief under or with respect to this Indenture.  Neither the Lien of this  Indenture nor any rights or remedies of the Indenture Trustee or the Secured Parties shall be  impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the  levy of any execution under such judgment upon any portion of the Trust Estate or upon any of  the assets of the Issuer.  Section 10.18.  Performance and Enforcement of Certain Obligations.  (a) The Issuer agrees to take all such lawful action as is necessary and  desirable to compel or secure the performance and observance by the Seller, the Depositor, the  Depositor Receivables Trustee, the Parent and the Servicer, as applicable, of each of their  obligations to the Issuer under or in connection with the Transaction Documents in accordance  with the terms thereof, and to exercise any and all rights, remedies, powers and privileges  lawfully available to the Issuer under or in connection with the Transaction Documents,  including the transmission of notices of default on the part of the Seller, the Depositor, the  Depositor Receivables Trustee, the Parent or the Servicer thereunder and the institution of legal  or administrative actions or Proceedings to compel or secure performance by the Seller, the  Depositor, the Depositor Receivables Trustee, the Parent or the Servicer of each of their  obligations under the Transaction Documents.  (b) If an Event of Default has occurred and is continuing, the Indenture  Trustee may, and, at the direction (which direction shall be in writing) of the Required  Noteholders shall, subject to Section 10.2(b), exercise all rights, remedies, powers, privileges  and claims of the Issuer against the Seller, the Parent or the Servicer under or in connection with  the Transaction Documents, including the right or power to take any action to compel or secure  performance or observance by the Seller, the Parent or the Servicer of each of their obligations  to the Issuer thereunder and to give any consent, request, notice, direction, approval, extension  or waiver under the Transaction Documents, and any right of the Issuer to take such action shall  be suspended.  (c) The Issuer may contract with other Persons, including the Administrator,  to assist it in performing its duties under this Indenture, and any performance of such duties by  the Administrator or another Person identified to the Indenture Trustee in an Officer’s  Certificate of the Administrator shall satisfy the obligations of the Issuer with respect thereto.   Initially, the Issuer has contracted with the Administrator, and the Administrator has agreed, to  the extent specified in the Trust Agreement, to assist the Issuer in performing its duties under  this Indenture.  Section 10.19.  Reassignment of Surplus.  Promptly after termination of this  Indenture and the payment in full of the Secured Obligations, any proceeds of all the Receivables  and other assets in the Trust Estate received or held by the Indenture Trustee shall be turned over  to the Issuer and the Receivables and other assets in the Trust Estate shall be released to the  Issuer by the Indenture Trustee without recourse to the Indenture Trustee and without any  representations, warranties or agreements of any kind.  86  4131-7075-5128  ARTICLE 11.  THE INDENTURE TRUSTEE  Section 11.1.  Duties of the Indenture Trustee.  (a) If an Event of Default has occurred and is continuing, and of which a  Trust Officer of the Indenture Trustee has written notice, the Indenture Trustee shall exercise  such of the rights and powers vested in it by this Indenture and any related document, and use  the same degree of care and skill in their exercise, as a prudent person would exercise or use  under the circumstances in the conduct of such person’s own affairs; provided, however, that  the Indenture Trustee shall have no liability in connection with any action or inaction taken, or  not taken, by it upon the deemed occurrence of an Event of Default of which a Trust Officer has  not received written notice; and provided, further that the preceding sentence shall not have the  effect of insulating the Indenture Trustee from liability arising out of the Indenture Trustee’s  negligence or willful misconduct.  (b) Except during the occurrence and continuance of an Event of Default of  which a Trust Officer of the Indenture Trustee has written notice:  (i) the Indenture Trustee undertakes to perform only those duties that are  specifically set forth in this Indenture and no others, and no implied covenants or  obligations shall be read into this Indenture or any related document against the  Indenture Trustee; and  (ii) in the absence of bad faith on its part, the Indenture Trustee may  conclusively rely (without independent confirmation, verification, inquiry or  investigation of the contents thereof), as to the truth of the statements and the  correctness of the opinions expressed therein, upon certificates or opinions furnished to  the Indenture Trustee and conforming to the requirements of this Indenture; provided,  however, in the case of any such certificates or opinions which by any provision hereof  are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee  shall examine the certificates and opinions to determine whether or not they conform to  the requirements of this Indenture and, if applicable, the Transaction Documents to  which the Indenture Trustee is a party, provided, further, that the Indenture Trustee shall  not be responsible for the accuracy or content of any of the aforementioned documents  and the Indenture Trustee shall have no obligation to verify or recompute any numeral  information provided to it pursuant to the Transaction Documents.  (c) No provision of this Indenture shall be construed to relieve the Indenture  Trustee from liability for its own negligent action, its own negligent failure to act, or its own  willful misconduct except that:  (i) this clause does not limit the effect of clause (b) of this Section 11.1;  (ii) the Indenture Trustee shall not be personally liable for any error of  judgment made in good faith by a Trust Officer or Trust Officers of the Indenture  Trustee, unless it is conclusively determined by the final judgment of a court of  87  4131-7075-5128  competent jurisdiction, no longer subject to appeal or review that the Indenture Trustee  was negligent in ascertaining the pertinent facts;  (iii) the Indenture Trustee shall not be liable with respect to any action it takes  or omits to take in good faith in accordance with a direction received by it pursuant to  the terms of the Indenture or the Transaction Documents;  (iv) the Indenture Trustee shall not be charged with knowledge of any failure  by the Servicer referred to in clauses (a)-(g) of Section 2.04 of the Servicing Agreement  unless a Trust Officer of the Indenture Trustee obtains actual knowledge of such failure  or the Indenture Trustee receives written notice of such failure from the Servicer or any  Holders of Notes evidencing not less than 10% of the aggregate outstanding principal  balance of the Notes adversely affected thereby.  (d) Notwithstanding anything to the contrary contained in this Indenture or  any of the Transaction Documents, no provision of this Indenture shall require the Indenture  Trustee to expend or risk its own funds or otherwise incur any financial liability in the  performance of any of its duties hereunder or in the exercise of any of its rights and powers, if  there is reasonable ground (as determined by the Indenture Trustee in its sole discretion) for  believing that the repayment of such funds or adequate indemnity against such risk is not  reasonably assured to it by the security afforded to it by the terms of this Indenture.  (e) Every provision of this Indenture relating to the conduct or affecting the  liability of or affording protection to the Indenture Trustee shall be subject to the provisions of  this Article and to the provisions of the TIA (if this Indenture is required to be qualified under  the TIA).  (f) The Indenture Trustee shall, and hereby agrees that it will, perform all of  the obligations and duties required of it under the Servicing Agreement.  (g) Without limiting the generality of this Section 11.1 and subject to the  other provisions of this Indenture, the Indenture Trustee shall have no duty (i) to see to any  recording, filing or depositing of this Indenture or any agreement referred to herein, or to see to  the maintenance of any such recording or filing or depositing or to any recording, refiling or  redepositing of any thereof or to see to the validity, perfection, continuation, or value of any lien  or security interest created herein or under any other Transaction Document, (ii) to see to the  payment or discharge of any tax, assessment or other governmental Lien owing with respect to,  assessed or levied against any part of the Issuer, (iii) to confirm or verify the contents of any  reports or certificates delivered to the Indenture Trustee pursuant to this Indenture or the  Servicing Agreement believed by the Indenture Trustee to be genuine and to have been signed  or presented by the proper party or parties, (iv) to determine whether any Receivables is an  Eligible Receivable or to inspect the Receivables at any time or ascertain or inquire as to the  performance or observance of any of the Issuer’s, the Seller’s, the Parent’s or the Servicer’s  representations, warranties or covenants under the Servicer Transaction Documents, or (v) the  acquisition or maintenance of any insurance.  The Indenture Trustee shall be authorized to, but  shall in no event have any duty or responsibility to, file any financing or continuation statements  





 






88  4131-7075-5128  or record any documents or instruments in any public office at any time or times or otherwise  perfect or maintain any security interest in the Trust Estate.  (h) Subject to Section 11.1(d), in the event that the Paying Agent or the  Transfer Agent and Registrar (if other than the Indenture Trustee) shall fail to perform any  obligation, duty or agreement in the manner or on the day required to be performed by the  Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Indenture, the  Indenture Trustee shall be obligated as soon as practicable upon written notice to a Trust Officer  thereof and receipt of appropriate records and information, if any, to perform such obligation,  duty or agreement in the manner so required.  (i) No provision of this Indenture shall be construed to require the Indenture  Trustee to perform, or accept any responsibility for the performance of, the obligations of the  Servicer hereunder.  (j) Subject to Section 11.4, all moneys received by the Indenture Trustee  shall, until used or applied as herein provided, be held in trust for the purposes for which they  were received, but need not be segregated from other funds except to the extent required by Law  or the Transaction Documents.  (k) Except as otherwise required or permitted by the TIA (if this Indenture is  required to be qualified under the TIA), nothing contained herein shall be deemed to authorize  the Indenture Trustee to engage in any business operations or any activities other than those set  forth in this Indenture.  Specifically, the Indenture Trustee shall have no authority to engage in  any business operations, acquire any assets other than those specifically included in the Trust  Estate under this Indenture or otherwise vary the assets held by the Issuer.  Similarly, the  Indenture Trustee shall have no discretionary duties other than performing those ministerial acts  set forth above necessary to accomplish the purpose of this Indenture.  (l) The Indenture Trustee shall not be required to take notice or be deemed  to have notice or knowledge of any Default or Event of Default unless a Trust Officer of the  Indenture Trustee shall have received written notice thereof.  In the absence of receipt of such  notice, the Indenture Trustee may conclusively assume that there is no Default or Event of  Default.  (m) [Reserved].  (n) The Indenture Trustee shall not be liable with respect to any action taken  or omitted to be taken by it in good faith in accordance with the direction of the Issuer, the  Servicer and/or a specified percentage of Noteholders under circumstances in which such  direction is required or permitted by the terms of this Indenture or other Transaction Document.  (o) The enumeration of any permissive right or power herein or in any other  Transaction Document available to the Indenture Trustee shall not be construed to be the  imposition of a duty.  (p) The Indenture Trustee shall not be liable for interest on any money  received by it except as the Indenture Trustee may separately agree in writing with the Issuer.  89  4131-7075-5128  (q) Every provision of the Indenture or any related document relating to the  conduct or affecting the liability of or affording protection to the Indenture Trustee shall be  subject to the provisions of this Article.  (r) The Indenture Trustee shall not be responsible for or have any liability  for the collection of any Receivables or the recoverability of any amounts from an Obligor or  any other Person owing any amounts as a result of any Receivables, including after any default  of any Obligor or any other such Person.  Section 11.2.  Rights of the Indenture Trustee.  Except as otherwise provided by  Section 11.1:  (a) The Indenture Trustee may conclusively rely on and shall be protected in  acting upon or refraining from acting upon and in accord with, without any duty to verify the  contents or recompute any calculations therein, any document (whether in its original or  facsimile form), including the Monthly Servicer Report, the annual Servicer’s certificate, the  monthly payment instructions and notification to the Indenture Trustee, the Monthly Statement,  any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement,  instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or  document, believed by it to be genuine and to have been signed by or presented by the proper  Person.  Without limiting the Indenture Trustee’s obligations to examine pursuant to Section  11.1(b)(ii), the Indenture Trustee need not investigate any fact or matter stated in the document.  (b) Before the Indenture Trustee acts or refrains from acting, the Indenture  Trustee may require an Officer’s Certificate or an Opinion of Counsel or consult with counsel  of its selection and the Officer’s Certificate or the advice of such counsel or any Opinion of  Counsel shall be full and complete authorization and protection from liability in respect of any  action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.  (c) The Indenture Trustee may execute any of the trusts or powers hereunder  or perform any duties hereunder either directly or by or through agents or attorneys, custodians  and nominees and the Indenture Trustee shall not be liable for any misconduct or negligence on  the part of, or for the supervision of, any such agent or attorneys, custodian or nominee so long  as such agent, custodian or nominee is appointed with due care.  (d) The Indenture Trustee shall not be liable for any action it takes or omits  to take in good faith which it believes to be authorized or within its rights or powers conferred  upon it by this Indenture; provided, however, that the Indenture Trustee’s conduct does not  constitute willful misconduct or negligence.  (e) The Indenture Trustee shall be under no obligation to exercise any of the  rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation  hereunder or in relation hereto, at the request, order or direction of any of the Noteholders,  pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the  Indenture Trustee security or indemnity satisfactory to the Indenture Trustee (in its sole  discretion) against the costs, expenses (including attorneys’ fees and expenses) and liabilities  which may be incurred therein or thereby; nothing contained herein shall, however, relieve the  90  4131-7075-5128  Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not  been cured or waived), to exercise such of the rights and powers vested in it by this Indenture,  and to use the same degree of care and skill in their exercise as a prudent person would exercise  or use under the circumstances in the conduct of such person’s own affairs.  (f) The Indenture Trustee shall not be bound to make any investigation into  the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report,  notice, request, consent, order, approval, bond or other paper or document (including, the  Monthly Servicer’s Report, the annual Servicer’s certificate, the monthly payment instructions  and notification to the Indenture Trustee or the Monthly Statement), unless requested in writing  so to do by the Holders of Notes evidencing not less than 25% of the aggregate outstanding  principal balance of the Notes, but the Indenture Trustee may, but is not obligated to, make such  further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture  Trustee shall determine to make such further inquiry or investigation, it shall be entitled to  examine the books, records and premises of the Issuer, personally or by agent or attorney at the  sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of  such inquiry or investigation; provided, however, that if the payment within a reasonable time to  the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the  making of such investigation is, in the opinion of the Indenture Trustee, not assured to the  Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture  Trustee may require indemnity satisfactory to it against such cost, expense or liability as a  condition to so proceeding; the reasonable expense of every such examination shall be paid by  the Person making such request, or, if paid by the Indenture Trustee, shall be reimbursed by the  Person making such request.  (g) The Indenture Trustee shall have no liability for the selection of  Permitted Investments and shall not be liable for any losses or liquidation penalties in  connection with Permitted Investments, unless such losses or liquidation penalties were incurred  through the Indenture Trustee’s own willful misconduct or negligence.  The Indenture Trustee  shall have no obligation to invest or reinvest any amounts except as directed by the Issuer (or  the Servicer) in accordance with this Indenture.  Notwithstanding the foregoing, if the Servicer  is removed or replaced, the selected Permitted Investment for investment or reinvestment as  provided in this Indenture shall be as in effect on the date of such removal or replacement until  new directions are given by the successor Servicer.  (h) The Indenture Trustee shall not be liable for the acts or omissions of any  successor to the Indenture Trustee so long as such acts or omissions were not the result of the  negligence, bad faith or willful misconduct of the predecessor Indenture Trustee.  (i) The rights, privileges, protections, immunities and benefits given to the  Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and  shall be enforceable by, the Indenture Trustee and the entity serving as Indenture Trustee (a) in  each of its capacities hereunder and under the Transaction Documents, and to each agent,  custodian and other Person employed to act hereunder or thereunder and (b) in each document  to which it is a party (in any capacity) whether or not specifically set forth herein or therein;  provided that the Securities Intermediary shall comply with Section 5.3.  91  4131-7075-5128  (j) Except as may be required by Sections 11.1(b)(ii), 11.2(a) and 11.2(f),  the Indenture Trustee shall not be required to make any initial or periodic examination of any  documents or records related to the Trust Estate for the purpose of establishing the presence or  absence of defects, the compliance by the Seller, the Parent or the Servicer with their respective  representations and warranties or for any other purpose.  (k) Without limiting the Indenture Trustee’s obligation to examine pursuant  to Section 11.1(b)(ii), the Indenture Trustee shall not be bound to make any investigation into  (i) the performance or observance by the Issuer, any Servicer or any other Person of any of the  covenants, agreements or other terms or conditions set forth in this Indenture or in any related  document, (ii) the occurrence of any default, or the validity, enforceability, effectiveness or  genuineness of this Indenture, any related document or any other agreement, instrument or  document, (iii) the creation, perfection or priority of any Lien purported to be created by this  Indenture or any related document, (iv) the value or the sufficiency of any collateral or (v) the  satisfaction of any condition set forth in this Indenture or any related document, but the  Indenture Trustee, in its discretion, may make such further inquiry or investigation into such  facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such  further inquiry or investigation, it shall be entitled to examine the books, records and premises  of the Issuer or any Servicer, personally or by agent or attorney, and shall incur no liability of  any kind by reason of such inquiry or investigation.  (l) In no event shall the Indenture Trustee be responsible or liable for  special, indirect, punitive or consequential loss or damage of any kind whatsoever (including,  but not limited to, loss of profit), even if the Indenture Trustee has been advised of the  likelihood of such loss or damage and regardless of the form of action.  (m) The Indenture Trustee may, from time to time, request that the Issuer and  any other applicable party deliver a certificate (upon which the Indenture Trustee may  conclusively rely) setting forth the names of individuals and/or titles of officers authorized at  such time to take specified actions pursuant to this Indenture or any related document together  with a specimen signature of such authorized officers; provided, however, that from time to  time, the Issuer or such other applicable party may, by delivering to the Indenture Trustee a  revised certificate, change the information previously provided by it pursuant to the Indenture,  but the Indenture Trustee shall be entitled to conclusively rely on the then current certificate  until receipt of a superseding certificate.  (n) The right of the Indenture Trustee to perform any discretionary act  enumerated in this Indenture or any related document shall not be construed as a duty.  (o) Except for notices, reports and other documents expressly required to be  furnished to the Holders by the Indenture Trustee hereunder, the Indenture Trustee shall not  have any duty or responsibility to provide any Holder with any other information concerning the  Issuer, the servicer or any other parties to any related documents which may come into the  possession of the Indenture Trustee or any of its officers, directors, employees, agents,  representatives or attorneys-in-fact.  





 






92  4131-7075-5128  (p) If the Indenture Trustee requests instructions from the Issuer, the  Administrator or the Holders with respect to any action or omission in connection with this  Indenture, the Indenture Trustee shall be entitled (without incurring any liability therefor) to  refrain from taking such action and continue to refrain from acting unless and until the  Indenture Trustee shall have received written instructions from the Issuer, the Administrator or  the Holders, as applicable, with respect to such request.  (q) In order to comply with laws, rules, regulations and executive orders in  effect from time to time applicable to banking institutions, including those relating to the  funding of terrorist activities and money laundering (“Applicable Law”), the Indenture Trustee  is required to obtain, verify and record certain information relating to individuals and entities  which maintain a business relationship with the Indenture Trustee.  Accordingly, each of the  parties agrees to provide to the Indenture Trustee upon its request from time to time such  identifying information and documentation as may be available for such party in order to enable  the Indenture Trustee to comply with Applicable Law.  (r) In no event shall the Indenture Trustee be liable for any failure or delay in  the performance of its obligations under this Indenture or any related documents because of  circumstances beyond the Indenture Trustee’s control, including, but not limited to, a failure,  termination, or suspension of a clearing house, securities depositary, settlement system or  central payment system in any applicable part of the world or acts of God, flood, war (whether  declared or undeclared), civil or military disturbances or hostilities, nuclear or natural  catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire,  riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action,  including any laws, ordinances, regulations or the like (whether domestic, federal, state, county  or municipal or foreign) which delay, restrict or prohibit the providing of the services  contemplated by this Indenture or any related documents, or the unavailability of  communications or computer facilities, the failure of equipment or interruption of  communications or computer facilities, or the unavailability of the Federal Reserve Bank wire  or telex or other wire or communication facility, or any other causes beyond the Indenture  Trustee’s control whether or not of the same class or kind as specified above.  (s) The Indenture Trustee shall not be liable for failing to comply with its  obligations under this Indenture in so far as the performance of such obligations is dependent  upon the timely receipt of instructions and/or other information from any other Person which  are not received or not received by the time required.  (t) The Indenture Trustee shall be fully justified in failing or refusing to take  any action under this Indenture or any other related document if such action (A) would, in the  reasonable opinion of the Indenture Trustee, in good faith (which may be based on the advice or  opinion of counsel), be contrary to applicable Law, this Indenture or any other related  document, or (B) is not provided for in the Indenture or any other related document.  (u) The Indenture Trustee shall not be required to take any action under this  Indenture or any related document if taking such action (A) would subject the Indenture Trustee  to a tax in any jurisdiction where it is not then subject to a tax, or (B) would require the  Indenture Trustee to qualify to do business in any jurisdiction where it is not then so qualified.  93  4131-7075-5128  (v) Notwithstanding anything contained in this Indenture or any other  Transaction Document to the contrary, the Indenture Trustee shall be under no obligation (i) to  monitor, determine or verify the unavailability or cessation of One-Month LIBOR (or other  applicable benchmark interest rate), or whether or when there has occurred, or to give notice to  any other Person of the occurrence of, any date on which such rate may be required to be  transitioned or replaced in accordance with the terms of the Transaction Documents, applicable  law or otherwise, (ii) to select, determine or designate any replacement to such rate, or other  successor or replacement benchmark index, or whether any conditions to the designation of  such a rate have been satisfied, (iii) to select, determine or designate any modifier to any  replacement or successor index, or (iv) to determine whether or what any amendments to this  Indenture or the other Transaction Documents are necessary or advisable, if any, in connection  with any of the foregoing.  (w) The Indenture Trustee shall neither be responsible for, nor chargeable  with, knowledge of the terms and conditions of any other agreement, instrument, or document  other than this Indenture or any other Transaction Document to which it is a party, whether or  not an original or a copy of such agreement has been provided to the Indenture Trustee.  (x) The Indenture Trustee shall have no obligation or duty to determine or  otherwise monitor any Person’s compliance with the Credit Risk Retention Rules or any other  laws, rules or regulations of any other jurisdiction related to risk retention.  Section 11.3.  Indenture Trustee Not Liable for Recitals in Notes.  The Indenture  Trustee assumes no responsibility for the correctness of the recitals contained in this Indenture  and in the Notes (other than the signature and authentication of the Indenture Trustee on the  Notes).  Except as set forth in Section 11.16, the Indenture Trustee makes no representations as  to the validity or sufficiency of this Indenture or of the Notes (other than the signature and  authentication of the Indenture Trustee on the Notes) or of any asset of the Trust Estate or related  document.  The Indenture Trustee shall not be accountable for the use or application by the  Issuer or the Seller of any of the Notes or of the proceeds of such Notes, or for the use or  application of any funds paid to the Seller or to the Issuer in respect of the Trust Estate or  deposited in or withdrawn from the Collection Account or the Reserve Account by the Servicer.  Section 11.4.  Individual Rights of the Indenture Trustee; Multiple Capacities.  The  Indenture Trustee in its individual or any other capacity may become the owner or pledgee of  Notes and may otherwise deal with the Issuer or an Affiliate of the Issuer with the same rights it  would have if it were not Indenture Trustee.  Any Paying Agent, Transfer Agent, Certificate  Registrar and Registrar, co-registrar or co-paying agent may do the same with like rights.  However, the Indenture Trustee must comply with Sections 11.9 and 11.11.  It is expressly  acknowledged, agreed and consented to that Wilmington Trust, National Association will be  acting in the capacities of Indenture Trustee, Paying Agent, Depositary Bank, Certificate  Registrar and Securities Intermediary. Wilmington Trust, National Association may, in such  multiple capacities, discharge its separate functions fully, without hindrance or regard to conflict  of interest principles, duty of loyalty principles or other breach of fiduciary duties to the extent  that any such conflict or breach arises from the performance by Wilmington Trust, National  Association of express duties set forth in this Indenture or any other Transaction Documents in  any such capacities, all of which defenses, claims or assertions are hereby expressly waived by  94  4131-7075-5128  the Issuer, the Holders and any other Person having rights pursuant hereto or thereto and to  disclaim any potential liability. Notwithstanding any provision herein to the contrary, the  Certificate Registrar shall be an express third-party beneficiary to this Indenture, entitled to  enforce its rights hereunder as if a direct party hereto.  Section 11.5.  Notice of Defaults.  If a Default, Event of Default or Rapid  Amortization Event occurs and is continuing and if a Trust Officer of the Indenture Trustee  receives written notice or has actual knowledge thereof, the Indenture Trustee shall promptly  provide each Noteholder, to the extent possible by email or facsimile, and, otherwise, by first  class mail at their respective addresses appearing in the Note Register.  Section 11.6.  Compensation.  (a) To the extent not otherwise paid pursuant to this Indenture, the Issuer  covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture  Trustee shall be entitled to receive, such compensation as the Issuer and the Indenture Trustee  shall agree in writing from time to time (which compensation shall not be limited by any  provision of Law in regard to the compensation of a trustee of an express trust) for all services  rendered by it in the execution of the trust hereby created and in the exercise and performance  of any of the powers and duties hereunder of the Indenture Trustee, and, the Issuer will pay or  reimburse the Indenture Trustee (without reimbursement from the Collection Account or  otherwise) all reasonable expenses, disbursements and advances (including legal fees and costs  and costs of persons not regularly employed by the Indenture Trustee) incurred or made by the  Indenture Trustee in accordance with any of the provisions of this Indenture except any such  expense, disbursement or advance as may arise from its own willful misconduct or negligence.  (b) The obligations of the Issuer under this Section 11.6 shall survive the  termination of this Indenture and the resignation or removal of the Indenture Trustee.  Section 11.7.  Replacement of the Indenture Trustee.  (a) A resignation or removal of the Indenture Trustee and appointment of a  successor Indenture Trustee shall become effective only upon the successor Indenture Trustee’s  acceptance of appointment as provided in this Section 11.7.  (b) The Indenture Trustee may, after giving sixty (60) days’ prior written  notice to the Issuer and the Servicer, resign at any time and be discharged from the trust hereby  created; provided, however, that no such resignation of the Indenture Trustee shall be effective  until a successor trustee has assumed the obligations of the Indenture Trustee hereunder.  The  Issuer may remove the Indenture Trustee by written instrument, in duplicate, one copy of which  instrument shall be delivered to the Indenture Trustee so removed and one copy to the successor  trustee if:  (i) the Indenture Trustee fails to comply with Section 11.9;  (ii) a court or federal or state bank regulatory agency having jurisdiction in  the premises in respect of the Indenture Trustee shall have entered a decree or order  granting relief or appointing a receiver, liquidator, assignee, custodian, trustee,  95  4131-7075-5128  conservator or similar official for the Indenture Trustee or for any substantial part of the  Indenture Trustee’s property, or ordering the winding-up or liquidation of the Indenture  Trustee’s affairs;  (iii) the Indenture Trustee consents to the appointment of or taking possession  by a receiver, liquidator, assignee, custodian, trustee, conservator or other similar  official for the Indenture Trustee or for any substantial part of the Indenture Trustee’s  property, or makes any assignment for the benefit of creditors or fails generally to pay  its debts as such debts become due or takes any corporate action in furtherance of any of  the foregoing; or  (iv) the Indenture Trustee becomes incapable of acting.  If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of the  Indenture Trustee for any reason, the Issuer shall promptly appoint a successor Indenture Trustee  by written instrument, in duplicate, one copy of which instrument shall be delivered to the  resigning and one copy to the successor trustee.  (c) If a successor Indenture Trustee does not take office within thirty (30)  days after the retiring Indenture Trustee provides written notice of its resignation or is removed,  the retiring Indenture Trustee may petition any court of competent jurisdiction for the  appointment of a successor trustee.  A successor Indenture Trustee shall deliver a written acceptance of its appointment to the  retiring or removed Indenture Trustee and to the Issuer.  Thereupon the resignation or removal of  the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee,  without any further act, deed or conveyance, shall become fully vested with all the rights, powers  and duties of the Indenture Trustee under this Indenture.  The successor Indenture Trustee shall  mail a notice of its succession to Noteholders.  The retiring Indenture Trustee shall, at the  expense of the Issuer, promptly transfer to the successor Indenture Trustee all property held by it  as Indenture Trustee and all documents and statements held by it hereunder; provided, however,  that all sums owing to the retiring Indenture Trustee hereunder (and its agents and counsel) have  been paid, and the Issuer and the predecessor Indenture 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 Indenture Trustee all such rights, powers, duties and  obligations.  Notwithstanding replacement of the Indenture Trustee pursuant to this Section 11.7,  the Issuer’s obligations under Sections 11.6 and 11.17 shall continue for the benefit of the  retiring Indenture Trustee.  (d) Any resignation or removal of the Indenture Trustee and appointment of  a successor Indenture Trustee pursuant to any of the provisions of this Section 11.7 shall not  become effective until acceptance of appointment by the successor Indenture Trustee pursuant  to this Section 11.7 and payment of all fees and expenses owed to the retiring Indenture Trustee.  (e) No successor Indenture Trustee shall accept appointment as provided in  this Section 11.7 unless at the time of such acceptance such successor Indenture Trustee shall be  eligible under the provisions of Section 11.9 hereof.  





 






96  4131-7075-5128  Section 11.8.  Successor Indenture Trustee by Merger, etc.  Any Person into which  the Indenture 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 Indenture Trustee  shall be a party, or any Person succeeding to the corporate trust business of the Indenture  Trustee, shall be the successor of the Indenture Trustee hereunder, provided such Person shall be  eligible under the provisions of Section 11.9 hereof, without the execution or filing of any paper  or any further act on the part of any of the parties hereto, anything herein to the contrary  notwithstanding.  In case at the time such successor or successors by merger, conversion or consolidation to  the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall  have been authenticated but not delivered, any such successor to the Indenture Trustee may  adopt the certificate of authentication of any predecessor Indenture Trustee, and deliver such  Notes so authenticated; and in case at that time any of the Notes shall not have been  authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the  name of any predecessor hereunder or in the name of the successor to the Indenture Trustee; and  in all such cases such certificates shall have the full force which it is anywhere in the Notes or in  this Indenture provided that the certificate of the Indenture Trustee shall have.  Section 11.9.  Eligibility: Disqualification.  The Indenture Trustee shall at all times  satisfy the requirements of TIA Section 310(a) (if this Indenture is required to be qualified under  the TIA).  The Indenture Trustee hereunder shall at all times be organized and doing business under  the Laws of the United States of America or any State thereof authorized under such Laws to  exercise corporate trust powers, having a long-term unsecured debt rating of at least BBB- (or  the equivalent thereof) by a Rating Agency, having, in the case of an entity that is subject to risk- based capital adequacy requirements, risk-based capital of at least $50,000,000 or, in the case of  an entity that is not subject to risk-based capital adequacy requirements, having a combined  capital and surplus of at least $50,000,000 and subject to supervision or examination by federal  or state authority.  If such corporation publishes reports of condition at least annually, pursuant  to Law, then for the purpose of this Section 11.9, the combined capital and surplus of such  corporation shall be deemed to be its combined capital and surplus as set forth in its most recent  report of condition so published.  The Indenture Trustee shall comply with TIA Section 310(b), including the optional  provision permitted by the second sentence of TIA Section 310(b)(9) (if this Indenture is  required to be qualified under the TIA); provided, however, that there shall be excluded from the  operation of TIA Section 310(b)(1) any indenture or indentures under which other securities of  the Issuer are outstanding if the requirements for such exclusion set forth in TIA  Section 310(b)(1) are met.  In case at any time the Indenture Trustee shall cease to be eligible in accordance with the  provisions of this Section 11.9, the Indenture Trustee shall resign immediately in the manner and  with the effect specified in Section 11.7.  97  4131-7075-5128  Section 11.10.  Appointment of Co-Indenture Trustee or Separate Indenture Trustee.  (a) Notwithstanding any other provisions of this Indenture, 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 Indenture Trustee shall have the power and may execute  and deliver all instruments to appoint one or more persons to act as a co-trustee or co-trustees,  or separate trustee or separate trustees, of all or any part of the Trust Estate, and to vest in such  Person or Persons, in such capacity and for the benefit of the Secured Parties, such title to the  Trust Estate, or any part thereof, and, subject to the other provisions of this Section 11.10 such  powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or  desirable.  No co-trustee or separate trustee hereunder shall be required to meet the terms of  eligibility as a successor trustee under Section 11.9 and no notice to Noteholders of the  appointment of any co-trustee or separate trustee shall be required under Section 11.7.  No co- trustee shall be appointed without the consent of the Issuer unless such appointment is required  as a matter of Law or to enable the Indenture Trustee to perform its functions hereunder.  The  appointment of any co-trustee or separate trustee shall not relieve the Indenture Trustee of any  of its obligations hereunder.  (b) Every separate trustee and co-trustee shall, to the extent permitted by  Law, be appointed and act subject to the following provisions and conditions:  (i) the Notes shall be authenticated and delivered solely by the Indenture  Trustee or an authenticating agent appointed by the Indenture Trustee;  (ii) all rights, powers, duties and obligations conferred or imposed upon the  Indenture Trustee shall be conferred or imposed upon and exercised or performed by the  Indenture 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  Indenture Trustee joining in such act), except to the extent that under any Law (whether  as Indenture Trustee hereunder or as successor to the Servicer under the Servicing  Agreement), the Indenture 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 Indenture Trustee;  (iii) no trustee hereunder shall be personally liable by reason of any act or  omission of any other trustees, hereunder, including acts or omissions of predecessor or  successor trustees;  (iv) the Indenture Trustee may at any time accept the resignation of or remove  any separate trustee or co-trustee; and  (v) the Indenture Trustee shall remain primarily liable for the actions of any  co-trustee.  (c) Any notice, request or other writing given to the Indenture Trustee shall  be deemed to have been given to each of the then separate trustees and co-trustees, as  98  4131-7075-5128  effectively as if given to each of them.  Every instrument appointing any separate trustee or co- trustee shall refer to this Indenture and the conditions of this Article 11.  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 Indenture Trustee or  separately, as may be provided therein, subject to all the provisions of this Indenture,  specifically including every provision of this Indenture relating to the conduct of, affecting the  liability of, or affording protection to, the Indenture Trustee.  Every such instrument shall be  filed with the Indenture Trustee and a copy thereof given to the Servicer.  (d) Any separate trustee or co-trustee may at any time constitute the  Indenture Trustee, 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 to this Indenture on its behalf and in  its name.  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 Indenture Trustee, to the extent permitted by Law, without the appointment of a new or  successor Indenture Trustee.  Section 11.11.  Preferential Collection of Claims Against the Issuer.  The Indenture  Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA  Section 311(b) (if this Indenture is required to be qualified under the TIA).  An Indenture Trustee  who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated  (if this Indenture is required to be qualified under the TIA).  Section 11.12.  Taxes.  The Indenture Trustee shall not be liable for any liabilities,  costs or expenses of the Issuer or the Noteholders arising under any tax Law, including without  limitation federal, state, local or foreign income or franchise taxes or any other tax imposed on or  measured by income (or any interest or penalty with respect thereto or arising from a failure to  comply therewith).  Section 11.13.  [Reserved].    Section 11.14.  Suits for Enforcement.  If an Event of Default shall occur and be  continuing, the Indenture Trustee, may (but shall not be obligated to) subject to the provisions of  Section 2.01 of the Servicing Agreement, proceed to protect and enforce its rights and the rights  of any Secured Party under this Indenture or any other Transaction Document by a Proceeding,  whether for the specific performance of any covenant or agreement contained in this Indenture or  such other Transaction Document or in aid of the execution of any power granted in this  Indenture or such other Transaction Document or for the enforcement of any other legal,  equitable or other remedy as the Indenture Trustee, being advised by counsel, shall deem most  effectual to protect and enforce any of the rights of the Indenture Trustee or any Secured Party.  Section 11.15.  Reports by Indenture Trustee to Holders.  The Indenture Trustee  shall deliver to each Noteholder such information as may be expressly required by the Code.  Section 11.16.  Representations and Warranties of Indenture Trustee.  The Indenture  Trustee represents and warrants to the Issuer and the Secured Parties that:  99  4131-7075-5128  (i) the Indenture Trustee is a national banking association with trust powers  duly organized, validly existing and in good standing under the Laws of the United  States, and is duly authorized and licensed under applicable Law to engage in the  business of banking;  (ii) the Indenture Trustee has full power, authority and right to execute,  deliver and perform this Indenture and to authenticate the Notes, and has taken all  necessary action to authorize the execution, delivery and performance by it of this  Indenture and to authenticate the Notes;  (iii) the execution and delivery by the Indenture Trustee of this Indenture and  the other Transaction Documents to which it is a party, and the performance by the  Indenture Trustee of its duties hereunder and thereunder, have been duly authorized by  all necessary proceedings and no further governmental approvals or filings are required  for the valid execution and delivery by the Indenture Trustee or the performance by the  Indenture Trustee, of this Indenture and such other Transaction Documents;   (iv) the Indenture Trustee has duly executed and delivered this Indenture and  each other Transaction Document to which it is a party, and each of this Indenture and  each such other Transaction Document constitutes the legal, valid and binding obligation  of the Indenture Trustee, enforceable against the Indenture Trustee in accordance with  its respective terms, except as (i) such enforceability may be limited by bankruptcy,  insolvency, reorganization and similar laws relating to or affecting the enforcement of  creditors’ rights generally and (ii) the availability of equitable remedies may be limited  by equitable principles of general applicability;   (v) without any investigation, the undersigned Responsible Officer of the  Indenture Trustee has actual knowledge that the Collateral is subject to the actual or  claimed interest of any Person (other than the Issuer and the Indenture Trustee); and  (vi) the Indenture Trustee meets the requirements of eligibility hereunder set  forth in Section 11.9.  Section 11.17.  The Issuer Indemnification of the Indenture Trustee.  The Issuer shall  fully indemnify, defend and hold harmless the Indenture Trustee (and any predecessor Indenture  Trustee) and its directors, officers, agents and employees from and against any and all loss,  liability, claim, expense, damage or injury suffered or sustained of whatever kind or nature  regardless of their merit, demanded, asserted, or claimed directly or indirectly relating to any  acts, omissions or alleged acts or omissions arising out of the activities of the Indenture Trustee  pursuant to this Indenture and any other Transaction Document to which it is a party or any  transaction contemplated hereby or thereby, including but not limited to any judgment, award,  settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the  defense of any actual or threatened action, Proceeding or claim; provided, however, that the  Issuer shall not indemnify the Indenture Trustee or its directors, officers, employees or agents if  such acts, omissions or alleged acts or omissions constitute negligence or willful misconduct by  the Indenture Trustee.  The indemnity provided herein shall (i) survive the termination of this  Indenture and the resignation and removal of the Indenture Trustee, and (ii) apply to the  





 






100  4131-7075-5128  Indenture Trustee (including (a) in its capacity as Agent and (b) Wilmington Trust, National  Association, as Securities Intermediary and Depository Bank).  Section 11.18.  Indenture Trustee’s Application for Instructions from the Issuer.   Any application by the Indenture Trustee for written instructions from the Issuer, the  Administrator or the Servicer may, at the option of the Indenture Trustee, set forth in writing any  action proposed to be taken or omitted by the Indenture Trustee under this Indenture and the date  on and/or after which such action shall be taken or such omission shall be effective.  Subject to  Section 11.1, the Indenture Trustee shall not be liable for any action taken by, or omission of, the  Indenture Trustee in accordance with a proposal included in such application on or after the date  specified in such application (which date shall not be less than thirty (30) days after the date any  Responsible Officer of the Issuer, the Administrator or the Servicer actually receives such  application, unless any such officer shall have consented in writing to any earlier date) unless  prior to taking any such action (or the effective date in the case of an omission), the Indenture  Trustee shall have received written instructions in response to such application specifying the  action to be taken or omitted.  Section 11.19.  [Reserved].  Section 11.20.  Maintenance of Office or Agency.  The Indenture Trustee will  maintain an office or offices, or agency or agencies, where notices and demands to or upon the  Indenture Trustee in respect of the Notes and this Indenture may be served.  The Indenture  Trustee initially appoints its Corporate Trust Office as its office for such purposes.  The  Indenture Trustee will give prompt written notice to the Issuer, the Servicer and the Noteholders  of any change in the location of the Note Register or any such office or agency.  Section 11.21.  Concerning the Rights of the Indenture Trustee.  The rights,  privileges and immunities afforded to the Indenture Trustee in the performance of its duties  under this Indenture shall apply equally to the performance by the Indenture Trustee of its duties  under each other Transaction Document to which it is a party.    Section 11.22.  Direction to the Indenture Trustee.  The Issuer hereby directs the  Indenture Trustee to enter into the Transaction Documents.  ARTICLE 12.  DISCHARGE OF INDENTURE  Section 12.1.  Satisfaction and Discharge of Indenture.  This Indenture shall cease to  be of further effect with respect to the Notes except as to (i) rights of Noteholders to receive  payments of principal thereof and interest thereon and any other amount due to Noteholders,   (ii) Sections 8.1, 11.6, 11.12, 11.17, 12.2, 12.5(b), 15.16 and 15.17, (iii) the rights, obligations  under Sections 12.2 and 15.17 and immunities of the Indenture Trustee hereunder (including the  rights of the Indenture Trustee under Sections 11.6 and 11.17) and (iv) the rights of Noteholders  as beneficiaries hereof with respect to the property deposited with the Indenture Trustee as  described below payable to all or any of them, and the Indenture Trustee, on demand of and at  the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and  101  4131-7075-5128  discharge of this Indenture with respect to the Notes (and their related Secured Parties), on the  Payment Date (the “Indenture Termination Date”) on which the Issuer has paid, caused to be  paid or irrevocably deposited or caused to be irrevocably deposited in the Collection Account  funds sufficient to pay in full all Secured Obligations, and the Issuer has delivered to the  Indenture Trustee an Officer’s Certificate, an Opinion of Counsel and, if required by the TIA (if  this Indenture is required to be qualified under the TIA), an Independent Certificate from a firm  of certified public accountants, each meeting the applicable requirements of Section 15.1(a) and  each stating that all conditions precedent herein provided for relating to the satisfaction and  discharge of this Indenture have been complied with.  After any irrevocable deposit made pursuant to Section 12.1 and satisfaction of the other  conditions set forth herein, the Indenture Trustee promptly upon request shall acknowledge in  writing the discharge of the Issuer’s obligations under this Indenture except for those surviving  obligations specified above.  Section 12.2.  Application of Issuer Money.  All moneys deposited with the  Indenture Trustee pursuant to Section 12.1 shall be held in trust and applied by it, in accordance  with the provisions of the Notes and this Indenture, to the payment, either directly or through any  Paying Agent to the Noteholder of the particular Notes for the payment or redemption of which  such moneys have been deposited with the Indenture Trustee, of all sums due and to become due  thereon for principal, interest and other amounts; but such moneys need not be segregated from  other funds except to the extent required herein or in the other Transaction Documents or  required by Law.  The provisions of this Section 12.2 shall survive the expiration or earlier termination of  this Indenture.  Section 12.3.  Repayment of Moneys Held by Paying Agent.  In connection with the  satisfaction and discharge of this Indenture with respect to the Notes, all moneys then held by  any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with  respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be  held and applied according to Section 8.1 and thereupon such Paying Agent shall be released  from all further liability with respect to such moneys.  Section 12.4.  [Reserved].  Section 12.5.  Final Payment.  (a) Written notice of any termination, specifying the Payment Date upon  which the Noteholders may surrender their Notes for final payment and cancellation, shall be  given (subject to at least two (2) Business Days’ prior notice from the Issuer to the Indenture  Trustee) by the Indenture Trustee to Noteholders mailed not later than five (5) Business Days  preceding such final payment specifying (i) the Payment Date (which shall be the Payment Date  in the month in which the Facility Termination Date occurs) upon which final payment of such  Notes will be made upon presentation and surrender of such Notes at the office or offices  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  102  4131-7075-5128  presentation and surrender of the Notes at the office or offices therein specified.  The Issuer’s  notice to the Indenture Trustee in accordance with the preceding sentence shall be accompanied  by an Officer’s Certificate of the Administrator setting forth the information specified in Article  6 of this Indenture covering the period during the then current calendar year through the date of  such notice and setting forth the date of such final distribution.  The Indenture Trustee shall give  such notice to the Transfer Agent and the Paying Agent at the time such notice is given to such  Noteholders.  (b) Notwithstanding the termination or discharge of the trust of the Indenture  pursuant to Section 12.1 or the occurrence of the Facility Termination Date, all funds then on  deposit in the Collection Account shall continue to be held in trust for the benefit of the  Noteholders and the Paying Agent or the Indenture Trustee shall pay such funds to the  Noteholders upon surrender of their Notes.  In the event that all of the Noteholders shall not  surrender their Notes for cancellation within six (6) months after the date specified in the above- mentioned written notice, the Indenture Trustee shall give second written notice to the  remaining Noteholders upon receipt of the appropriate records from the Transfer Agent and  Registrar to surrender their Notes for cancellation and receive the final distribution with respect  thereto.  If within one and one-half years after the second notice all the Notes shall not have  been surrendered for cancellation, the Indenture Trustee may take appropriate steps or may  appoint an agent to take appropriate steps, to contact the remaining Noteholders concerning  surrender of their Notes, and the cost thereof shall be paid out of the funds in the Collection  Account held for the benefit of such Noteholders.  The Indenture Trustee and the Paying Agent  shall pay to the Issuer upon request any monies held by them for the payment of principal or  interest which remains unclaimed for two (2) years.  After such payment to the Issuer,  Noteholders entitled to the money must look to the Issuer for payment as general creditors  unless an applicable abandoned property Law designates another Person.  (c) All Notes surrendered for payment of the final distribution with respect to  such Notes and cancellation shall be cancelled by the Transfer Agent and Registrar and be  disposed of in a manner satisfactory to the Indenture Trustee and the Issuer.  Section 12.6.  Termination Rights of Issuer.  Upon the termination of the Lien of the  Indenture pursuant to Section 12.1, and after payment of all amounts due hereunder on or prior to  such termination, the Indenture Trustee shall execute a written release and reconveyance  substantially in the form of Exhibit A hereto pursuant to which it shall release the Lien of the  Indenture and reconvey to the Issuer (without recourse, representation or warranty) all right, title  and interest in the Trust Estate, whether then existing or thereafter created, all moneys due or to  become due with respect to such Trust Estate and all proceeds of the Trust Estate, except for  amounts held by the Indenture Trustee or any Paying Agent pursuant to Section 12.5(b).  The  Indenture Trustee shall execute and deliver such instruments of transfer and assignment, in each  case without recourse, as shall be reasonably requested by the Issuer or the Servicer to vest in the  Issuer all right, title and interest in the Trust Estate.  Section 12.7.  Repayment to the Issuer.  The Indenture Trustee and the Paying Agent  shall promptly pay to the Issuer upon written request any excess money or, pursuant to Sections  2.10 and 2.13, return any Notes held by them at any time.  103  4131-7075-5128  ARTICLE 13.  AMENDMENTS  Section 13.1.  Supplemental Indentures without Consent of the Noteholders.   Without the consent of the Holders of any Notes, and, if the Servicer’s or the Administrator’s or  the Calculation Agent’s rights and/or obligations are materially and adversely affected thereby,  with the consent of the Servicer or the Administrator, or the Calculation Agent, as applicable, the  Issuer and the Indenture Trustee, when authorized by an Issuer Order or an Administrator Order,  at any time and from time to time, may enter into one or more indenture supplements or  amendments hereto (which shall conform to any applicable provisions of the TIA as in force at  the date of execution thereof), in form satisfactory to the Indenture Trustee for any of the  following purposes:  (a) to correct or amplify the description of any property at any time subject  to the Lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee  any property subject or required to be subjected to the Lien of this Indenture, or to subject to the  Lien of this Indenture additional property;  (b) to evidence the succession, in compliance with the applicable provisions  hereof, of another Person to the Issuer, and the assumption by any such successor of the  covenants of the Issuer herein and in the Notes;  (c) to add to the covenants of the Issuer for the benefit of any Secured Parties  or to surrender any right or power herein conferred upon the Issuer;  (d) to convey, transfer, assign, mortgage or pledge to the Indenture Trustee  any property or assets as security for the Secured Obligations and to specify the terms and  conditions upon which such property or assets are to be held and dealt with by the Indenture  Trustee and to set forth such other provisions in respect thereof as may be required by this  Indenture or as may, consistent with the provisions of this Indenture, be deemed appropriate by  the Issuer and the Indenture Trustee, or to correct or amplify the description of any such  property or assets at any time so mortgaged, pledged, conveyed and transferred to the Indenture  Trustee;  (e) to cure any ambiguity, or correct or supplement any provision of this  Indenture which may be inconsistent with any other provision of this Indenture;  (f) to make any other provisions of this Indenture with respect to matters or  questions arising under this Indenture; provided, however, that such action shall not adversely  affect the interests of any Holder of the Notes in any material respect without consent being  provided as set forth in Section 13.2;  (g) to evidence and provide for the acceptance of appointment hereunder by  a successor Indenture Trustee with respect to the Notes or to add to or change any of the  provisions of this Indenture as shall be necessary and permitted to provide for or facilitate the  administration of the trusts hereunder by more than one trustee pursuant to the requirements of  Article 11; or   





 






104  4131-7075-5128  (h) to modify, eliminate or add to the provisions of this Indenture to such  extent as shall be necessary to effect the qualification of this Indenture under the TIA or under  any similar federal statute hereafter enacted and to add to this Indenture such other provisions as  may be expressly required by the TIA.  Upon the request of the Issuer, the Indenture Trustee shall join with the Issuer in the  execution of any supplemental indenture or amendment authorized or permitted by the terms of  this Indenture and shall make any further appropriate agreements and stipulations that may be  therein contained, but the Indenture Trustee shall not be obligated to enter into such  supplemental indenture or amendment that affects its own rights, duties or immunities under this  Indenture or otherwise.  Section 13.2.  Supplemental Indentures with Consent of Noteholders.  The Issuer  and the Indenture Trustee, when authorized by an Issuer Order or an Administrator Order, also  may, with the consent of the Required Noteholders and, if the Servicer’s or the Administrator’s  or the Calculation Agent’s rights and/or obligations are materially and adversely affected  thereby, the Servicer or the Administrator or the Calculation Agent, as applicable, enter into one  or more indenture supplements or amendments hereto for the purpose of adding any provisions  to, or changing in any manner or eliminating any of the provisions of, this Indenture or of  modifying in any manner the rights of the Holders of the Notes under this Indenture; provided,  however, that no such indenture supplement or amendment shall, without the consent of the  Required Noteholders and without the consent of the Holder of each outstanding Note affected  thereby):  (i) change the date of payment of any installment of principal of or interest  on, or any premium payable upon the redemption of, any Note or reduce in any manner  the principal amount thereof or the interest rate thereon, modify the provisions of this  Indenture relating to the application of Collections on, or the proceeds of the sale of, the  Trust Estate to payment of principal of, or interest on, the Notes, or change any place of  payment where, or the coin or currency in which, any Note or the interest thereon is  payable;  (ii) change the Noteholder voting requirements with respect to any  Transaction Document;  (iii) impair the right to institute suit for the enforcement of the provisions of  this Indenture requiring the application of funds available therefor, as provided in  Article 9, to the payment of any such amount due on the Notes on or after the respective  due dates thereof;  (iv) reduce the percentage of the aggregate outstanding principal amount of  the Notes, the consent of the Holders of which is required for any such indenture  supplement or amendment, or the consent of the Holders of which is required for any  waiver of compliance with any provisions of this Indenture or any defaults hereunder  and their consequences provided for in this Indenture;  105  4131-7075-5128  (v) modify or alter the provisions of this Indenture regarding the voting of  Notes held by the Issuer, the Seller or an Affiliate of the foregoing;  (vi) reduce the percentage of the aggregate outstanding principal amount of  the Notes, the consent of the Holders of which is required to direct the Indenture Trustee  to sell or liquidate the Trust Estate pursuant to Section 10.4 if the proceeds of such sale  would be insufficient to pay the principal amount and accrued but unpaid interest on the  outstanding Notes;  (vii) modify any provision of this Section 13.2, except to increase any  percentage specified herein or to provide that certain additional provisions of this  Indenture cannot be modified or waived without the consent of the Holder of each  outstanding Note affected thereby;  (viii) modify any of the provisions of this Indenture in such manner as to affect  in any material respect the calculation of the amount of any payment of interest or  principal due on any Note on any Payment Date (including the calculation of any of the  individual components of such calculation), to alter the application of Collections or to  affect the rights of the Holders of Notes to the benefit of any provisions for the  mandatory redemption of the Notes contained in this Indenture; or  (ix) permit the creation of any Lien ranking prior to or on a parity with the  Lien of this Indenture with respect to any part of the Trust Estate for the Notes (except  for Permitted Encumbrances described in clause (a) of the definition thereof) or, except  as otherwise permitted or contemplated in this Indenture, terminate the Lien of this  Indenture on any such collateral at any time subject hereto or deprive any Secured Party  of the security provided by the Lien of this Indenture;   provided, further, that no amendment will be permitted if it would cause any Noteholder to  recognize gain or loss for U.S. federal income tax purposes, unless such Noteholder’s consent is  obtained as described above.  The Indenture Trustee may, but shall not be obligated to, enter into any such amendment  or supplement that affects the Indenture Trustee’s rights, duties or immunities under this  Indenture or otherwise.  It shall not be necessary for any consent of Noteholders under this Section to approve the  particular form of any proposed supplemental indenture, but it shall be sufficient if such consent  shall approve the substance thereof.    The manner of obtaining such consents and of evidencing the authorization of the  execution thereof by any Noteholders shall be subject to such reasonable requirements as the  Indenture Trustee may prescribe.  Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental  indenture or amendment to this Indenture pursuant to this Section, the Indenture Trustee shall  mail to each Holder of the Notes and the Servicer a copy of such supplemental indenture or  amendment.  Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall  106  4131-7075-5128  not, however, in any way impair or affect the validity of any such supplemental indenture or  amendment.  Section 13.3.  Execution of Supplemental Indentures.  In executing any amendment  or supplemental indenture permitted by this Article 13 or the modifications thereby of the trust  created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to  Section 11.1, shall be fully protected in relying upon, an Officer’s Certificate of the  Administrator and an Opinion of Counsel stating that the execution of such amendment or  supplemental indenture is authorized, permitted or not prohibited (as the case may be) by this  Indenture and all conditions precedent to the execution of such amendment or supplemental  indenture have been satisfied.  Such Opinion of Counsel may be subject to reasonable  qualifications and assumptions of fact.  The Indenture Trustee may, but shall not be obligated to,  enter into any such amendment or supplemental indenture that affects the Indenture Trustee’s  own rights, duties, liabilities or immunities under this Indenture or otherwise.  No amendment or  supplemental indenture may adversely affect the rights, duties, immunities, protections or  indemnification rights of any Agent, the Certificate Registrar, the Depositary Bank or the  Securities Intermediary without its written consent.  Section 13.4.  Effect of Supplemental Indenture.  Upon the execution of any  amendment or supplemental indenture pursuant to the provisions hereof, this Indenture shall be  and be deemed to be modified and amended in accordance therewith with respect to the Notes  affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and  immunities under this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes  shall thereafter be determined, exercised and enforced hereunder subject in all respects to such  modifications and amendments, and all the terms and conditions of any such amendment or  supplemental indenture shall be and be deemed to be part of the terms and conditions of this  Indenture for any and all purposes.  Section 13.5.  Conformity With TIA.  Every amendment of this Indenture and every  supplemental indenture executed pursuant to this Article 13 shall conform to the requirements of  the TIA as then in effect so long as this Indenture shall then be required to be qualified under the  TIA.  Section 13.6.  [Reserved].    Section 13.7.  [Reserved].  Section 13.8.  Revocation and Effect of Consents.  Until an amendment,  supplemental indenture or waiver becomes effective, a consent to it by a Holder of a Note is a  continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note  that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is  not made on any Note.  However, any such Holder or subsequent Holder may revoke the consent  as to such Holder’s Note or portion of a Note if the Indenture Trustee receives written notice of  revocation before the date the amendment, supplemental indenture or waiver becomes effective.   An amendment, supplemental indenture or waiver becomes effective in accordance with its  terms and thereafter binds every Holder.  The Issuer may fix a record date for determining which  Holders must consent to such amendment, supplemental indenture or waiver.  107  4131-7075-5128  Section 13.9.  Notation on or Exchange of Notes Following Amendment.  The  Indenture Trustee may place an appropriate notation about an amendment, supplemental  indenture or waiver on any Note thereafter authenticated.  If the Issuer shall so determine, new  Notes so modified as to conform to any such amendment, supplemental indenture or waiver may  be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee  (upon receipt of an Issuer Order or an Administrator Order) in exchange for outstanding Notes.   Failure to make the appropriate notation or issue a new Note shall not affect the validity and  effect of such amendment, supplemental indenture or waiver.  Section 13.10.  The Indenture Trustee to Sign Amendments, etc.  The Indenture  Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article  13 if the amendment or supplemental indenture does not adversely affect in any material respect  the rights, duties, liabilities or immunities of the Indenture Trustee.  If any amendment or  supplemental indenture does have such a materially adverse effect, the Indenture Trustee may,  but need not, sign it.  In signing such amendment or supplemental indenture, the Indenture  Trustee shall be entitled to receive, if requested, an indemnity reasonably satisfactory to it and to  receive and, subject to Section 11.1, shall be fully protected in relying upon, an Officer’s  Certificate of the Administrator and an Opinion of Counsel as conclusive evidence that such  amendment or supplemental indenture is authorized, permitted or not prohibited (as the case may  be) by this Indenture and that it will be valid and binding upon the Issuer in accordance with its  terms and all conditions precedent to the execution of such amendment or supplemental  indenture have been satisfied.  ARTICLE 14.  [RESERVED]  ARTICLE 15.  MISCELLANEOUS  Section 15.1.  Compliance Certificates and Opinions, etc.    (a) Upon any application or request by the Issuer to the Indenture Trustee to  take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture  Trustee if requested thereby (i) an Officer’s Certificate stating that all conditions precedent, if  any, provided for in this Indenture relating to the proposed action have been complied with, (ii)  an Opinion of Counsel (subject to reasonable assumptions and qualifications) stating that in the  opinion of such counsel all such conditions precedent, if any, have been complied with and (iii)  (if this Indenture is required to be qualified under the TIA) an Independent Certificate from a  firm of certified public accountants meeting the applicable requirements of this Section, except  that, in the case of any such application or request as to which the furnishing of such documents  is specifically required by any provision of this Indenture, no additional certificate or opinion  need be furnished.  





 






108  4131-7075-5128  To the extent that this Indenture is required to be qualified under the TIA, every  certificate or opinion with respect to compliance with a condition or covenant provided for in  this Indenture shall include:  (i) a statement that each signatory of such certificate or opinion has read or  has caused to be read such covenant or condition and the definitions herein relating  thereto;  (ii) a brief statement as to the nature and scope of the examination or  investigation upon which the statements or opinions contained in such certificate or  opinion are based;  (iii) a statement that, in the opinion of each such signatory, such signatory has  made such examination or investigation as is necessary to enable such signatory to  express an informed opinion as to whether or not such covenant or condition has been  complied with; and  (iv) a statement as to whether, in the opinion of each such signatory such  condition or covenant has been complied with.  Section 15.2.  Form of Documents Delivered to Indenture Trustee.  In any case  where several matters are required to be certified by, or covered by an opinion of, any specified  Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only  one such Person, or that they be so certified or covered by only one document, but one such  Person may certify or give an opinion with respect to some matters and one or more other such  Persons as to other matters, and any such Person may certify or give an opinion as to such  matters in one or several documents.  Any certificate or opinion of a Responsible Officer of the Issuer may be based, insofar as  it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless  such officer knows, or in the exercise of reasonable care should know, that the certificate or  opinion or representations with respect to the matters upon which his or her certificate or opinion  is based are erroneous.  Any such certificate of a Responsible Officer or Opinion of Counsel may  be based, insofar as it relates to factual matters, upon a certificate or opinion of, or  representations by, an officer or officers of the Servicer, the Seller, the Administrator or the  Issuer, stating that the information with respect to such factual matters is in the possession of or  known to the Servicer, the Seller, the Administrator or the Issuer, unless such counsel knows, or  in the exercise of reasonable care should know, that the certificate or opinion or representations  with respect to such matters are erroneous.  Where any Person is required to make, give or execute two or more applications,  requests, consents, certificates, statements, opinions or other instruments under this Indenture,  they may, but need not, be consolidated and form one instrument.  Whenever in this Indenture, in connection with any application or certificate or report to  the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of  the granting of such application, or as evidence of the Issuer’s compliance with any term hereof,  it is intended that the truth and accuracy, at the time of the granting of such application or at the  109  4131-7075-5128  effective date of such certificate or report (as the case may be), of the facts and opinions stated in  such document shall in such case be conditions precedent to the right of the Issuer to have such  application granted or to the sufficiency of such certificate or report.  The foregoing shall not,  however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy  of any statement or opinion contained in any such document as provided in Article 10.  Section 15.3.  Acts of Noteholders.  (a) Wherever in this Indenture a provision is made that an action may be  taken or a notice, demand or instruction given by Noteholders, such action, notice or instruction  may be taken or given by any Noteholder, unless such provision requires a specific percentage  of Noteholders.  Notwithstanding anything in this Indenture to the contrary, so long as any other  Person is a Noteholder, none of the Seller, the Issuer or any Affiliate controlled by Oportun or  controlling Oportun shall have any right to vote with respect to any Note.  (b) Any request, demand, authorization, direction, notice, consent, waiver or  other action provided by this Indenture to be given or taken by Noteholders may be embodied in  and evidenced by one or more instruments of substantially similar tenor signed by such  Noteholders in person or by agents duly appointed in writing; and except as herein otherwise  expressly provided such action shall become effective when such instrument or instruments are  delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer.   Such instrument or instruments (and the action embodied therein and evidenced thereby) are  herein sometimes referred to as the “Act” of the Noteholders signing such instrument or  instruments. Proof of execution of any such instrument or of a writing appointing any such  agent shall be sufficient for any purpose of this Indenture and (subject to Section 11.1)  conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in  this Section.  (c) The fact and date of the execution by any Person of any such instrument  or writing may be proved in any customary manner of the Indenture Trustee.  (d) The ownership of Notes shall be proved by the Note Register.  (e) Any request, demand, authorization, direction, notice, consent, waiver or  other action by the Holder of any such Notes shall bind such Noteholder and the Holder of  every Note and every subsequent Holder of such Notes issued upon the registration thereof or in  exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done  by the Indenture Trustee, the Servicer or the Issuer in reliance thereon, whether or not notation  of such action is made upon such Note.  Section 15.4.  Notices.  All demands, notices and communications hereunder shall be  in writing and shall be deemed to have been duly given if personally delivered at, sent by  facsimile to, sent by courier (overnight or hand-delivered) at or mailed by certified or registered  mail, return receipt requested, to (a) in the case of the Issuer, to c/o Wilmington Savings Fund  Society, FSB, 500 Delaware Avenue, 11th Floor, Wilmington, Delaware 19801 Attention:  Oportun CCW Trust, with a copy to the Administrator, to 2 Circle Star Way, San Carlos,  California 94070, Attention: Secretary, (b) in the case of the Servicer, to 2 Circle Star Way, San  110  4131-7075-5128  Carlos, California 94070, Attention: General Counsel and (c) in the case of the Indenture  Trustee, to the Corporate Trust Office.  Unless expressly provided herein, any notice required or  permitted to be mailed to a Noteholder shall be given by first class mail, postage prepaid, at the  address of such Noteholder as shown in the Note Register. Any notice so mailed within the time  prescribed in this Indenture shall be conclusively presumed to have been duly given, whether or  not the Noteholder receives such notice.  The Issuer or the Indenture Trustee by notice to the other may designate additional or  different addresses for subsequent notices or communications; provided, however, the Issuer  may not at any time designate more than a total of three (3) addresses to which notices must be  sent in order to be effective.  Any notice (i) given in person shall be deemed delivered on the date of delivery of such  notice, (ii) given by first class mail shall be deemed given five (5) days after the date that such  notice is mailed, (iii) delivered by telex or telecopier shall be deemed given on the date of  confirmation of the delivery of such notice by e-mail or telephone, and (iv) delivered by  overnight air courier shall be deemed delivered one (1) Business Day after the date that such  notice is delivered to such overnight courier.  Notwithstanding any provisions of this Indenture to the contrary, the Indenture Trustee  shall have no liability based upon or arising from the failure to receive any notice required by or  relating to this Indenture or the Notes.  If the Issuer mails a notice or communication to Noteholders, it shall mail a copy to the  Indenture Trustee at the same time.  Section 15.5.  Notices to Noteholders: Waiver.  Where this Indenture provides for  notice to Noteholders of any event, such notice shall be sufficiently given if sent in accordance  with Section 15.4 hereof.  In any case where notice to Noteholders is given by mail, neither the  failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder  shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that  is mailed in the manner herein provided shall conclusively be presumed to have been duly given.  Where this Indenture provides for notice in any manner, such notice may be waived in  writing by any Person entitled to receive such notice, either before or after the event, and such  waiver shall be the equivalent of such notice.  Waivers of notice by Noteholders shall be filed  with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any  action taken in reliance upon such a waiver.  In case, by reason of the suspension of regular mail service, it shall be impractical to mail  notice of any event to Noteholders when such notice is required to be given pursuant to any  provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the  Indenture Trustee shall be deemed to be a sufficient giving of such notice.  Section 15.6.  Alternate Payment and Notice Provisions.  Notwithstanding any  provision of this Indenture or any of the Notes to the contrary, the Indenture Trustee on behalf of  the Issuer may enter into any agreement with any Holder of a Note providing for a method of  payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different  111  4131-7075-5128  from the methods provided for in this Indenture for such payments or notices, provided that such  methods are consented to by the Issuer (which consent shall not be unreasonably withheld).  The  Indenture Trustee will cause payments to be made and notices to be given in accordance with  such agreements.  Section 15.7.  Conflict with TIA.  If any provision hereof limits, qualifies or  conflicts with another provision hereof that is required to be included in this Indenture by any of  the provisions of the TIA, such required provision shall control (if this Indenture is required to be  qualified under the TIA).  The provisions of TIA Sections 310 through 317 that impose duties on any Person  (including the provisions automatically deemed included herein unless expressly excluded by  this Indenture) are a part of and govern this Indenture, whether or not physically contained herein  (if this Indenture is required to be qualified under the TIA).  Notwithstanding the foregoing, and  regardless of whether the Indenture is required to be qualified under the TIA, the provisions of  Section 316(a)(1) of the TIA shall be excluded from this Indenture.  Section 15.8.  Effect of Headings and Table of Contents.  The Article and Section  headings herein and the Table of Contents and Cross-Reference Table are for convenience of  reference only, are not to be considered a part hereof, and shall not affect the meaning or  construction hereof.  Section 15.9.  Successors and Assigns.  All covenants and agreements in this  Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed  or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors.  Section 15.10.  Separability of Provisions.  If any one or more of the covenants,  agreements, provisions or terms of this Indenture or Notes shall for any reason whatsoever be  held invalid, then such covenants, agreements, provisions or terms shall be deemed severable  from the remaining covenants, agreements, provisions or terms of this Indenture and shall in no  way affect the validity or enforceability of the other provisions of this Indenture or of the Notes  or rights of the Holders thereof.  Section 15.11.  Benefits of Indenture.  Except as set forth in this Indenture, nothing  in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the  parties hereto and their successors hereunder and the Secured Parties, any benefit or any legal or  equitable right, remedy or claim under the Indenture.  Section 15.12.  Legal Holidays.  In any case where the date on which any payment is  due to any Secured Party shall not be a Business Day, then (notwithstanding any other provision  of the Notes or this Indenture) any such payment need not be made on such date, but may be  made on the next succeeding Business Day with the same force and effect as if made on the date  on which nominally due, and no interest shall accrue for the period from and after any such  nominal date.  Section 15.13.  GOVERNING LAW; JURISDICTION.  THIS INDENTURE AND  THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE  STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW  





 






112  4131-7075-5128  PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES  HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.  EACH  OF THE PARTIES TO THIS INDENTURE AND EACH SECURED PARTY HEREBY  AGREES TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES  DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY  APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENT  THEREOF.  EACH OF THE PARTIES AND EACH SECURED PARTY HEREBY WAIVES  ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO  VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE  AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL  OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.  Section 15.14.  Counterparts; Electronic Execution.  This Indenture may be executed  in any number of counterparts, and by different parties on separate counterparts, each of which  so executed shall be deemed to be an original, but all such counterparts shall together constitute  but one and the same instrument. Each of the parties hereto agrees that the transaction consisting  of this Indenture may be conducted by electronic means. Each party agrees, and acknowledges  that it is such party’s intent, that if such party signs this Indenture using an electronic signature, it  is signing, adopting, and accepting this Indenture and that signing this Indenture using an  electronic signature is the legal equivalent of having placed its handwritten signature on this  Indenture on paper. Each party acknowledges that it is being provided with an electronic or paper  copy of this Indenture in a usable format.  Section 15.15.  Recording of Indenture.  If this Indenture is subject to recording in  any appropriate public recording offices, such recording is to be effected by the Issuer and at its  expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee  or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such  recording is necessary either for the protection of the Noteholders, the Certificateholders or any  other Person secured hereunder or for the enforcement of any right or remedy granted to the  Indenture Trustee under this Indenture.  Section 15.16.  Issuer Obligation.  Neither any trustee nor any Beneficiary of the  Issuer nor any of their respective officers, directors, employers or agents will have any liability  with respect to this Indenture, and no recourse may be had solely to the assets of the Issuer  respect thereto. In addition, no recourse may be taken, directly or indirectly, with respect to the  obligations of the Issuer, the Depositor Receivables Trustee for the benefit of the Depositor, the  Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or  other writing delivered in connection herewith or therewith, against (i) any assets of the Issuer  other than the Trust Estate, (ii) the Seller, the Servicer, the Administrator, the Depositor  Receivables Trustee for the benefit of the Depositor, the Owner Trustee or the Indenture Trustee  in their respective individual capacities, (iii) any Beneficiary or (iv) any partner, owner,  incorporator, member, manager, beneficiary, beneficial owner, agent, officer, director, employee,  shareholder or agent of the Issuer, any Beneficiary, the Seller, the Administrator, the Depositor  Receivables Trustee, the Owner Trustee, the Servicer or the Indenture Trustee, except (x) as any  such Person may have expressly agreed and (y) nothing in this Section shall relieve the Seller or  the Servicer from its own obligations under the terms of any Servicer Transaction Document.   113  4131-7075-5128  Nothing in this Section 15.16 shall be construed to limit the Indenture Trustee from exercising its  rights hereunder with respect to the Trust Estate.  Section 15.17.  No Bankruptcy Petition Against the Issuer.  Each of the Secured  Parties and the Indenture Trustee by entering into the Indenture or any Note Purchase  Agreement, and in the case of a Noteholder, by accepting a Note, hereby covenants and agrees  that, prior to the date which is one year and one day after the payment in full of the latest  maturing Note and the termination of the Indenture, it will not institute against, or join with any  other Person in instituting against, the Issuer 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 Notes, the  Indenture or any of the Transaction Documents.  The provisions of this Section 15.17 shall  survive the termination of this Indenture, and the resignation or removal of the Indenture Trustee.   Nothing contained herein shall preclude participation by any Secured Party or the Indenture  Trustee in the assertion or defense of its claims in any such Proceeding involving the Issuer.  Section 15.18.  No Joint Venture.  Nothing herein contained shall be deemed or  construed to create a co-partnership or joint venture between the parties hereto and the services  of the Servicer shall be rendered as an independent contractor and not as agent for the Indenture  Trustee or the Issuer.  Section 15.19.  Rule 144A Information.  For so long as any of the Notes are  “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer  agrees to reasonably cooperate to provide to any Noteholders and to any prospective purchaser of  Notes designated by such Noteholder upon the request of such Noteholder or prospective  purchaser, any information required to be provided to such holder or prospective purchaser to  satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act if at the time of the  request the Issuer is not a reporting company under Section 13 or Section 15(d) of the Exchange  Act and the Servicer agrees to reasonably cooperate with the Issuer and the Indenture Trustee in  connection with the foregoing.  Section 15.20.  No Waiver; Cumulative Remedies.  No failure to exercise and no  delay in exercising, on the part of the Indenture Trustee or any Secured Party, any right, remedy,  power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial  exercise of any right, remedy, power or privilege hereunder preclude any other or further  exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights,  remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights,  remedies, powers and privileges provided by Law.  Section 15.21.  Third-Party Beneficiaries.  This Indenture will inure to the benefit of  and be binding upon the parties hereto, the Secured Parties, and their respective successors and  permitted assigns.  Except as otherwise provided in this Article 15, no other Person will have any  right or obligation hereunder.  Section 15.22.  Merger and Integration.  Except as specifically stated otherwise  herein, this Indenture sets forth the entire understanding of the parties relating to the subject  matter hereof, and all prior understandings, written or oral, are superseded by this Indenture.  114  4131-7075-5128  Section 15.23.  Rules by the Indenture Trustee.  The Indenture Trustee may make  reasonable rules for action by or at a meeting of any Secured Parties.  Section 15.24.  Duplicate Originals.  The parties may sign any number of copies of  this Indenture.  One signed copy is enough to prove this Indenture.  Section 15.25.  Waiver of Trial by Jury.  To the extent permitted by applicable Law,  each of the Secured Parties irrevocably waives all right of trial by jury in any action or  Proceeding arising out of or in connection with this Indenture or the Transaction Documents or  any matter arising hereunder or thereunder.  Section 15.26.  No Impairment.  Except for actions expressly authorized by this  Indenture, the Indenture Trustee shall take no action reasonably likely to impair the interests of  the Issuer in any asset of the Trust Estate now existing or hereafter created or to impair the value  of any asset of the Trust Estate now existing or hereafter created.  Section 15.27.  Owner Trustee Limitation of Liability.  It is expressly understood  and agreed by the parties hereto that (i) this Indenture is executed and delivered by Wilmington  Savings Fund Society, FSB , not individually or personally but solely as Owner Trustee of the  Issuer, in the exercise of the powers and authority conferred and vested in it, (ii) each of the  representations, undertakings and agreements herein made on the part of the Issuer is made and  intended not as personal representations, undertakings and agreements by the Owner Trustee but  made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall  be construed as creating any liability on the Owner Trustee, individually or personally, to  perform any covenants, either expressed or implied, contained herein, all personal liability, if  any, being expressly waived by the parties hereto and by any person claiming by, through or  under the parties hereto, (iv) the Owner Trustee has made no investigation as to the accuracy or  completeness of any representations and warranties made by the Issuer in this Indenture and (v)  under no circumstances shall the Owner Trustee be personally liable for the payment of any  indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation,  representation, warranty or covenant made or undertaken by the Issuer under this Indenture or  any other related document.  [THIS SPACE LEFT INTENTIONALLY BLANK]  4131-7075-5128  IN WITNESS WHEREOF, the Indenture Trustee, the Issuer, the Securities Intermediary  and the Depositary Bank have caused this Indenture to be duly executed by their respective duly  authorized officers as of the day and year first written above.  OPORTUN CCW TRUST,  as Issuer  By:  Wilmington Savings Fund Society, FSB ,  not in its individual capacity, but solely as Owner  Trustee of the Issuer  By: _______________________________________  Name:    Title:      





 






4131-7075-5128  WILMINGTON TRUST, NATIONAL  ASSOCIATION, not in its individual capacity, but  solely as Indenture Trustee  By: _______________________________________  Name:  Title:  WILMINGTON TRUST, NATIONAL  ASSOCIATION, not in its individual capacity, but  solely as Securities Intermediary  By: _______________________________________  Name:  Title:  WILMINGTON TRUST, NATIONAL  ASSOCIATION, not in its individual capacity, but  solely as Depositary Bank  By: _______________________________________  Name:  Title:  A-1  4131-7075-5128  EXHIBIT A  TO INDENTURE  Form of Release and Reconveyance of Trust Estate  [To be inserted]  B-1  4131-7075-5128  EXHIBIT B  TO INDENTURE  Form of Lien Release [To be inserted]  C-1  4131-7075-5128  EXHIBIT C  FORM OF CLASS A NOTE  [To be inserted] 





 






D-1  4131-7075-5128  EXHIBIT D  FORM OF MONTHLY STATEMENT  (attached)  Schedule 1-1  4131-7075-5128  Schedule 1  PERFECTION REPRESENTATIONS, WARRANTIES  AND COVENANTS  In addition to the representations, warranties and covenants contained in the Indenture, the Issuer  hereby represents, warrants, and covenants to the Indenture Trustee as follows on the Closing  Date:  General  1. The Indenture creates a valid and continuing security interest (as defined in the applicable  UCC) in the Trust Estate in favor of the Indenture Trustee, which security interest is prior to all  other Liens, and is enforceable as such as against creditors of and purchasers from the Issuer.  2. The Receivables constitute “accounts” or “general intangibles” within the meaning of the  UCC as in effect in the State of New York.  3. Each of the Trust Accounts and all subaccounts thereof constitute either a deposit account  or a securities account.  Creation  4. The Issuer owns and has good and marketable title to the Receivables free and clear of  any Lien, claim or encumbrance of any Person (excepting only Permitted Encumbrances).  Perfection  5. The Issuer has caused or will have caused, within ten (10) days after the effective date of  the Indenture, the filing of all appropriate financing statements in the proper filing office in the  appropriate jurisdictions under applicable Law in order to perfect the sale of the Receivables  from the Depositor and the Depositor Receivables Trustee for the benefit of the Depositor to the  Issuer, and the security interest in the Trust Estate granted to the Indenture Trustee hereunder,  and all financing statements referred to in this paragraph contain or will contain when filed a  statement that: “A purchase of or security interest in any collateral described in this financing  statement will violate the rights of the secured party.”  8. With respect to each of the Trust Accounts and all subaccounts that constitute deposit  accounts, either:  (i)  The Issuer has delivered to the Indenture Trustee a fully executed agreement  pursuant to which the bank maintaining the deposit accounts has agreed to comply with  all instructions originated by the Indenture Trustee directing disposition of the funds in  the Trust Accounts without further consent by the Issuer; or  (ii)   The Issuer has taken all steps necessary to cause the Indenture Trustee to become  the account holder of the Trust Accounts.  Schedule 1-2  4131-7075-5128  9. With respect to each of the Trust Accounts or subaccounts thereof that constitute  securities accounts or securities entitlements, either:  (i)  The Issuer has delivered to the Indenture Trustee a fully executed agreement  pursuant to which the securities intermediary has agreed to comply with all instructions  originated by the Indenture Trustee relating to the Trust Accounts without further consent  by the Issuer; or  (ii)  The Issuer has taken all steps necessary to cause the securities intermediary to  identify in its records the Indenture Trustee as the person having a security entitlement  against the securities intermediary in each of the Trust Accounts.  Priority  10. The Issuer has not authorized the filing of, or is aware of any financing statements against  the Issuer that include a description of collateral covering the Receivables or the Trust Accounts  or any subaccount thereof other than those that have been released or any financing statement (i)  relating to the conveyance of Receivables by an Originator to the Seller or to the Depositor and  the Depositor Receivables Trustee for the benefit of the Depositor, (ii) relating to the conveyance  of the Receivables by the Seller to the Depositor and the Depositor Receivables Trustee under  the Purchase Agreement, (iii) relating to the conveyance of the Receivable by the Depositor and  the Depositor Receivables Trustee to the Issuer under the Transfer Agreement, (iv) relating to the  security interest granted to the Indenture Trustee hereunder or (v) that has been terminated.  11. The Issuer is not aware of any judgment, ERISA or tax lien filings against the Issuer.  12. None of the Trust Accounts nor any subaccount thereof are in the name of any Person  other than the Indenture Trustee.  The Issuer has not consented to the bank maintaining the Trust  Accounts that constitute deposit accounts to comply with instructions of any person other than  the Indenture Trustee.  The Issuer has not consented to the securities intermediary of any Trust  Account that constitutes a securities account to comply with entitlement orders of any Person  other than the Indenture Trustee.  15. Survival of Perfection Representations.  Notwithstanding any other provision of the  Indenture or any other Transaction Document, the Perfection Representations contained in this  Schedule shall be continuing, and remain in full force and effect until such time as the Secured  Obligations under the Indenture have been finally and fully paid and performed.  16. Issuer to Maintain Perfection and Priority.  The Issuer covenants that, in order to  evidence the interests of the Indenture Trustee under this Indenture, the Issuer shall take such  action, or execute and deliver such instruments (other than effecting a Filing (as defined below),  unless such Filing is effected in accordance with this paragraph) as may be necessary or  advisable (including, without limitation, such actions as are requested by the Indenture Trustee)  to maintain and perfect, as a first priority interest, the Indenture Trustee’s security interest in the  Trust Estate.  The Issuer shall, from time to time and within the time limits established by Law,  prepare and present to the Indenture Trustee for the Indenture Trustee to authorize the Issuer to  file, all financing statements, amendments, continuations, terminations, partial terminations,  releases or partial releases, or any other filings necessary or advisable to continue, maintain and  Schedule 1-3  4131-7075-5128  perfect the Indenture Trustee’s security interest in the Trust Estate as a first-priority interest  (each a “Filing”).    





 






Schedule 2-1  4131-7075-5128  SCHEDULE 2  LIST OF PROCEEDINGS  [None]