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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
 
 
FORM 10-Q
 
 
 
 
(MARK ONE)
ý
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2016
OR
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM                 TO
Commission File Number 001-36779
 
 
 
 
On Deck Capital, Inc.
(Exact name of registrant as specified in its charter)
 
 
 
 
Delaware
 
42-1709682
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
 
 
 
1400 Broadway, 25th Floor, New York, New York
 
10018
(Address of principal executive offices)
 
(Zip Code)

(888) 269-4246
(Registrant’s telephone number, including area code)
 
 
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    YES ý     NO  ¨ 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data file required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    YES  ý    NO  ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
 
¨
 
Accelerated filer
 
x
Non-accelerated filer
 
¨  (Do not check if a smaller reporting company)
 
Smaller reporting company
 
¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    YES  ¨    NO  ý
The number of shares of the registrant’s common stock outstanding as of July 31, 2016 was 70,923,349.

 

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On Deck Capital, Inc.
Table of Contents
 
 
 
Page
PART I - FINANCIAL INFORMATION
 
 
 
Item 1.
 
 
 
 
Item 2.
Item 3.
Item 4.
 
 
 
 
 
 
Item 1.
Item 1A.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6
 
 
 
 

Table of Contents

PART I
 
Item 1.
Financial Statements (Unaudited)
ON DECK CAPITAL, INC. AND SUBSIDIARIES
Unaudited Condensed Consolidated Balance Sheets
(in thousands, except share and per share data)
 
 
June 30,
 
December 31,
 
2016
 
2015
Assets
 
 
 
Cash and cash equivalents
$
78,063

 
$
159,822

Restricted cash
39,816

 
38,463

Loans held for investment
804,398

 
552,742

Less: Allowance for loan losses
(73,849
)
 
(53,311
)
Loans held for investment, net
730,549


499,431

Loans held for sale
3,837

 
706

Property, equipment and software, net
30,428

 
26,187

Other assets
19,026

 
20,416

Total assets
$
901,719


$
745,025

Liabilities and equity
 
 
 
Liabilities:
 
 
 
Accounts payable
$
3,876

 
$
2,701

Interest payable
1,129

 
757

Funding debt
553,923

 
375,890

Corporate debt
2,698

 
2,695

Accrued expenses and other liabilities
32,364

 
33,560

Total liabilities
593,990


415,603

Commitments and contingencies (Note 9)

 

Stockholders’ equity (deficit):
 
 
 
Common stock—$0.005 par value, 1,000,000,000 shares authorized and 73,965,278 and 73,107,848 shares issued and 70,888,229 and 70,060,208 outstanding at June 30, 2016 and December 31, 2015, respectively
370

 
366

Treasury stock—at cost
(6,096
)
 
(5,843
)
Additional paid-in capital
467,223

 
457,003

Accumulated deficit
(158,816
)
 
(128,341
)
Accumulated other comprehensive loss
(265
)
 
(372
)
Total On Deck Capital, Inc. stockholders' equity
302,416

 
322,813

Noncontrolling interest
5,313

 
6,609

Total equity
307,729


329,422

Total liabilities and equity
$
901,719


$
745,025

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.


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ON DECK CAPITAL, INC. AND SUBSIDIARIES
Unaudited Condensed Consolidated Statements of Operations and Comprehensive Income
(in thousands, except share and per share data)
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
Revenue:
 
 
 
 
 
 
 
Interest income
$
63,886

 
$
50,248

 
$
117,365

 
$
98,947

Gain on sales of loans
2,813

 
11,710

 
9,924

 
18,389

Other revenue
2,803

 
1,354

 
4,828

 
2,434

Gross revenue
69,502

 
63,312

 
132,117

 
119,770

Cost of revenue:
 
 
 
 
 
 
 
Provision for loan losses
32,271

 
15,526

 
57,708

 
38,626

Funding costs
8,374

 
4,771

 
14,096

 
9,816

Total cost of revenue
40,645

 
20,297

 
71,804

 
48,442

Net revenue
28,857

 
43,015

 
60,313

 
71,328

Operating expense:
 
 
 
 
 
 
 
Sales and marketing
16,757

 
14,981

 
33,305

 
27,656

Technology and analytics
13,757

 
10,206

 
27,844

 
18,794

Processing and servicing
4,865

 
3,015

 
9,080

 
5,717

General and administrative
12,149

 
9,991

 
21,858

 
19,576

Total operating expense
47,528

 
38,193

 
92,087

 
71,743

Income (loss) from operations
(18,671
)
 
4,822

 
(31,774
)
 
(415
)
Other expense:
 
 
 
 
 
 
 
Interest expense
(37
)
 
(74
)
 
(75
)
 
(180
)
Total other expense
(37
)
 
(74
)
 
(75
)
 
(180
)
Income (loss) before provision for income taxes
(18,708
)
 
4,748

 
(31,849
)
 
(595
)
Provision for income taxes
—

 
—

 
—

 
—

Net income (loss)
(18,708
)
 
4,748

 
(31,849
)
 
(595
)
Net loss attributable to noncontrolling interests
813

 
232

 
1,381

 
232

Net income (loss) attributable to On Deck Capital, Inc. common stockholders
$
(17,895
)

$
4,980

 
$
(30,468
)
 
$
(363
)
Net income (loss) per share attributable to On Deck Capital, Inc. common stockholders:
 
 
 
 
 
 
 
Basic
$
(0.25
)
 
$
0.07

 
$
(0.43
)
 
$
(0.01
)
Diluted
$
(0.25
)
 
$
0.07

 
$
(0.43
)
 
$
(0.01
)
Weighted-average common shares outstanding:
 
 
 
 
 
 
 
Basic
70,712,142

 
69,479,737

 
70,588,784

 
69,366,278

Diluted
70,712,142

 
75,680,290

 
70,588,784

 
69,366,278

Comprehensive income (loss):
 
 
 
 
 
 
 
Net income (loss)
$
(18,708
)
 
$
4,748

 
$
(31,849
)
 
$
(595
)
Other comprehensive loss:
 
 
 
 
 
 
 
Foreign currency translation adjustment
(326
)
 
61

 
192

 
61

Comprehensive income (loss):
(19,034
)
 
4,809

 
(31,657
)
 
(534
)
Comprehensive loss attributable to noncontrolling interests
147

 
(29
)
 
(85
)
 
(29
)
Net loss attributable to noncontrolling interests
813

 
232

 
1,381

 
232

Comprehensive income (loss) attributable to On Deck Capital, Inc. common stockholders
$
(18,074
)
 
$
5,012

 
$
(30,361
)
 
$
(331
)
 
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

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ON DECK CAPITAL, INC. AND SUBSIDIARIES
Unaudited Condensed Consolidated Statements of Cash Flows
(in thousands)
 
Six Months Ended June 30,
 
2016
 
2015
Cash flows from operating activities
 
 
 
Net loss
$
(31,849
)
 
$
(595
)
Adjustments to reconcile net loss to net cash provided by operating activities:

 

Provision for loan losses
57,708

 
38,626

Depreciation and amortization
4,435

 
2,943

Amortization of debt issuance costs
2,969

 
1,332

Stock-based compensation
7,662

 
4,358

Amortization of net deferred origination costs
16,008

 
18,317

Changes in servicing rights, at fair value
3,074

 
—

Gain on sales of loans
(9,924
)
 
(18,389
)
Unfunded loan commitment reserve
(625
)
 
807

Gain on extinguishment of debt
(562
)
 
(48
)
Changes in operating assets and liabilities:

 

Other assets
18

 
(8,823
)
Accounts payable
1,175

 
2,946

Interest payable
372

 
(156
)
Accrued expenses and other liabilities
(229
)
 
7,352

Originations of loans held for sale
(167,207
)
 
(196,119
)
Payments of net deferred origination costs of loans held for sale
(5,769
)
 
(7,954
)
Proceeds from sale of loans held for sale
170,043

 
204,025

Principal repayments of loans held for sale
5,014

 
1,664

Net cash provided by operating activities
52,313


50,286

Cash flows from investing activities
 
 
 
Change in restricted cash
(1,353
)
 
1,179

Purchases of property, equipment and software
(5,494
)
 
(3,896
)
Capitalized internal-use software
(2,610
)
 
(2,254
)
Originations of term loans and lines of credit, excluding rollovers into new originations
(862,454
)
 
(511,726
)
Proceeds from sale of loans held for investment
41,375

 
58,901

Payments of net deferred origination costs
(21,033
)
 
(17,332
)
Principal repayments of term loans and lines of credit
547,305

 
411,628

Purchases of term loans
(6,672
)
 
—

Other
(201
)
 
—

Net cash used in investing activities
(311,137
)

(63,500
)
Cash flows from financing activities
 
 
 
Proceeds from exercise of stock options and warrants
104

 
187

Payments of initial public offering costs
—

 
(1,845
)
Purchase of shares for treasury
(254
)
 
(184
)
Investments by noncontrolling interests
—

 
7,069

Issuance of common stock under employee stock purchase plan
1,487

 
—

Proceeds from the issuance of funding debt
491,742

 
110,728

Payments of debt issuance costs
(3,740
)
 
(1,133
)
Repayments of funding debt principal
(312,442
)
 
(130,226
)

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Six Months Ended June 30,
 
2016
 
2015
Repayments of corporate debt principal
—

 
(12,000
)
Net cash provided by (used in) financing activities
176,897


(27,404
)
Effect of exchange rate changes on cash and cash equivalents
168

 
(123
)
Net decrease in cash and cash equivalents
(81,759
)
 
(40,741
)
Cash and cash equivalents at beginning of period
159,822

 
220,433

Cash and cash equivalents at end of period
$
78,063


$
179,692

Supplemental disclosure of other cash flow information
 
 
 
Cash paid for interest
$
9,447

 
$
8,087

Supplemental disclosures of non-cash investing and financing activities
 
 
 
Stock-based compensation included in capitalized internal-use software
$
647

 
$
360

Unpaid principal balance of term loans rolled into new originations
$
129,688

 
$
127,174


The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

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ON DECK CAPITAL, INC. AND SUBSIDIARIES
Notes to Unaudited Consolidated Financial Statements

1. Organization and Summary of Significant Accounting Policies
On Deck Capital, Inc.’s principal activity is providing financing to small businesses located throughout the United States as well as Canada and Australia, through term loans and lines of credit. We use technology and analytics to aggregate data about a business and then quickly and efficiently analyze the creditworthiness of the business using our proprietary credit-scoring model. We originate most of the loans in our portfolio and also purchase loans from issuing bank partners. We subsequently transfer most loans into one of our wholly-owned subsidiaries or sell them through OnDeck Marketplace®.
Basis of Presentation and Principles of Consolidation
The accompanying unaudited condensed consolidated financial statements and footnotes have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") as contained in the Financial Accounting Standards Board (‘‘FASB’’) Accounting Standards Codification (“ASC”) for interim financial information. The results of operations for the periods presented are not necessarily indicative of the results for the full year or the results for any future periods. These unaudited condensed consolidated financial statements should be read in conjunction with our audited consolidated financial statements, including the related notes, and the other information contained in our Annual Report on Form 10-K for the year ended December 31, 2015. Certain reclassifications have been made to the prior period amounts to conform to the current period presentation. When used in these notes to unaudited condensed consolidated financial statements, the terms "we," "us," "our" or similar terms refers to On Deck Capital, Inc. and its consolidated subsidiaries.
The unaudited condensed consolidated financial statements include the accounts of our wholly-owned subsidiaries and subsidiaries in which we have a controlling financial interest. All intercompany transactions and accounts have been eliminated in consolidation.
Other than as described below in Recently Adopted Accounting Standards, during the six months ended June 30, 2016, there were no material changes to our significant accounting policies as disclosed under Part II, Item 8 of our Annual Report on Form 10-K for the year ended December 31, 2015.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires us to make estimates and assumptions that affect the reported amounts in the unaudited condensed consolidated financial statements and accompanying notes. Significant estimates include allowance for loan losses, valuation of warrants, stock-based compensation expense, fair value of servicing assets/liabilities and loans purchased, capitalized software development costs, the useful lives of long-lived assets and valuation allowance for deferred tax assets. We base our estimates on historical experience, current events and other factors we believe to be reasonable under the circumstances. These estimates and assumptions are inherently subjective in nature; actual results may differ from these estimates and assumptions.
Purchases of Loans
From time to time, we may purchase loans that we previously sold to third parties. We generally determine the price we are willing to pay for those loans through arms-length negotiations and by using a discounted cash flow model which contain certain unobservable inputs such as discount rate, renewal rate and default rate, with adjustments that management believes a market participant would consider. We may also obtain third-party valuations of pools of loans we are considering purchasing. Upon purchase, loans are recorded at their acquisition price which represents fair value. The amortized cost of the purchased loans, which includes unpaid principal balances and any related premiums or discounts, when applicable, are included in loans held for investment on the unaudited condensed consolidated balance sheets.
Recently Adopted Accounting Standards
In April 2015, the FASB issued Accounting Standards Update ("ASU") 2015-03, Interest—Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Costs. The ASU simplifies the presentation of debt issuance costs by requiring that unamortized debt issuance costs be presented as a reduction of the applicable liability rather than an asset. The guidance is effective beginning on January 1, 2016 and is required to be applied retrospectively. Accordingly, $4.2 million of deferred debt issuance costs on the consolidated balance sheet at December 31, 2015 have been reclassified to be presented as a reduction of the carrying value of the associated debt to conform with the current period presentation.
Recent Accounting Pronouncements Not Yet Adopted
In May 2014, the FASB issued ASU 2014-09, Revenue Recognition, which creates ASC 606, Revenue from Contracts with Customers, and supersedes ASC 605, Revenue Recognition. ASU 2014-09 requires revenue to be recognized in an amount that

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reflects the consideration to which the entity expects to be entitled in exchange for goods or services and also requires additional disclosure about the nature, amount, timing, and uncertainty of revenue and cash flows from customer contracts. The new guidance will be effective for annual reporting periods beginning after December 15, 2017, including interim periods within that reporting period. Early adoption is permitted, but not before the original effective date of December 15, 2016. In March 2016, the FASB issued ASU 2016-08, Principal versus Agent Considerations, which makes amendments to the new revenue standard on assessing whether an entity is a principal or an agent in a revenue transaction and impacts whether an entity reports revenue on a gross or net basis. In April 2016, the FASB issued ASU 2016-10, Identifying Performance Obligations and Licensing, which makes amendments to the new revenue standard regarding the identification of performance obligations and accounting for the license of intellectual property. In May 2016, the FASB issued ASU 2016-12, Narrow-Scope Improvements and Practical Expedients, which makes amendments to the new revenue standard regarding assessing collectibility, presentation of sales taxes, noncash consideration and completed contracts and contract modifications at the time of transition to the new standard. The amendments have the same effective date and transition requirements as the new revenue recognition standard. We are currently assessing the impact that the adoption of this guidance will have on our consolidated financial statements.
In February 2016, the FASB issued ASU 2016-02, Leases, which creates ASC 842, Leases, and supersedes ASC 840, Leases. ASU 2016-02 requires lessees to recognize a right-of-use asset and lease liability for all leases with terms of more than 12 months. Recognition, measurement and presentation of expenses will depend on classification as a finance or operating lease. The new guidance will be effective for annual reporting periods beginning after December 15, 2018, including interim periods within that reporting period and is applied retrospectively. Early adoption is permitted. We are currently assessing the impact that the adoption of this guidance will have on our consolidated financial statements.
In March 2016, the FASB issued ASU 2016-09, Improvements to Employee Share-Based Payment Accounting. ASU 2016-09 will simplify several aspects of accounting for share-based payment award transactions which include the income tax consequences, classification of awards as either equity or liabilities, classification on the statement of cash flows and forfeiture rate calculations. The new guidance will be effective for annual reporting periods beginning after December 15, 2016. Early adoption is permitted in any interim or annual period. We are currently assessing the impact that the adoption of this guidance will have on our consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, Measurement of Credit Losses on Financial Instruments. ASU 2016-13 will change the impairment model and how entities measure credit losses for most financial assets. The standard requires entities to use the new expected credit loss impairment model which will replace the incurred loss model used today. The new guidance will be effective for annual reporting periods beginning after December 15, 2019. Early adoption is permitted, but not prior to December 15, 2018. We are currently assessing the impact that the adoption of this guidance will have on our consolidated financial statements.


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2. Net Loss Per Common Share
Basic and diluted net loss per common share is calculated as follows (in thousands, except share and per share data):
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
Numerator:
 
 
 
 
 
 
 
Net income (loss)
$
(18,708
)
 
$
4,748

 
$
(31,849
)
 
$
(595
)
Less: net loss attributable to noncontrolling interest
813

 
232

 
1,381

 
232

Net income (loss) attributable to On Deck Capital, Inc. common stockholders
$
(17,895
)
 
$
4,980

 
$
(30,468
)
 
$
(363
)
Denominator:
 
 
 
 
 
 
 
Weighted-average common shares outstanding:
 
 
 
 
 
 
 
Basic
70,712,142

 
69,479,737

 
70,588,784

 
69,366,278

Weighted-average effect of dilutive securities:
 
 
 
 
 
 
 
Stock options
—

 
5,819,581

 
—

 
—

Restricted stock and RSU's
—

 
40,032

 
—

 
—

Employee stock purchase program
—

 
58,776

 
—

 
—

Warrants to purchase common stock
—

 
282,164

 
—

 
—

Diluted weighted-average common shares outstanding
70,712,142

 
75,680,290

 
70,588,784

 
69,366,278

Net income (loss) attributable to On Deck Capital, Inc. common stockholders per common share:
 
 
 
 
 
 
 
Basic
$
(0.25
)
 
$
0.07

 
$
(0.43
)
 
$
(0.01
)
Diluted
$
(0.25
)
 
$
0.07

 
$
(0.43
)
 
$
(0.01
)
Diluted loss per common share is the same as basic loss per common share for all loss periods presented because the effects of potentially dilutive items were anti-dilutive given our net losses in those periods. The following common share equivalent securities have been excluded from the calculation of weighted-average common shares outstanding because the effect is anti-dilutive for the periods presented: 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
Anti-Dilutive Common Share Equivalents
 
 
 
 
 
 
 
Warrants to purchase common stock
22,000

 
22,000

 
22,000

 
309,792

Restricted stock units
3,356,202

 
351,737

 
3,356,202

 
555,666

Stock options
10,692,143

 
1,125,043

 
10,692,143

 
9,911,822

Total anti-dilutive common share equivalents
14,070,345

 
1,498,780

 
14,070,345

 
10,777,280

The weighted-average exercise price for warrants to purchase 2,228,496 shares of common stock was $10.70 as of June 30, 2016. For the three months and six months ended June 30, 2016 and 2015 a warrant to purchase 2,206,496 shares of common stock was excluded from anti-dilutive common share equivalents as performance conditions had not been met.


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3. Loans Held for Investment and Allowance for Loan Losses
Loans held for investment consisted of the following as of June 30, 2016 and December 31, 2015 (in thousands):
 
June 30, 2016
 
December 31, 2015
Term loans
$
697,862

 
$
482,596

Lines of credit
92,559

 
61,194

Total unpaid principal balance
790,421

 
543,790

Net deferred origination costs
13,977

 
8,952

Total loans held for investment
$
804,398

 
$
552,742

On June 15, 2016, we paid $6.7 million to purchase term loans that we previously sold to a third party which are included in the unpaid principal balance of loans held for investment on the unaudited condensed consolidated balance sheets at June 30, 2016.
We include both loans we originate and loans funded by our issuing bank partners and later purchased by us as part of our originations. During the three months ended June 30, 2016 and 2015, we purchased such loans in the amount of $130.2 million and $48.8 million, respectively. During the six months ended June 30, 2016 and 2015, we purchased such loans in the amount of $233.7 million and $103.4 million, respectively.
The activity in the allowance for loan losses for the three and six months ended June 30, 2016 and 2015 consisted of the following (in thousands):
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
Balance at beginning of period
$
61,707

 
$
56,795

 
$
53,311

 
$
49,804

Provision for loan losses
32,271

 
15,526

 
57,708

 
38,626

Loans charged off
(21,625
)
 
(21,155
)
 
(40,143
)
 
(39,014
)
Recoveries of loans previously charged off
1,496

 
1,886

 
2,973

 
3,636

Allowance for loan losses at end of period
$
73,849

 
$
53,052

 
$
73,849

 
$
53,052

When loans are charged-off, we may continue to attempt to recover amounts from the respective borrowers and guarantors or pursue our rights through formal legal action. Alternatively, we may sell such previously charged-off loans to a third-party debt collector. The proceeds from these sales are recorded as a component of the recoveries of loans previously charged off. For the three months ended June 30, 2016 and 2015, previously charged-off loans sold accounted for $0.9 million and $1.3 million, respectively, of recoveries of loans previously charged off. For the six months ended June 30, 2016 and 2015, previously charged-off loans sold accounted for $1.9 million and $2.8 million, respectively, of recoveries of loans previously charged off.
As of June 30, 2016 and December 31, 2015, our off-balance sheet credit exposure related to the undrawn line of credit balances was $127.6 million and $89.1 million, respectively. The related accrual for unfunded loan commitments was $3.6 million and $4.2 million as of June 30, 2016 and December 31, 2015, respectively. Net adjustments to the accrual for unfunded loan commitments are included in general and administrative expenses.
The following table contains information, on a combined basis, regarding the unpaid principal balance of loans we originated and the amortized cost of loans purchased from other than an issuing bank partner related to non-delinquent, paying delinquent and non-paying delinquent loans as of June 30, 2016 and December 31, 2015 (in thousands):
 
June 30, 2016
 
December 31, 2015
Non-delinquent loans
$
727,664

 
$
486,729

Delinquent: paying (accrual status)
29,506

 
28,192

Delinquent: non-paying (non-accrual status)
33,251

 
28,869

Total
$
790,421

 
$
543,790

The portion of the allowance for loan losses attributable to non-delinquent loans was $42.1 million and $27.0 million, as of June 30, 2016 and December 31, 2015, respectively, while the portion of the allowance for loan losses attributable to delinquent loans was $31.7 million and $26.3 million as of June 30, 2016 and December 31, 2015, respectively.

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The following table contains information, on a combined basis, regarding the unpaid principal balance of loans we originated and the amortized cost of loans purchased from other than an issuing bank partner by delinquency status as of June 30, 2016 and December 31, 2015 (in thousands):
 
June 30, 2016
 
December 31, 2015
By delinquency status:
 
 
 
Non-delinquent loans
$
727,664

 
$
486,729

1-14 calendar days past due
20,777

 
21,360

15-29 calendar days past due
11,141

 
8,703

30-59 calendar days past due
13,563

 
10,347

60-89 calendar days past due
9,197

 
7,443

90 + calendar days past due
8,079

 
9,208

Total unpaid principal balance
$
790,421

 
$
543,790

4. Servicing Rights
As of June 30, 2016 and December 31, 2015, we serviced for others term loans with a remaining unpaid principal balance of $259.2 million and $345.9 million, respectively. During the three months ended June 30, 2016 and 2015, we sold through OnDeck Marketplace loans with an unpaid principal balance of $77.2 million and $143.2 million, respectively and during the six months ended June 30, 2016 and 2015, we sold loans with an unpaid principal balance of $197.3 million and $235.2 million, respectively.
For the three months ended June 30, 2016 and 2015, we earned $0.1 million, and $0.9 million of servicing revenue, respectively. For the six months ended June 30, 2016 and 2015, we earned $0.5 million, and $1.4 million of servicing revenue, respectively.
The following table summarizes the activity related to the fair value of our servicing assets for the three and six months ended June 30, 2016:
 
Three Months Ended June 30, 2016
 
Six Months Ended June 30, 2016
Fair value at the beginning of period
$
2,647

 
$
3,489

Addition:
 
 
 
Servicing resulting from transfers of financial assets
626

 
1,574

Changes in fair value:
 
 
 
Changes in fair value (1)
(1,284
)
 
(3,074
)
Fair value at the end of period (Level 3)
$
1,989

 
$
1,989

  ___________
(1) Represents changes due to collection of expected cash flows through June 30, 2016, recognized through other income on the unaudited condensed consolidated statement of operations

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5. Debt
The following table summarizes our outstanding debt as of June 30, 2016 and December 31, 2015 (in thousands):
Description
Type
 
Maturity Date
 
Weighted Average Interest
Rate at June 30, 2016
 
June 30, 2016
 
December 31, 2015
Funding Debt:
 
 
 
 
 
 
 
ODAST Agreement (1)
Securitization Facility
 
May 2018
 
—%
 
$
—

 
$
174,980

PORT Agreement
Revolving
 
June 2017
 
2.7%
 
78,289

 
59,415

RAOD Agreement
Revolving
 
May 2017
 
3.4%
 
99,985

 
47,465

ODART Agreement
Revolving
 
September 2017
 
3.2%
 
62,402

 
42,090

ODAC Agreement
Revolving
 
May 2017
 
9.7%
 
55,002

 
27,699

SBAF Agreement
Revolving
 
Various (2)
 
6.6%
 
7,625

 
12,783

ODAP Agreement
Revolving
 
August 2017 (3)
 
5.0%
 
—

 
8,819

ODAST II Agreement
Securitization Facility
 
May 2020 (4)
 
4.7%
 
250,000

 
—

Partner Synthetic Participations
Term
 
Various (5)
 
Various
 
5,568

 
6,861

 
 
 
 
 
 
 
558,871

 
380,112

Deferred Debt Issuance Cost
 
 
 
 
 
 
(4,948
)
 
(4,222
)
Total Funding Debt
 
 
 
 
 
 
$
553,923

 
$
375,890

 
 
 
 
 
 
 
 
 
 
Corporate Debt:
 
 
 
 
 
 
 
 
 
Square 1 Agreement
Revolving
 
October 2016
 
4.5%
 
$
2,700

 
$
2,700

Deferred Debt Issuance Cost
 
 
 
 
 
 
(2
)
 
(5
)
Total Corporate Debt
 
 
 
 
 
 
$
2,698

 
$
2,695

___________
(1)
This debt facility was terminated in May 2016
(2)
Maturity dates range from August 2016 through August 2017
(3)
The period during which new borrowings may be made under this debt facility expires in August 2016
(4)
The period during which remaining cash flow can be used to purchase additional loans expires April 30, 2018
(5)
Maturity dates range from July 2016 through June 2018

On April 28, 2016, we amended the ODAC Agreement to increase the revolving commitment from an aggregate amount of $50 million to $75 million, increase the interest rate from LIBOR plus 8.25% to LIBOR plus 9.25%, increase in the borrowing base advance rate from 70% to 75% and make certain other related changes.
On May 17, 2016, we, through a wholly-owned subsidiary, ODAST II, entered into a $250 million asset-backed securitization facility with Deutsche Bank Trust Company Americas, as indenture trustee. The notes under the facility were issued in two classes; Class A in the amount of $211.5 million and Class B in the amount of $38.5 million. The Class A and Class B notes bear interest at a fixed rate of 4.21% and 7.63%, respectively. Interest only payments began in June 2016 and are payable monthly through May 2018. Beginning June 2018, monthly payments will consist of both principal and interest with a final maturity of May 2020. Concurrent with the closing of the ODAST II securitization, we voluntarily prepaid in full $175 million of funding debt outstanding from our prior securitization transaction, ODAST. The remaining unamortized deferred issuance costs related to ODAST of $1.6 million were written-off and are included within Funding Costs on the unaudited condensed consolidated statement of operations for the three and six months ended June 30, 2016.
On June 17, 2016, we amended the ODART agreement to reintroduce Class B revolving loans from the Class B Revolving Lender resulting in additional funding capacity of $12.4 million, thereby increasing the total revolving commitment from $150 million to $162.4 million, establishing a Class B interest rate equal to LIBOR plus 8%, a borrowing base advance rate for the Class B revolving loans of 92% and make certain other changes.



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6. Fair Value of Financial Instruments

Assets and Liabilities Measured at Fair Value on a Recurring Basis Using Significant Unobservable Inputs (Level 3)
We evaluate our financial assets and liabilities subject to fair value measurements on a recurring basis to determine the appropriate level at which to classify them for each reporting period. Due to the lack of transparency and quantity of transactions related to trades of servicing rights of comparable loans, we utilize an income valuation technique to estimate fair value. We utilize industry-standard modeling, such as discounted cash flow models, to arrive at an estimate of fair value and may utilize third-party service providers to assist in the valuation process. This determination requires significant judgments to be made.
The following tables present information about our assets that are measured at fair value on a recurring basis as of June 30, 2016 and December 31, 2015 (in thousands):
 
June 30, 2016
Description
Level 1
 
Level 2
 
Level 3
 
Total
Assets:
 
 
 
 
 
 
 
Servicing assets
$
—

 
$
—

 
$
1,989

 
$
1,989

Total assets
$
—

 
$
—

 
$
1,989

 
$
1,989

 
December 31, 2015
Description
Level 1
 
Level 2
 
Level 3
 
Total
Assets:
 
 
 
 
 
 
 
Servicing assets
$
—

 
$
—

 
$
3,489

 
$
3,489

Total assets
$
—

 
$
—

 
$
3,489

 
$
3,489

There were no transfers between levels during the six months ended June 30, 2016 or the year ended December 31, 2015.

The following tables present quantitative information about the significant unobservable inputs used for certain of our Level 3 fair value measurement as of June 30, 2016 and December 31, 2015:

 
 
 
June 30, 2016
 
Unobservable input
 
Minimum
Maximum
Weighted-Average
Servicing Assets
Discount rate
 
30.00
%
30.00
%
30.00
%
 
Cost of service (1)
 
0.08
%
0.13
%
0.10
%
 
Renewal rate
 
42.50
%
57.78
%
50.80
%
 
Default rate
 
10.35
%
10.87
%
10.63
%
 
 
 
December 31, 2015
 
Unobservable input
 
Minimum
Maximum
Weighted-Average
Servicing Assets
Discount rate
 
30.00
%
30.00
%
30.00
%
 
Cost of service (1)
 
0.09
%
0.09
%
0.09
%
 
Renewal rate
 
31.78
%
53.21
%
53.21
%
 
Default rate
 
6.43
%
10.36
%
10.00
%
(1) Estimated cost of servicing a loan as a percentage of unpaid principal balance

Changes in certain of the unobservable inputs noted above may have a significant impact on the fair value of our servicing asset. The following table summarizes the effect adverse changes in estimate would have on the fair value of the servicing assets as of June 30, 2016 and December 31, 2015 given hypothetical changes in default rate and cost to service (in thousands):

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June 30, 2016
 
December 31, 2015
 
Servicing Assets
Default rate assumption:
 
 
 
Default rate increase of 25%
$
(100
)
 
$
(145
)
Default rate increase of 50%
$
(192
)
 
$
(282
)
Cost to service assumption:
 
 
 
Cost to service increase by 25%
$
(55
)
 
$
(79
)
Cost to service increase by 50%
$
(110
)
 
$
(159
)
Assets and Liabilities Disclosed at Fair Value
Because our loans held for investment, loans held for sale and fixed-rate debt are not measured at fair value, we are required to disclose their fair value in accordance with ASC 825. We utilize industry-standard modeling, such as discounted cash flow models, to arrive at an estimate of fair value and may utilize third-party service providers to assist in the valuation process. This determination requires significant judgments to be made.
 
June 30, 2016
Description
Carrying Value
 
Fair Value
 
Level 1
 
Level 2
 
Level 3
Assets:
 
 
 
 
 
 
 
 
 
Loans held for investment
$
730,549

 
$
793,219

 
$
—

 
$
—

 
$
793,219

Loans held for sale
3,837

 
3,997

 
—

 
—

 
3,997

Total assets
$
734,386

 
$
797,216

 
$
—

 
$
—

 
$
797,216

 
 
 
 
 
 
 
 
 
 
Description
 
 
 
 
 
 
 
 
 
Liabilities:
 
 
 
 
 
 
 
 
 
Fixed-rate debt
$
263,193

 
$
252,561

 
$
—

 
$
—

 
$
252,561

Total fixed-rate debt
$
263,193

 
$
252,561

 
$
—

 
$
—

 
$
252,561

 
December 31, 2015
Description
Carrying Value
 
Fair Value
 
Level 1
 
Level 2
 
Level 3
Assets:
 
 
 
 
 
 
 
 
 
Loans held for investment
$
499,431

 
$
545,740

 
$
—

 
$
—

 
$
545,740

Loans held for sale
706

 
763

 
—

 
—

 
763

Total assets
$
500,137

 
$
546,503

 
$
—

 
$
—

 
$
546,503

 
 
 
 
 
 
 
 
 
 
Description
 
 
 
 
 
 
 
 
 
Liabilities:
 
 
 
 
 
 
 
 
 
Fixed-rate debt
$
194,624

 
$
190,411

 
$
—

 
$
—

 
$
190,411

Total fixed-rate debt
$
194,624

 
$
190,411

 
$
—

 
$
—

 
$
190,411

The following techniques and assumptions are used in estimating fair value:
Loans held for investment and loans held for sale - Fair value is based on discounted cash flow models which contain certain unobservable inputs such as discount rate, renewal rate and default rate.
Fixed-rate debt - Our ODAST Agreement, ODAST II Agreement, SBAF Agreement and Partner Synthetic Participations are considered fixed-rate debt. Fair value of our fixed-rate debt is based on a discounted cash flow model with the discount rate being an unobservable input. On May 17, 2016, we voluntarily prepaid in full all amounts due under the ODAST Agreement and simultaneously entered into the ODAST II Agreement.

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7. Noncontrolling Interest
The following table summarizes changes in equity, including the equity attributable to noncontrolling interests, for the six months ended June 30, 2016 and June 30, 2015:
 
 
Six Months Ended June 30, 2016
 
 
On Deck Capital, Inc.'s stockholders' equity
 
Noncontrolling interest
 
Total
Balance as of January 1, 2016
 
$
322,813

 
$
6,609

 
$
329,422

Net income (loss)
 
(30,468
)
 
(1,381
)
 
(31,849
)
Stock-based compensation
 
7,416

 
—

 
7,416

Employee stock purchase plan
 
2,665

 
—

 
2,665

Cumulative translation adjustment
 
107

 
85

 
192

Other
 
(117
)
 
—

 
(117
)
Balance at June 30, 2016
 
302,416

 
5,313

 
307,729

 
 
 
 
 
 
 
Comprehensive loss:
 
 
 
 
 
 
Net loss
 
(30,468
)
 
(1,381
)
 
(31,849
)
Other comprehensive income (loss):
 
 
 
 
 
 
Foreign currency translation adjustment
 
107

 
85

 
192

Comprehensive income (loss):
 
$
(30,361
)
 
$
(1,296
)
 
$
(31,657
)
 
 
Six Months Ended June 30, 2015
 
 
On Deck Capital, Inc.'s stockholders' equity
 
Noncontrolling interest
 
Total
Balance as of January 1, 2015
 
$
310,605

 
$
—

 
$
310,605

Net income (loss)
 
(363
)
 
(232
)
 
(595
)
Stock-based compensation(1)
 
4,135

 
—

 
4,135

OnDeck Australia capitalization
 
—

 
6,870

 
6,870

Cumulative translation adjustment
 
32

 
29

 
61

Other
 
(231
)
 
—

 
(231
)
Balance at June 30, 2015
 
314,178

 
6,667

 
320,845

 
 
 
 
 
 
 
Comprehensive loss:
 
 
 
 
 
 
Net loss
 
(363
)
 
(232
)
 
(595
)
Other comprehensive income (loss):
 
 
 
 
 
 
Foreign currency translation adjustment
 
32

 
29

 
61

Comprehensive income (loss):
 
$
(331
)
 
$
(203
)
 
$
(534
)
___________
(1) Includes only the amount of stock-based compensation recognized through additional paid-in capital and does not include stock-based compensation from the employee stock purchase plans or capitalized internal-use software costs.
In the second quarter of 2015, we acquired a 55% interest in On Deck Capital Australia PTY LTD ("OnDeck Australia") with the remaining 45% owned by unrelated third parties. Additionally, in the third quarter of 2015, we acquired a 67% interest in an entity with the remaining 33% owned by an unrelated third party strategic partner for the purpose of providing small business loans to customers of the third party. We consolidate the financial position and results of operations of these entities. The noncontrolling interest, which is presented as a separate component of our consolidated equity, represents the minority owner's proportionate share of the equity of the jointly owned entities. The noncontrolling interest is adjusted for the minority owner's share of the earnings, losses, investments and distributions.


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8. Stock-Based Compensation
Options
The following table summarizes option activity for the six months ended June 30, 2016:
 
Number of
Options
 
Weighted-
Average
Exercise
Price
 
Weighted-
Average
Remaining
Contractual
Term
(in years)
 
Aggregate
Intrinsic
Value
(in thousands)
Outstanding at January 1, 2016
10,711,321

 
$
6.16

 
 
 
 
Granted
447,732

 
$
6.24

 
 
 
 
Exercised
(253,894
)
 
$
0.50

 
 
 
 
Forfeited
(171,103
)
 
$
9.76

 
 
 
 
Expired
(41,913
)
 
$
12.91

 
 
 
 
Outstanding at June 30, 2016
10,692,143

 
$
6.20

 
7.47
 
$
22,984

Exercisable at June 30, 2016
6,010,981

 
$
3.80

 
6.80
 
$
19,104

Vested or expected to vest as of June 30, 2016
10,509,124

 
$
6.11

 
7.47
 
$
22,935

Total compensation cost related to unvested option awards not yet recognized as of June 30, 2016 was $17.5 million and will be recognized over a weighted-average period of approximately 2.39 years. The aggregate intrinsic value of employee options exercised during the three months ended June 30, 2016 and 2015 was $0.6 million and $1.7 million, respectively. The aggregate intrinsic value of employee options exercised during the six months ended June 30, 2016 and 2015 was $1.5 million and $7.8 million, respectively.
Restricted Stock Units
The following table summarizes activity in our restricted stock units ("RSUs") during the six months ended June 30, 2016:
 
Number of RSUs
 
Weighted-Average Grant Date Fair Value
Unvested at January 1, 2016
1,853,452

 
$
12.85

RSUs granted
1,790,942

 
$
7.11

RSUs vested
(106,839
)
 
$
18.45

RSUs forfeited/expired
(181,353
)
 
$
10.81

Unvested at June 30, 2016
3,356,202

 
$
9.72

Expected to vest after June 30, 2016
2,546,144

 
$
10.31

As of June 30, 2016, there was $20.8 million of unrecognized compensation cost related to unvested RSUs, which is expected to be recognized over the next 3.25 years.
Stock-based compensation expense related to stock options, RSUs and the 2014 Employee Stock Purchase Plan are included in the following line items in our accompanying consolidated statements of operations for the three and six months ended June 30, 2016 and 2015 (in thousands):
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
Sales and marketing
$
941

 
$
594

 
$
1,829

 
$
1,168

Technology and analytics
887

 
504

 
1,644

 
941

Processing and servicing
211

 
156

 
554

 
303

General and administrative
1,871

 
1,062

 
3,635

 
1,946

Total
$
3,910

 
$
2,316

 
$
7,662

 
$
4,358


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Table of Contents

9. Commitments and Contingencies
Concentrations of Credit Risk
Financial instruments that potentially subject us to significant concentrations of credit risk consist principally of cash, cash equivalents, restricted cash and loans. We hold cash, cash equivalents and restricted cash in accounts at regulated domestic financial institutions in amounts that exceed or may exceed FDIC insured amounts and at non-U.S. financial institutions where deposited amounts may be uninsured. We believe these institutions to be of acceptable credit quality and we have not experienced any related losses to date.
Contingencies
Two separate putative class actions were filed in August 2015 in the United States District Court for the Southern District of New York against us, certain of our executive officers, our directors and certain or all of the underwriters of our initial public offering. The suits allege that the registration statement and prospectus for our initial public offering contained materially false and misleading statements regarding, or failed to disclose, certain information in violation of the Securities Act of 1933, as amended. The suits seek a determination that the case is a proper class action and/or certification of the plaintiff as a class representative, rescission or a rescissory measure of damages and/or unspecified damages, interest, attorneys’ fees and other fees and costs. On February 18, 2016, the court issued an order (1) consolidating the two cases, (2) selecting the lead plaintiff and (3) appointing lead class counsel.  On March 18, 2016, the lead plaintiff filed an amended complaint. On April 14, 2016, the court approved a schedule allowing the defendants 60 days to file a motion to dismiss, allowing the plaintiff to file any opposition within 60 days of the filing of the motion to dismiss and allowing the defendants to file a reply within 30 days after the filing of plaintiff’s opposition. On June 13, 2016, we filed a motion to dismiss the case. On August 4, 2016, the court approved an extension of plaintiff's time to file his opposition to the motion to dismiss from August 12, 2016 to September 2, 2016. We intend to defend ourselves vigorously in these consolidated matters, although at this time we cannot predict the outcome.
From time to time we are subject to other legal proceedings and claims in the ordinary course of business. The results of such matters cannot be predicted with certainty. However, we believe that the final outcome of any such current matters will not result in a material adverse effect on our consolidated financial condition, consolidated results of operations or consolidated cash flows.


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Table of Contents

Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
You should read the following discussion and analysis of our financial condition and results of operations together with our condensed consolidated financial statements and the related notes and other financial information included elsewhere in this report and in conjunction with our Annual Report on Form 10-K for the year ended December 31, 2015, as filed with the Securities and Exchange Commission, or SEC, on March 3, 2016. Some of the information contained in this discussion and analysis, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should review the “Cautionary Note Regarding Forward-Looking Statements” below for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other legal authority. These forward-looking statements concern our operations, economic performance, financial condition, goals, beliefs, future growth strategies, objectives, plans and current expectations.
Forward-looking statements appear throughout this report, including in Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. Forward-looking statements can generally be identified by words such as “will,” “enables,” “expects,” “allows,” "plans," “continues,” “believes,” “anticipates,” “estimates” or similar expressions.
Forward-looking statements are neither historical facts nor assurances of future performance. They are based only on our current beliefs, expectations and assumptions regarding the future of our business, anticipated events and trends, the economy and other future conditions. As such, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and in many cases outside our control. Therefore, you should not rely on any of these forward-looking statements. Our expected results may not be achieved, and actual results may differ materially from our expectations.
Important factors that could cause or contribute to such differences include risks relating to: our ability to attract potential customers to our platform; the degree to which potential customers apply for loans, are approved and borrow from us; anticipated trends, growth rates and challenges in our business and in the markets in which we operate; the ability of our customers to repay loans and our ability to accurately assess credit worthiness; our ability to adequately reserve for loan losses; our liquidity and working capital requirements, including the availability and pricing of debt facilities, securitizations and Marketplace sales to fund our existing operations and planned growth, including the consequences of having inadequate resources to fund additional loans or draws on lines of credit; the effect on our business of originating loans without third-party funding sources; the impact of increased utilization of cash to fund originations; and the effect on our business of utilizing cash for voluntary loan purchases from third parties; our continuing compliance measures related to our funding advisor channel and their impact; changes in our product distribution channel mix or our funding mix; our ability to anticipate market needs and develop new and enhanced offerings to meet those needs; interest rates and origination fees on loans; maintaining and expanding our customer base; the impact of competition in our industry and innovation by our competitors; our anticipated growth and growth strategies, including the possible introduction of new products and possible expansion into new international markets, and our ability to effectively manage that growth; our reputation and possible adverse publicity about us or our industry; the availability and cost of our funding, including challenges faced by the expiration of existing debt facilities; the impact on our business of funding loans from our cash reserves; locating funding sources for new loan products that are ineligible for funding under our existing credit or securitization facilities and the possibility of reducing originations of these loan types; the effect of potential selective pricing increases; our expected utilization of OnDeck Marketplace and the available Marketplace premiums; our failure to anticipate or adapt to future changes in our industry; our ability to hire and retain necessary qualified employees; the lack of customer acceptance or failure of our products; our ability to offer loans to our small business customers that have terms that are competitive with alternatives; our reliance on our third-party service providers; our ability to issue new loans to existing customers that seek additional capital; the evolution of technology affecting our offerings and our markets; our compliance with applicable local, state and federal and non-U.S. laws, rules and regulations and their application and interpretation, whether existing, modified or new; our ability to adequately protect our intellectual property; the effect of litigation or other disputes to which we are or may be a party; the increased expenses and administrative workload associated with being a public company; failure to maintain an effective system of internal controls necessary to accurately report our financial results and prevent fraud; the estimates and estimate methodologies used in preparing our consolidated financial statements; the future trading prices of our common stock, the impact of securities analysts’ reports and shares eligible for future sale on these prices; our ability to prevent or discover security breaks, disruption in service and comparable events that could compromise the personal and confidential information held in our data systems, reduce the attractiveness of our platform or adversely impact our ability to service our loans; and other risks, including those described in "Item 1A. Risk Factors"

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in our Annual Report on Form 10-K and other documents that we file with the SEC from time to time which are available on the SEC website at www.sec.gov.
Except as required by law, we undertake no duty to update any forward-looking statements. Readers are also urged to carefully review and consider all of the information in this report, as well as the other documents we make available through the SEC’s website.
 
 
 
 
When we use the terms “OnDeck,” the “Company,” “we,” “us” or “our” in this report, we are referring to On Deck Capital, Inc. and its consolidated subsidiaries unless the context requires otherwise.
OnDeck, the OnDeck logo, OnDeck Score, OnDeck Marketplace and other trademarks or service marks of OnDeck appearing in this report are the property of OnDeck. Trade names, trademarks and service marks of other companies appearing in this report are the property of their respective holders. We have generally omitted the ®, ™ and other designations, as applicable, in this report.

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Table of Contents

Overview
We are a leading online platform for small business lending. We are seeking to transform small business lending by making it efficient and convenient for small businesses to access capital. Enabled by our proprietary technology and analytics, we aggregate and analyze thousands of data points from dynamic, disparate data sources to assess the creditworthiness of small businesses rapidly and accurately. Small businesses can apply for a term loan or line of credit on our website in minutes and, using our proprietary OnDeck Score®, we can make a funding decision immediately and transfer funds as fast as the same day. We have originated more than $5 billion of loans since we made our first loan in 2007. Our loan originations have increased at a compound annual growth rate of 60% from 2013 to 2015 and had year-over-year growth rates of 41% and 39% for the three months and six months ended June 30, 2016.
We generate the majority of our revenue through interest income and fees earned on the term loans we retain. Our term loans are obligations of small businesses with fixed dollar repayments, which we offer in principal amounts ranging from $5,000 to $500,000 and with maturities of 3 to 36 months. Our lines of credit range from $6,000 to $100,000, and are repayable within six or twelve months of the date of the latest funds draw. We earn interest on the balance outstanding and lines of credit are subject to a monthly fee unless the customer makes a qualifying minimum draw, in which case it is waived for the first six months. In September 2015, in response to what we believe to be the unmet demand of larger, higher credit quality businesses, we began offering term loans up to $500,000 with terms as long as 36 months as compared to our previous limits of $250,000 and 24 months. We also increased the maximum size of our line of credit from $25,000 to $100,000. In October 2013, we began generating revenue by selling some of our term loans to third-party institutional investors through our OnDeck Marketplace®. The balance of our revenue comes from our servicing and other fee income, which primarily consists of fees we receive for servicing loans owned by third-parties and marketing fees from issuing bank partners.
We rely on a diversified set of funding sources for the capital we lend to our customers. Our primary source of this capital has historically been debt facilities with various financial institutions. We have also used proceeds from operating cash flow to fund loans in the past and continue to finance a portion of our outstanding loans with these funds. As of June 30, 2016, we had $558.8 million of funding debt principal outstanding and $800.6 million total borrowing capacity under such debt facilities. During the second quarter of 2016 and 2015, we sold approximately $79.3 million and $149.7 million, respectively, while for the six months ended June 30, 2016 and 2015, we sold $203.1 million and $244.6 million, respectively, of loans to OnDeck Marketplace investors. In May 2016, we completed a second securitization transaction, pursuant to which we issued $250 million initial principal amount of asset-backed notes secured by a revolving pool of OnDeck small business loans. This represents an increase of $75 million over our first securitization transaction in May 2014. Of the total principal outstanding as of June 30, 2016, including our loans held for investment and loans held for sale, plus loans sold to OnDeck Marketplace investors which had a balance remaining as of June 30, 2016, 25% were funded via OnDeck Marketplace investors, 35% were funded via our debt facilities, 26% were financed via proceeds raised from our securitization transaction and 14% were funded via our own equity.
We originate loans throughout the United States, Canada and Australia, although, to date, substantially all of our revenue has been generated in the United States. These loans are originated through our direct marketing, including direct mail, social media and other online marketing channels. We also originate loans through our outbound sales team, referrals from our strategic partners, including banks, payment processors and small business-focused service providers, and through funding advisors who advise small businesses on available funding options.

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Key Financial and Operating Metrics
We regularly monitor a number of metrics in order to measure our current performance and project our future performance. These metrics aid us in developing and refining our growth strategies and making strategic decisions. Beginning with the three months ended March 31, 2016, we refined the calculation of Effective Interest Yield, or EIY, and certain related definitions to reflect the substantial growth and impact of OnDeck Marketplace and to present EIY on a business day adjusted basis. In addition, effective January 1, 2016, we adopted a new requirement in accordance with accounting principles generally accepted in the United States of America, or GAAP, regarding the presentation of debt issuance costs. All revisions have been applied retrospectively.
 
As of or for the Three Months Ended June 30,
 
As of or for the Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
 
(dollars in thousands)
 
(dollars in thousands)
Originations
$
589,686

 
$
419,042

 
$
1,159,349

 
$
835,019

Unpaid Principal Balance
$
790,421

 
$
503,388

 
$
790,421

 
$
503,388

Average Loans
$
754,607

 
$
550,451

 
$
696,141

 
$
540,101

Average Interest Earning Assets
$
741,226

 
$
537,819

 
$
683,907

 
$
526,971

Loans Under Management
$
1,053,413

 
$
718,678

 
$
1,053,413

 
$
718,678

Average Loans Under Management
$
1,020,752

 
$
692,490

 
$
980,076

 
$
657,722

Effective Interest Yield
33.3
%
 
35.9
%
 
33.7
%
 
36.9
%
Marketplace Gain on Sale Rate
3.5
%
 
7.8
%
 
4.9
%
 
7.5
%
Average Funding Debt Outstanding
$
501,438

 
$
363,853

 
$
459,610

 
$
372,001

Cost of Funds Rate
6.7
%
 
5.2
%
 
6.1
%
 
5.3
%
Provision Rate
6.3
%
 
5.3
%
 
6.1
%
 
6.6
%
Reserve Ratio
9.3
%
 
10.5
%
 
9.3
%
 
10.5
%
15+ Day Delinquency Ratio
5.3
%
 
8.0
%
 
5.3
%
 
8.0
%
Originations
Originations represent the total principal amount of the term loans we made during the period, plus the total amount drawn on lines of credit during the period. Many of our repeat term loan customers renew their term loan before their existing term loan is fully repaid. In accordance with industry practice, originations of such repeat term loans are presented as the full renewal loan principal, rather than the net funded amount, which would be the renewal term loan’s principal net of the unpaid principal balance on the existing term loan. Loans referred to, and funded by, our issuing bank partners and later purchased by us are included as part of our originations.
Unpaid Principal Balance
Unpaid Principal Balance represents the total amount of principal outstanding of term loans held for investment, amounts outstanding under lines of credit and the amortized cost of loans purchased from other than issuing bank partners at the end of the period. It excludes net deferred origination costs, allowance for loan losses and any loans sold or held for sale at the end of the period.
Average Loans
Average Loans for the period is the average of the sum of loans held for investment and loans held for sale as of the beginning of the period and as of the end of each month in the period.
Average Interest Earning Assets
Average Interest Earning Assets is calculated as the average of the Unpaid Principal Balance plus the amount of principal outstanding of loans held for sale based on the beginning of the period and as of the end of each month in the period.
Loans Under Management
Loans Under Management represents the Unpaid Principal Balance plus the amount of principal outstanding of loans held for sale, excluding net deferred origination costs, plus the amount of principal outstanding of term loans we serviced for others at the end of the period.

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Average Loans Under Management
Average Loans Under Management for the period is the average of Loans Under Management at the beginning of the period and the end of each month in the period.
Effective Interest Yield
Effective Interest Yield is the rate of return we achieve on loans outstanding during a period. It is calculated as our business day adjusted annualized interest income divided by Average Loans. Annualization is based on 252 business days per year, which is weekdays per year less U.S. Federal Reserve Bank holidays.
Net deferred origination costs in loans held for investment and loans held for sale consist of deferred origination fees and costs. Deferred origination fees include fees paid up front to us by customers when loans are funded and decrease the carrying value of loans, thereby increasing the Effective Interest Yield earned. Deferred origination costs are limited to costs directly attributable to originating loans such as commissions, vendor costs and personnel costs directly related to the time spent by the personnel performing activities related to loan origination and increase the carrying value of loans, thereby decreasing the Effective Interest Yield earned.
Recent pricing trends are discussed under the subheading "Key Factors Affecting Our Performance - Pricing."
Marketplace Gain on Sale Rate
Marketplace Gain on Sale Rate equals our gain on sale revenue from loans sold through OnDeck Marketplace divided by the carrying value of loans sold, which includes both unpaid principal balance sold and the remaining carrying value of the net deferred origination costs. A portion of loans regularly sold through OnDeck Marketplace are or may be loans which were initially designated as held for investment upon origination. The portion of such loans sold in a given period may vary materially depending upon market conditions and other circumstances.
Average Funding Debt Outstanding
Funding debt outstanding is the debt that we incur to support our lending activities and does not include our corporate debt. Average Funding Debt Outstanding for the period is the average of the funding debt outstanding as of the beginning of the period and as of the end of each month in the period. Additionally, in accordance with Financial Accounting Standards Board’s update to ASC 835-30, which was effective January 2016 and applied retrospectively, deferred debt issuance costs are presented as a direct deduction from the carrying value of the associated debt.
Cost of Funds Rate
Cost of Funds Rate is our funding cost, which is the interest expense, fees, and amortization of deferred debt issuance costs we incur in connection with our lending activities across all of our debt facilities, divided by Average Funding Debt Outstanding. For full years, it is calculated as our funding cost divided by Average Funding Debt Outstanding and for interim periods it is calculated as our annualized funding cost for the period divided by Average Funding Debt Outstanding.
Provision Rate
Provision Rate equals the provision for loan losses divided by the new originations volume of loans held for investment, net of originations of sales of such loans within the period. Because we reserve for probable credit losses inherent in the portfolio upon origination, this rate is significantly impacted by the expectation of credit losses for the period’s originations volume. This rate may also be impacted by changes in loss expectations for loans originated prior to the commencement of the period.
The denominator of the Provision Rate formula includes the new originations volume of loans held for investment, net of originations of sales of such loans within the period. However, the numerator reflects only the additional provision required to provide for loan losses on the net funded amount during such period. Therefore, all other things equal, an increased volume of loan rollovers and line of credit repayments and re-borrowings in a period will reduce the Provision Rate.
A portion of loans regularly sold through OnDeck Marketplace are or may be loans which were initially designated as held for investment upon origination. The portion of such loans sold in a given period may vary materially depending upon market conditions and other circumstances.
The Provision Rate is not directly comparable to the net cumulative lifetime charge-off ratio because (i) the Provision Rate reflects estimated losses at the time of origination while the net cumulative lifetime charge-off ratio reflects actual charge-offs, (ii) the Provision Rate includes provisions for losses on both term loans and lines of credit while the net cumulative lifetime charge-off ratio reflects only charge-offs related to term loans and (iii) the Provision Rate for a period reflects the provision for losses related to all loans held for investment while the net cumulative lifetime charge-off ratio reflects lifetime charge-offs of term loans related to a particular cohort of term loans.

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Reserve Ratio
Reserve Ratio is our allowance for loan losses as of the end of the period divided by the Unpaid Principal Balance as of the end of the period.
15+ Day Delinquency Ratio
15+ Day Delinquency Ratio equals the aggregate Unpaid Principal Balance for our loans that are 15 or more calendar days past due as of the end of the period as a percentage of the Unpaid Principal Balance. The Unpaid Principal Balance for our loans that are 15 or more calendar days past due includes loans that are paying and non-paying. The majority of our loans require daily repayments, excluding weekends and holidays, and therefore may be deemed delinquent more quickly than loans from traditional lenders that require only monthly payments.
15+ Day Delinquency Ratio is not annualized, but reflects balances as of the end of the period.

Non-GAAP Financial Measures
We believe that the provision of non-GAAP metrics in this report can provide a useful measure for period-to-period comparisons of our core business and useful information to investors and others in understanding and evaluating our operating results. However, non-GAAP metrics are not calculated in accordance with GAAP, and should not be considered an alternative to any measures of financial performance calculated and presented in accordance with GAAP. Other companies may calculate these non-GAAP metrics differently than we do.
Adjusted EBITDA
Adjusted EBITDA represents our net income (loss), adjusted to exclude interest expense associated with debt used for corporate purposes (rather than funding costs associated with lending activities), income tax expense, depreciation and amortization and stock-based compensation expense. Stock-based compensation includes employee compensation as well as compensation to third-party service providers.
Our use of Adjusted EBITDA has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are:
 
•
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and Adjusted EBITDA does not reflect cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
•
Adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;
•
Adjusted EBITDA does not reflect the potentially dilutive impact of stock-based compensation;
•
Adjusted EBITDA does not reflect interest associated with debt used for corporate purposes or tax payments that may represent a reduction in cash available to us;
The following table presents a reconciliation of net income (loss) to Adjusted EBITDA for each of the periods indicated:
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
 
(in thousands)
 
(in thousands)
Adjusted EBITDA Reconciliation
 
 
 
 
 
 
 
Net income (loss)
$
(18,708
)
 
$
4,748

 
$
(31,849
)
 
$
(595
)
Adjustments:
 
 
 
 
 
 
 
Interest expense
37

 
74

 
75

 
180

Income tax expense
—

 
—

 
—

 
—

Depreciation and amortization
2,357

 
1,565

 
4,435

 
2,943

Stock-based compensation expense
3,910

 
2,316

 
7,662

 
4,358

Adjusted EBITDA
$
(12,404
)
 
$
8,703

 
$
(19,677
)
 
$
6,886


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Adjusted Net Income (Loss)
Adjusted Net Income (Loss) represents our net income (loss) adjusted to exclude stock-based compensation expense, each on the same basis and with the same limitations as described above for Adjusted EBITDA, and net loss attributable to noncontrolling interest.
The following table presents a reconciliation of net income (loss) to Adjusted Net Income (Loss) for each of the periods indicated:
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
 
(in thousands)
 
(in thousands)
Adjusted Net Income (Loss) Reconciliation
 
 
 
 
 
 
 
Net income (loss)
$
(18,708
)
 
$
4,748

 
$
(31,849
)
 
$
(595
)
Adjustments:
 
 
 
 
 
 
 
Net loss attributable to noncontrolling interest
813

 
232

 
1,381

 
232

Stock-based compensation expense
3,910

 
2,316

 
7,662

 
4,358

Adjusted Net Income (Loss)
$
(13,985
)
 
$
7,296

 
$
(22,806
)
 
$
3,995


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Key Factors Affecting Our Performance
Originations
For the three months ended June 30, 2016, as compared to the three months ended June 30, 2015, the growth in originations was driven by business from existing and previous customers, increasing average loan size and the addition of new customers. During the second quarter of 2016, total originations grew 41% as compared to the prior year period, to $589.7 million. In addition, during the second quarter of 2016, the outstanding balance of our lines of credit increased. Line of credit originations made up 14.2% and 9.0% of total dollar originations in the second quarter of 2016 and 2015, respectively.
The number of weekends and holidays in a period can impact our business. Many small businesses tend to apply for loans on weekdays, and such businesses may be closed at least part of a weekend and on holidays. In addition, our loan fundings and automated customer loan repayments only occur on weekdays (excluding bank holidays).
We anticipate that our future growth will continue to depend, in part, on attracting new customers. We plan to continue our sales and marketing spending to attract these customers, while controlling for cost per customer acquisition, and we also plan to increase our analytics spending to better identify potential customers. We have historically relied on all three of our channels for customer acquisition but have become increasingly focused on growing our direct and strategic partner channels. Collective originations through our direct and strategic partner channels made up 74% and 72% of total originations from all customers for the three months ended June 30, 2016 and 2015, respectively. We plan to continue investing in direct marketing and sales, increasing our brand awareness and growing our strategic partnerships.
The following tables summarize the percentage of loans made to all customers originated by our three distribution channels for the periods indicated. From time to time, management is required to make judgments to determine customers' appropriate channel distribution.
 
Three Months Ended June 30,
 
Six Months Ended June 30,
Percentage of Originations (Number of Loans)
2016
 
2015
 
2016
 
2015
Direct and Strategic Partner
81.1
%
 
79.4
%
 
80.5
%
 
78.3
%
Funding Advisor
18.9
%
 
20.6
%
 
19.5
%
 
21.7
%
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
Percentage of Originations (Dollars)
2016
 
2015
 
2016
 
2015
Direct and Strategic Partner
73.7
%
 
71.6
%
 
73.1
%
 
69.7
%
Funding Advisor
26.3
%
 
28.4
%
 
26.9
%
 
30.3
%
We originate term loans and lines of credit to customers who are new to OnDeck as well as to repeat customers. New originations are defined as new term loan originations plus all line of credit draws in the period, including subsequent draws on existing lines of credit. Renewal originations include term loans only. We believe our ability to increase adoption of our offerings within our existing customer base will be important to our future growth. A component of our future growth will include increasing the length of our customer life cycle by expanding our offerings. We believe our significant number of repeat customers is primarily due to our high levels of customer service and continued improvement in products and services. Repeat customers generally comprise our highest quality loans, given that successful repayment of an initial loan is a positive indicator of future credit performance, and OnDeck has more data about a repeat loan applicant than a new loan applicant. From our 2013 customer cohort, customers who took at least three term loans grew their revenue and bank balance, respectively, on average by 28% and 49% from their initial loan to their third term loan. Similarly, from our 2014 customer cohort, customers who took at least three term loans grew their revenue and bank balance, respectively, on average by 29% and 54%. In the second quarter of 2016, 20.0% percent of our origination volume from repeat customers was attributable to unpaid principal balance rolled from existing term loans directly into such repeat originations. In order for a current customer to qualify for a new term loan while a term loan payment obligation remains outstanding, the customer must pass the following standards:
 
•
the business must be approximately 50% paid down on its existing term loan;
•
the business must be current on its outstanding OnDeck loan(s) with no material delinquency history; and
•
the business must be fully re-underwritten and determined to be of adequate credit quality.
The extent to which we generate repeat business from our customers will be an important factor in our continued revenue growth and our visibility into future revenue. In conjunction with repeat borrowing activity, our customers also tend to increase their subsequent loan size compared to their initial loan size. In the fourth quarter of 2014, we introduced the ability for our customers to carry a term loan and line of credit concurrently, which we believe will continue to enhance our ability to generate repeat business going forward.

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Table of Contents

Pricing
Customer pricing is determined primarily based on the customer’s OnDeck Score, the loan term, the customer type (new or repeat) and origination channel. Loans originated through the direct and strategic partner channels are generally priced lower than loans originated through the funding advisor channel due to the higher commissions paid to funding advisors.
Our customers generally pay between $0.003 and $0.04 per month in interest for every dollar they borrow under one of our term loans, with the actual amount typically driven by the length of term of the particular loan. In general, our term loans have been primarily quoted in “Cents on Dollar,” or COD, and lines of credit are quoted in annual percentage rate, or APR. Given the use case and payback period associated with our shorter term offerings, we believe many of our customers prefer to understand pricing on a “dollars in, dollars out” basis and are primarily focused on total payback cost.
We believe that our pricing has historically fallen between traditional bank loans to small businesses and certain non-bank small business financing alternatives such as merchant cash advances. The weighted average pricing on our originations has declined over time as measured by both average “Cents on Dollar” borrowed per month and APR as shown in the table below.
 
Q2 2016
Q1 2016
Q4 2015
Q3 2015
Q2 2015
Q1 2015
2014
2013
Weighted Average Term Loan "Cents on Dollar" Borrowed, per Month
1.75¢
1.78¢
1.82¢
1.86¢
2.04¢
2.15¢
2.32¢
2.65¢
Weighted Average APR - Term Loans and Lines of Credit
40.2%
40.6%
41.4%
42.7%
46.5%
49.3%
54.4%
63.4%
The weighted average APR for term loans and lines of credit has declined over the past years. The weighted average APR for term loans and lines of credit combined was 40.2% and 46.5% for the three months ended June 30, 2016 and 2015, respectively. We attribute this pricing shift to longer average loan term lengths, increased originations from our lower cost direct and strategic partner channels as a percentage of total originations, the growth of our line of credit offering which is generally priced at lower APR levels than our term loans, and the introduction of our customer loyalty program in the first half of 2015. Our customer loyalty program reduces APR for qualifying repeat customers, who historically have exhibited stronger credit characteristics than new customers, demonstrated successful loan history by paying down previous loans and generated stronger unit economics in part due to the lower customer acquisition cost, or CAC, of a repeat customer. This aligns with our goal of building long-term relationships with our customers.
"Cents on Dollar" borrowed reflects the total interest to be paid by a customer to us for each dollar of principal borrowed, and does not include the loan origination fee. As of June 30, 2016, the APRs of our term loans outstanding ranged from 9.1% to 98.3% and the APRs of our lines of credit outstanding ranged from 11.0% to 39.9%. Because many of our loans are short term in nature and APR is calculated on an annualized basis, we believe that small business customers tend to understand and evaluate term loans, especially those of a year or less, primarily on a COD borrowed basis rather than APR.  While annualized rates like APR may help a borrower compare loans of similar duration, an annualized rate may be less useful, especially for loans of 12 months or less, because it is sensitive to duration. For loans of 12 months or less, small differences in loan term can yield large changes in the associated APR, which makes comparisons and understanding of total interest cost more difficult. We believe that for such short-term loans, COD, or similar cost measures that provide total interest expense, give a borrower important information to understand and compare loans, and make an educated decision.  In order to further help small businesses assess and compare their credit options, we are pursuing an initiative to increase disclosure standardization of pricing and comparison terms in our industry, including through inclusion of an APR metric. We are also providing APRs for prior periods as supplemental information for comparative purposes.  Historically, we have not used APR as an internal metric to evaluate performance of our business or as a basis to compensate our employees or to measure their performance. The interest on commercial business loans is also tax deductible as permitted by law compared to typical personal loans which do not provide a tax deduction. APR does not give effect to the small business customer’s possible tax deductions and cash savings associated with business related interest expenses.
We consider EIY as a key pricing metric. EIY is the rate of return we achieve on loans outstanding during a period. Our EIY differs from APR in that it takes into account deferred origination fees and deferred origination costs. Deferred origination fees include fees paid up front to us by customers when loans are funded and decrease the carrying value of loans, thereby increasing the EIY. Deferred origination costs are limited to costs directly attributable to originating loans such as commissions, vendor costs and personnel costs directly related to the time spent by the personnel performing activities related to loan origination and increase the carrying value of loans, thereby decreasing the EIY.
In addition to individual loan pricing and the number of days in a period, there are many other factors that can affect EIY, including:
•
Channel Mix - In general, loans originated from the direct and strategic partner channels have lower EIYs than loans from the funding advisor channel primarily due to their lower rates, lower acquisition costs and lower loss rates.  The

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Table of Contents

direct and strategic partner channels have, in the aggregate, made up 74% and 72% of total originations during the three months ended June 30, 2016 and 2015, respectively. We expect the direct and strategic partner channels to continue to grow as a percentage of the overall channel mix as we continue to focus on growing these historically higher-quality originations.
•
Term Mix - In general, term loans with longer durations have lower annualized interest rates.  Despite lower EIYs, total revenues from customers with longer loan durations are typically higher than the revenue of customers with shorter-term, higher EIY loans because total payback is typically higher compared to a shorter length term for the same principal loan amount.  Since the introduction of our 24-month and 36-month term loans, the average length of term loan originations has increased to 13.7 from 11.9 months for the three months ended June 30, 2016 and June 30, 2015, respectively.
•
Customer Type Mix - In general, loans originated from repeat customers have lower EIYs than loans from new customers.  This is primarily due to the fact that repeat customers typically have a higher OnDeck Score and are therefore deemed to be lower risk.  In addition, repeat customers are more likely to be approved for longer terms than new customers given their established payment history and lower risk profiles. Finally, origination fees are generally reduced or waived for repeat term loan customers, contributing to lower EIYs. Our level of repeat customer originations in the second quarter of 2016 decreased compared to the second quarter of 2015, but remained greater than 50%.
•
Product Mix - In general, loans originated from line of credit customers have lower EIYs than loans from term loan customers.  This is primarily due to the fact that lines of credit are expected to have longer lifetime usage than term loans, enabling more time to recoup upfront acquisition costs.  For the second quarter of 2016, the average line of credit APR was 31.6%, compared to the average term loan APR which was 40.7%.  Further, draws from line of credit customers have increased to 14.2% from 9.0% of total originations in the second quarter of 2016 and 2015, respectively.
•
Competition - During 2015, new lenders entered the online lending market. During 2016, we believe the number of new entrants into the market as well as the amount of funding invested in these competitors from private equity or venture capital sources may decrease. At the same time, more traditional small business lenders such as banks have and may continue to enter the space. As these trends evolve, competitors may attempt to obtain new customers by pricing term loans and lines of credit below prevailing market rates. This could cause downward pricing pressure as these new entrants attempt to win new customers even at the cost of pricing loans below market rates, or even at rates resulting in net losses to them. While we recognize that there has been increased competition in the market of small business loans, we believe only a small portion of our period over period EIY decline is a result of increased competition.
Since 2013, as part of our continuing initiative to reduce pricing while controlling risk, our EIY has generally declined.
Effective Interest Yield
Q2 2016
 
Q1 2016
 
Q4 2015
 
Q3 2015
 
Q2 2015
 
Q1 2015
33.3
%
 
34.5
%
 
34.2
%
 
34.8
%
 
35.9
%
 
37.6
%
We expect EIY to continue to decline in the short term but to stabilize thereafter as our product mix shifts towards our higher yielding products as well as due to select price increases within our financing offerings.
Sale of Whole Loans through OnDeck Marketplace
We sell whole loans to institutional investors through OnDeck Marketplace. Marketplace originations are defined as loans that are sold through OnDeck Marketplace in the period or are held for sale at the end of the period. For the three months ended June 30, 2016 and 2015, approximately 15.6% and 32.8%, respectively, of total term loan originations were designated as Marketplace originations, which resulted in $79.3 million and $149.7 million of loans sold, respectively. We have the ability to fund our originations through a variety of funding sources, including OnDeck Marketplace. Due to the flexibility of our hybrid funding model, management has the ability to exercise judgment to adjust the percentage of term loans originated through OnDeck Marketplace considering numerous factors including the premiums available to us. During the three months ended June 30, 2016, premiums available to us decreased. In response to that decrease and other factors, management elected to reduce the volume of Marketplace originations, resulting in Marketplace representing 15.6% of originations for the three months ended June 30, 2016 compared to 25.9% for the three months ended March 31, 2016. The lower premiums available during the three months ended June 30, 2016 resulted in a Marketplace Gain on Sale Rate of 3.5% compared to 9.0% for the three months ended December 31, 2015 and 7.8% for the three months ended June 30, 2015.
To the extent our use of OnDeck Marketplace as a funding source increases or decreases in the future, our gross revenue and net revenue could be materially affected. The sale of whole loans generates gain on sales of loans which is recognized in the period the loan is sold. In contrast, holding loans on balance sheet generates interest income and funding costs over the term of the loans and generally generates a provision for loan loss expense in the period of origination. Typically, over the life of a loan,

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Table of Contents

we generate more total revenue and income from loans we hold on our balance sheet to maturity as compared to loans we sell through Marketplace.
Our Marketplace originations come from one of the following two origination sources:
•
New loans which are designated at origination to be sold, referred to as "Originations of loans held for sale;" and
•
Loans which were originally designated as held for investment that are subsequently designated to be sold at the time of their renewal and which are considered modified loans, referred to as "Originations of loans held for investment, modified;"
The following table summarizes the initial principal of originations of the aforementioned two sources as it relates to the statement of cash flows during the three months ended and six months ended of 2016 and 2015:
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
2016
 
2015
 
2016
 
2015
 
(in thousands)
 
(in thousands)
Originations of loans held for sale
$
55,329

 
$
99,560

 
$
167,207

 
$
193,427

Originations of loans held for investment, modified
23,423

 
25,591

 
39,787

 
25,591

    Marketplace originations
$
78,752

 
$
125,151

 
$
206,994

 
$
219,018

Customer Acquisition Costs
Our CACs differ depending upon the acquisition channel. CACs in our direct channel include the commissions paid to our internal salesforce and expenses associated with items such as direct mail, social media and other online marketing activities. CACs in our strategic partner channel include commissions paid to our internal salesforce and strategic partners. CACs in our funding advisor channel include commissions paid to our internal salesforce and funding advisors. CACs in all channels include new originations as well as renewals. Compared to the second quarter of 2015, our CACs in the strategic partner channel and funding advisor channel in the second quarter of 2016 have declined as a percentage of total originations from the respective channels. The improvement in these channels is attributable to the overall reduction in external commissions paid relative to dollars funded. Our direct channel CACs have also declined as a percentage of originations as a result of the increasing scale of our operations, improvements in customer targeting, increased customer utilization and increased available capacity of our lines of credit, the addition of pre-qualifications to our marketing outreach and increased renewal activity. Increased competition for customer response could require us to incur higher customer acquisition costs and make it more difficult for us to grow our loan originations in both unit and volume for both new as well as repeat customers.
Customer Lifetime Value
The ongoing lifetime value of our customers will be an important component of our future performance. We analyze customer lifetime value not only by tracking the “contribution” of customers over their lifetime with us, but also by comparing this contribution to the acquisition costs incurred in connection with originating such customers’ initial loans. We define the contribution to include the interest income and fees collected on a cohort of customers’ initial and repeat loans less acquisition costs for their repeat loans, estimated third party processing and servicing expenses for their initial and repeat loans, estimated funding costs (excluding any cost of equity capital) for their initial and repeat loans, and charge-offs of their initial and repeat loans. Comparing the customer lifetime value for cohorts in 2013 and 2014 against like periods, we have observed later cohorts generally exhibit improved return on investment due to economies of scale and improved efficiencies in marketing, cost of funds and processing and servicing costs, as well as credit improvements which resulted in larger average loan sizes.
In the future, we may incur greater marketing expenses to acquire new customers, we may decide to offer term loans with lower interest rates, our charge-offs may increase and our customers’ repeat purchase behavior may change, any of which could adversely impact our customers’ lifetime values to us and our operating results.

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Historical Charge-Offs
We illustrate below our historical loan losses by providing information regarding our net lifetime charge-off ratios by term loan cohort. Net lifetime charge-offs are the unpaid principal balances charged off, including loans sold through our OnDeck Marketplace and loans held for sale on our balance sheet, less recoveries of loans previously charged off. A given cohort’s net lifetime charge-off ratio equals the cohort’s net lifetime charge-offs through June 30, 2016 divided by the cohort’s total original loan volume with both the numerator and denominator including loans sold through OnDeck Marketplace and loans held for sale. Repeat loans in both the numerator and denominator include the full renewal loan principal amount, rather than the net funded amount, which is the renewal loan’s principal amount net of the unpaid principal balance on the existing loan. Loans are typically charged off after 90 days of nonpayment. The chart below includes all term loan originations, regardless of funding source, including loans sold through our OnDeck Marketplace or held for sale on our balance sheet.
Net Charge-off Ratios by Cohort Through June 30, 2016

 
2012
2013
2014
Q1 2015
Q2 2015
Q3 2015
Q4 2015
Q1 2016
Q2 2016
Principal Outstanding as of June 30, 2016
—%
—%
0.1%
1.4%
3.2%
11.4%
31.0%
57.4%
88.6%

The following charts display the historical lifetime cumulative net charge-off ratios, by origination year. The charts reflect all term loan charge-offs and loan originations, regardless of funding source, including loans sold through our OnDeck Marketplace and loans held for sale on our balance sheet in both the numerator and denominator. The data is shown as a static pool for annual cohorts, illustrating how the cohort has performed given equivalent months of seasoning.
Further, given our loans are typically charged off after 90 days of nonpayment, all cohorts reflect approximately 0% for the first four months in the below charts.

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Net Cumulative Lifetime Charge-off Ratios
All Loans

Originations
2012
2013
2014
2015
Q1 2016
Q2 2016
All term loans (in thousands)
$
173,246

$
455,931

$
1,100,957

$
1,703,617

$
495,956

$
506,097

Weighted average term (months)
9.2

10.0

11.2

12.4

13.2

13.7

Economic Conditions
Changes in the overall economy may impact our business in several ways, including demand for our loans, credit performance, and funding costs.
 
•
Demand for Our Loans. In a strong economic climate, demand for our loans may increase as consumer spending increases and small businesses seek to expand. In addition, more potential customers may meet our underwriting requirements to qualify for a loan. At the same time, small businesses may experience improved cash flow and liquidity resulting in fewer customers requiring loans to manage their cash flows. In that climate, traditional lenders may also approve loans for a higher percentage of our potential customers. In a weakening economic climate or recession, the opposite may occur.
•
Credit Performance. In a strong economic climate, our customers may experience improved cash flow and liquidity, which may result in lower loan losses. In a weakening economic climate or recession, the opposite may occur. We factor economic conditions into our loan underwriting analysis and reserves for loan losses, but changes in economic conditions, particularly sudden changes, may affect our actual loan losses. These effects may be partially mitigated by the short-term nature and repayment structure of our loans, which should allow us to react more quickly than if the terms of our loans were longer.
•
Loan Losses. Our underwriting process is designed to limit our loan losses to levels compatible with our business strategy and financial model. Our aggregate loan loss rates from 2012 through the second quarter of 2016 have been consistent with our financial targets. Our overall loan losses are affected by a variety of factors, including external factors such as

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prevailing economic conditions, general small business sentiment and unusual events such as natural disasters, as well as internal factors such as the accuracy of the OnDeck Score, the effectiveness of our underwriting process and the introduction of new offerings, such as our line of credit, with which we have less experience to draw upon when forecasting their loss rates. Our loan loss rates may vary in the future.
•
Funding Costs. Changes in macroeconomic conditions may affect generally prevailing interest rates, and such effects may be amplified or reduced by other factors such as fiscal and monetary policies, economic conditions in other markets and other factors. Interest rates may also change for reasons unrelated to economic conditions. To the extent that interest rates rise, our funding costs will increase and the spread between our EIY and our Cost of Funds Rate may narrow to the extent we cannot correspondingly increase the payback rates we charge our customers. Given the current credit environment and increases in interest rate benchmarks, we believe that our Cost of Funds Rate may increase in future periods.


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Table of Contents

Components of Our Results of Operations
Revenue
Interest Income. We generate revenue primarily through interest and origination fees earned on the term loans we originate and, to a lesser extent, interest earned on lines of credit. Interest income also includes interest income earned on loans held for sale from the time the loan is originated to when it is ultimately sold as well as other miscellaneous interest income. Our interest and origination fee revenue is amortized over the term of the loan using the effective interest method. Origination fees collected but not yet recognized as revenue are netted with direct origination costs and recorded as a component of loans held for investment or loans held for sale, as appropriate, on our consolidated balance sheets and recognized over the term of the loan. Direct origination costs include costs directly attributable to originating a loan, including commissions, vendor costs and personnel costs directly related to the time spent by those individuals performing activities related to loan origination.
Gain on Sales of Loans. We sell term loans to third-party institutional investors through OnDeck Marketplace. We recognize a gain or loss on the sale of such loans as the difference between the proceeds received, adjusted for initial recognition of servicing assets or liabilities obtained at the date of sale, and the outstanding principal and net deferred origination costs.
Other Revenue. Other revenue includes servicing revenue related to loans serviced for others, fair value adjustments to servicing rights, platform fees, monthly fees charged to customers for our line of credit, and marketing fees earned from our issuing bank partners, which are recognized as the related services are provided.
Cost of Revenue
Provision for Loan Losses. Provision for loan losses consists of amounts charged to income during the period to maintain an allowance for loan losses, or ALLL, estimated to be adequate to provide for probable credit losses inherent in our existing loan portfolio. Our ALLL represents our estimate of the expected credit losses inherent in our portfolio of term loans and lines of credit and is based on a variety of factors, including the composition and quality of the portfolio, loan specific information gathered through our collection efforts, delinquency levels, our historical charge-off and loss experience and general economic conditions. We expect our aggregate provision for loan losses to increase in absolute dollars as the amount of term loans and lines of credit we originate and hold for investment increases.
Funding Costs. Funding costs consist of the interest expense we pay on the debt we incur to fund our lending activities, certain fees and the amortization of deferred debt issuance costs incurred in connection with obtaining this debt, such as banker fees, origination fees and legal fees. Such costs are expensed immediately upon early extinguishment of the related debt. Our Cost of Funds Rate will vary based on a variety of external factors, such as credit market conditions, general interest levels and interest rate spreads, as well OnDeck-specific factors, such as the increased volume and variation in our originations. We expect that our funding costs will continue to increase in absolute dollars in the near future as we incur additional debt to support future term loan and line of credit originations, and we currently expect our Cost of Funds Rate will also increase in future periods.
Operating Expense
Operating expense consists of sales and marketing, technology and analytics, processing and servicing, and general and administrative expenses. Salaries and personnel-related costs, including benefits, bonuses and stock-based compensation expense, comprise a significant component of each of these expense categories. We expect our stock-based compensation expense to increase in the future. The number of employees was 730 and 638 at June 30, 2016 and December 31, 2015, respectively. We expect to continue to hire new employees in order to support our growth strategy, however, we expect the rate of employee growth to decline compared to prior periods. All operating expense categories also include an allocation of overhead, such as rent and other overhead, which is based on employee headcount.
Sales and Marketing. Sales and marketing expense consists of salaries and personnel-related costs of our sales and marketing and business development employees, as well as direct marketing and advertising costs, online and offline CACs (such as direct mail, paid search and search engine optimization costs), public relations, radio and television advertising, promotional event programs and sponsorships, corporate communications and allocated overhead. We expect our sales and marketing expense in terms of absolute dollars to stabilize in the foreseeable future as our sales and marketing activities mature and we continue to optimize marketing spend. Future sales and marketing expense may include the expense associated with warrants issued to a strategic partner if performance conditions are met as described in Note 9 of Notes to Consolidated Financial Statements contained in our Annual Report on Form 10-K for the year ended December 31, 2015.
Technology and Analytics. Technology and analytics expense consists primarily of the salaries and personnel-related costs of our engineering and product employees as well as our credit and analytics employees who develop our proprietary credit-scoring models. Additional expenses include third-party data acquisition expenses, professional services, consulting costs, expenses related to the development of new products and technologies and maintenance of existing technology assets, amortization of capitalized internal-use software costs related to our technology platform and allocated overhead. We believe continuing to invest in technology

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is essential to maintaining our competitive position, and we expect these costs to rise moderately in the near term on an absolute dollar basis.
Processing and Servicing. Processing and servicing expense consists primarily of salaries and personnel related costs of our credit analysis, underwriting, funding, fraud detection, customer service and collections employees. Additional expenses include vendor costs associated with third-party credit checks, lien filing fees and other costs to evaluate, close and fund loans and overhead costs. We anticipate that our processing and servicing expense will stabilize in absolute dollars as we grow originations by continuing to increase automation and by driving department efficiencies.
General and Administrative. General and administrative expense consists primarily of salary and personnel-related costs for our executive, finance and accounting, legal and people operations employees. Additional expenses include a provision for the unfunded portion of our lines of credit, consulting and professional fees, insurance, legal, occupancy, travel, gain or loss on foreign exchange and other corporate expenses. These expenses also include costs associated with compliance with the Sarbanes-Oxley Act and other regulations governing public companies, directors’ and officers’ liability insurance and increased accounting costs. We anticipate that our general and administrative expense will stabilize in absolute dollars in the near term as our finance and accounting, legal and people operations functions mature.
Other (Expense) Income
Interest Expense. Interest expense consists of interest expense and amortization of deferred debt issuance costs incurred on debt associated with our corporate activities. It does not include interest expense incurred on debt associated with our lending activities.
Provision for Income Taxes
Provision for income taxes consists of U.S. federal, state and foreign income taxes, if any. Through December 31, 2015, we have not been required to pay U.S. federal or state income taxes nor any foreign taxes because of our current and accumulated net operating losses. As of December 31, 2015, we had $50.6 million of federal net operating loss carryforwards and $49.8 million of state net operating loss carryforwards available to reduce future taxable income, unless limited due to historical or future ownership changes. The federal net operating loss carryforwards will begin to expire at various dates beginning in 2027.
The Internal Revenue Code of 1986, as amended, or the Code, imposes substantial restrictions on the utilization of net operating losses and other tax attributes in the event of an “ownership change” of a corporation. Events which may cause limitation in the amount of the net operating losses and other tax attributes that are able to be utilized in any one year include, but are not limited to, a cumulative ownership change of more than 50% over a three-year period, which has occurred as a result of historical ownership changes. Accordingly, our ability to use pre-change net operating loss and certain other attributes are limited as prescribed under Sections 382 and 383 of the Code. Therefore, if we earn net taxable income in the future, our ability to reduce our federal income tax liability with our existing net operating losses is subject to limitation. Future offerings, as well as other future ownership changes that may be outside our control could potentially result in further limitations on our ability to utilize our net operating loss and tax attributes. Accordingly, achieving profitability may not result in a full release of the valuation allowance.
As of December 31, 2015, a full valuation allowance of $32.0 million was recorded against our net deferred tax assets.

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Results of Operations
The following table summarizes our results of operations for the periods presented and as a percentage of our total revenue for those periods. The period-to-period comparison of results is not necessarily indicative of results for future periods.
 
 Comparison of Three Months Ended June 30, 2016 and 2015
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Revenue:
 
 
 
 
 
 
 
 
 
 
 
Interest income
$
63,886

 
92.0
 %
 
$
50,248

 
79.4
 %
 
$
13,638

 
27.1
 %
Gain on sales of loans
2,813

 
4.0

 
11,710

 
18.5

 
(8,897
)
 
(76.0
)
Other revenue
2,803

 
4.0

 
1,354

 
2.1

 
1,449

 
107.0

Gross revenue
69,502

 
100.0

 
63,312

 
100.0

 
6,190

 
9.8

Cost of revenue:
 
 
 
 
 
 
 
 
 
 
 
Provision for loan losses
32,271

 
46.4

 
15,526

 
24.5

 
16,745

 
107.9

Funding costs
8,374

 
12.0

 
4,771

 
7.5

 
3,603

 
75.5

Total cost of revenue
40,645

 
58.4

 
20,297

 
32.1

 
20,348

 
100.3

Net revenue
28,857

 
41.6

 
43,015

 
67.9

 
(14,158
)
 
(32.9
)
Operating expenses:
 
 
 
 
 
 
 
 
 
 
 
Sales and marketing
16,757

 
24.1

 
14,981

 
23.7

 
1,776

 
11.9

Technology and analytics
13,757

 
19.8

 
10,206

 
16.1

 
3,551

 
34.8

Processing and servicing
4,865

 
7.0

 
3,015

 
4.8

 
1,850

 
61.4

General and administrative
12,149

 
17.5

 
9,991

 
15.8

 
2,158

 
21.6

Total operating expenses
47,528

 
68.4

 
38,193

 
60.3

 
9,335

 
24.4

Loss from operations
(18,671
)
 
(26.8
)
 
4,822

 
7.6

 
(23,493
)
 
(487.2
)
Other (expense) income:
 
 
 
 
 
 
 
 
 
 
 
Interest expense
(37
)
 
(0.1
)
 
(74
)
 
(0.1
)
 
37

 
(50.0
)
Total other (expense) income:
(37
)
 
(0.1
)
 
(74
)
 
(0.1
)
 
37

 
(50.0
)
Loss before provision for income taxes
(18,708
)
 
(26.9
)
 
4,748

 
7.5

 
(23,456
)
 
(494.0
)
Provision for income taxes
—

 
—

 
—

 
—

 
—

 
—

Net loss
$
(18,708
)
 
(26.9
)%
 
$
4,748

 
7.5
 %
 
$
(23,456
)
 
(494.0
)%

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Table of Contents

Revenue
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Revenue:
 
Interest income
$
63,886

 
92.0
%
 
$
50,248

 
79.4
%
 
$
13,638

 
27.1
 %
Gain on sales of loans
2,813

 
4.0

 
11,710

 
18.5

 
(8,897
)
 
(76.0
)
Other revenue
2,803

 
4.0

 
1,354

 
2.1

 
1,449

 
107.0

Gross revenue
$
69,502

 
100.0
%
 
$
63,312

 
100.0
%
 
$
6,190

 
9.8
 %
Gross revenue increased by $6.2 million, or 10%, from $63.3 million in the second quarter of 2015 to $69.5 million in second the quarter of 2016. This growth was in part attributable to a $13.6 million, or 27%, increase in interest income. The combined effect of our increase in originations and decreased utilization of Marketplace resulted in a greater volume of loans being held on our balance sheet as evidenced by the 37% increase in Average Loans to $754.6 million from $550.5 million. The increase in interest income was partially offset by a decline in our EIY on loans outstanding from 35.9% to 33.3% over the same period.
Gain on sales of loans decreased by $8.9 million, from $11.7 million to $2.8 million, or 76%. This decrease was primarily attributable to a $70.4 million decrease in sales of loans through OnDeck Marketplace and a decrease in Marketplace Gain on Sale Rate from 7.8% to 3.5%.
Other revenue increased $1.4 million, or 107%, primarily attributable to an increase of $1.1 million in marketing fees from our issuing bank partners and an increase of $0.4 million in fees earned from lines of credit as lines of credit increased from 9.0% of originations to 14.2%.
Cost of Revenue
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Cost of revenue:
 
 
 
 
 
 
 
 
 
 
 
Provision for loan losses
$
32,271

 
46.4
%
 
$
15,526

 
24.5
%
 
$
16,745

 
107.9
%
Funding costs
8,374

 
12.0

 
4,771

 
7.5

 
3,603

 
75.5

Total cost of revenue
$
40,645

 
58.4
%
 
$
20,297

 
32.1
%
 
$
20,348

 
100.3
%
Provision for Loan Losses. Provision for loan losses increased by $16.8 million, or 108%, from $15.5 million in the second quarter of 2015 to $32.3 million in the second quarter of 2016. This increase was primarily attributable to the increase in originations of term loans and lines of credit held for investment. In accordance with GAAP, we recognize revenue on loans over their term, but provide for probable credit losses on the loans at the time they are originated. We then periodically adjust our estimate of those probable credit losses based on actual performance and changes in loss expectations. As a result, we believe that analyzing provision for loan losses as a percentage of originations, rather than as a percentage of gross revenue, provides more useful insight into our operating performance. Our provision for loan losses as a percentage of originations held for investment, or the Provision Rate, increased from 5.3% to 6.3%. The increase in Provision Rate was primarily related to the second quarter of 2015 release of reserves for loans sold through OnDeck Marketplace which were previously designated as held for investment. The increase was partially offset by improvements in the portfolio performance, an increase in loan rollovers and line of credit repayments and re-borrowings, and a more predictive OnDeck Score.

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Table of Contents

Funding Costs. Funding costs increased by $3.6 million, or 76%, from $4.8 million in the second quarter of 2015 to $8.4 million in the second quarter of 2016. The increase in funding costs was primarily attributable to the increases in our aggregate outstanding borrowings, growth of our partner synthetic participation program and the increase in unused commitment fees. Additionally, due to the voluntary prepayment of all amounts due under the ODAST Agreement in May 2016, the remaining deferred issuance costs of $1.6 million were fully amortized in the second quarter of 2016. The Average Funding Debt Outstanding during the second quarter of 2016 was $501.4 million as compared to the average balance of $363.9 million during the second quarter of 2015. As a percentage of gross revenue, funding costs increased from 7.5% to 12.0%. The increase in funding costs as a percentage of gross revenue was the result of a decrease in loans sold through OnDeck Marketplace, additional amortization of deferred issuance costs incurred as a result of the ODAST voluntary prepayment, the decrease in our EIY, higher partner synthetic participation program impact and higher unused commitment fees. Our Cost of Funds Rate increased from 5.2% to 6.7% with 1.2% of that increase attributable to the additional amortization of deferred issuance costs incurred as a result of the ODAST voluntary prepayment.
Operating Expense
Sales and Marketing
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Sales and marketing
$
16,757

 
24.1
%
 
$
14,981

 
23.7
%
 
$
1,776

 
11.9
%
Sales and marketing expense increased by $1.8 million, or 12%, from $15.0 million in the second quarter of 2015 to $16.8 million in the second quarter of 2016. The increase was in part attributable to a $1.5 million increase in salaries and personnel-related cost as we expanded our sales and marketing departments to support higher origination volume. In addition, we incurred a $0.3 million increase in direct marketing, general marketing and advertising costs as we expanded our marketing programs to drive increased customer acquisition and brand awareness.
Technology and Analytics
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Technology and analytics
$
13,757

 
19.8
%
 
$
10,206

 
16.1
%
 
$
3,551

 
34.8
%
Technology and analytics expense increased by $3.6 million, or 35%, from $10.2 million in the second quarter of 2015 to $13.8 million in the second quarter of 2016. The increase was primarily attributable to a $2.6 million increase in salaries and personnel-related costs, as we increased the number of technology personnel developing and improving our platform, as well as analytics personnel to further improve upon algorithms underlying the OnDeck Score. We incurred a $0.3 million increase in non-capitalizable technology supplies, technology services, purchase of credit data and software licenses and a $0.7 million increase in amortization of capitalized internal-use software costs related to our technology platform.

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Table of Contents

Processing and Servicing
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Processing and servicing
$
4,865

 
7.0
%
 
$
3,015

 
4.8
%
 
$
1,850

 
61.4
%
Processing and servicing expense increased by $1.9 million, or 61%, from $3.0 million in the second quarter of 2015 to $4.9 million in the second quarter of 2016. The increase was primarily attributable to a $1.3 million increase in salaries and personnel-related costs, as we increased the number of processing and servicing personnel to support the increased volume of loan applications and approvals and increased loan servicing requirements. In addition, we incurred a $0.5 million increase in third-party processing costs, credit information and filing fees as a result of the increased volume of loan applications and originations.
General and Administrative
 
 
Three Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
General and administrative
$
12,149

 
17.5
%
 
$
9,991

 
15.8
%
 
$
2,158

 
21.6
%
General and administrative expense increased by $2.1 million, or 22%, from $10.0 million in the second quarter of 2015 to $12.1 million in the second quarter of 2016. In support of the growth of our business, salaries and personnel-related costs increased $0.9 million as we increased the number of general and administrative personnel. Expenses incurred related to legal and compliance fees, recruiting and personnel-related expenses, facility depreciation, professional services and other miscellaneous expenses increased $0.9 million.

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Comparison of Six Ended June 30, 2016 and 2015
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Revenue:
 
 
 
 
 
 
 
 
 
 
 
Interest income
$
117,365

 
88.8
 %
 
$
98,947

 
82.6
 %
 
$
18,418

 
18.6
 %
Gain on sales of loans
9,924

 
7.5

 
18,389

 
15.4

 
(8,465
)
 
(46.0
)
Other revenue
4,828

 
3.7

 
2,434

 
2.0

 
2,394

 
98.4

Gross revenue
132,117

 
100.0

 
119,770

 
100.0

 
12,347

 
10.3

Cost of revenue:
 
 
 
 
 
 
 
 
 
 
 
Provision for loan losses
57,708

 
43.7

 
38,626

 
32.3

 
19,082

 
49.4

Funding costs
14,096

 
10.6

 
9,816

 
8.2

 
4,280

 
43.6

Total cost of revenue
71,804

 
54.3

 
48,442

 
40.4

 
23,362

 
48.2

Net revenue
60,313

 
45.7

 
71,328

 
59.6

 
(11,015
)
 
(15.4
)
Operating expenses:
 
 
 
 
 
 
 
 
 
 
 
Sales and marketing
33,305

 
25.2

 
27,656

 
23.1

 
5,649

 
20.4

Technology and analytics
27,844

 
21.1

 
18,794

 
15.7

 
9,050

 
48.2

Processing and servicing
9,080

 
6.9

 
5,717

 
4.8

 
3,363

 
58.8

General and administrative
21,858

 
16.5

 
19,576

 
16.3

 
2,282

 
11.7

Total operating expenses
92,087

 
69.7

 
71,743

 
59.9

 
20,344

 
28.4

Loss from operations
(31,774
)
 
(24.0
)
 
(415
)
 
(0.3
)
 
(31,359
)
 
7,556.4

Other (expense) income:
 
 
 
 
 
 
 
 
 
 
 
Interest expense
(75
)
 
(0.1
)
 
(180
)
 
(0.2
)
 
105

 
(58.3
)
Total other (expense) income:
(75
)
 
(0.1
)
 
(180
)
 
(0.2
)
 
105

 
(58.3
)
Loss before provision for income taxes
(31,849
)
 
(24.1
)
 
(595
)
 
(0.5
)
 
(31,254
)
 
5,252.8

Provision for income taxes
—

 
—

 
—

 
—

 
—

 
—

Net loss
$
(31,849
)
 
(24.1
)%
 
$
(595
)
 
(0.5
)%
 
$
(31,254
)
 
5,252.8
 %
Revenue
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Revenue:
 
Interest income
$
117,365

 
88.8
%
 
$
98,947

 
82.6
%
 
$
18,418

 
18.6
 %
Gain on sales of loans
9,924

 
7.5

 
18,389

 
15.4

 
(8,465
)
 
(46.0
)
Other revenue
4,828

 
3.7

 
2,434

 
2.0

 
2,394

 
98.4

Gross revenue
$
132,117

 
100.0
%
 
$
119,770

 
100.0
%
 
$
12,347

 
10.3
 %
Gross revenue increased by $12.3 million, or 10%, from $119.8 million in the six months ended 2015 to $132.1 million in the six months ended 2016. This growth was in part attributable to a $18.4 million, or 19%, increase in interest income, which

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was primarily driven by the increase in Average Loans which increased 29% to $696.1 million from $540.1 million as we continued to optimize our funding strategy and sold fewer loans through OnDeck Marketplace in response to market conditions. The increase in interest income was partially offset by a decline in our EIY on loans outstanding from 36.9% to 33.7% over the same period.
Gain on sales of loans decreased by $8.5 million, from $18.4 million to $9.9 million. This decrease was primarily attributable to a $41.6 million decrease in sales of loans through OnDeck Marketplace and a decrease in Marketplace Gain on Sale Rate from 7.5% to 4.9% as we continue to optimize our funding strategy, holding more loans on our balance sheet utilizing our warehouse capacity.
Other revenue increased $2.4 million, or 98%, mostly attributable to an increase of $1.4 million in marketing fees from our issuing bank partners and an increase of $0.6 million in fees earned from lines of credit as lines of credit increased from 8.2% of originations to 13.6%.
Cost of Revenue
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Cost of revenue:
 
 
 
 
 
 
 
 
 
 
 
Provision for loan losses
$
57,708

 
43.7
%
 
$
38,626

 
32.3
%
 
$
19,082

 
49.4
%
Funding costs
14,096

 
10.6

 
9,816

 
8.2

 
4,280

 
43.6

Total cost of revenue
$
71,804

 
54.3
%
 
$
48,442

 
40.4
%
 
$
23,362

 
48.2
%
Provision for Loan Losses. Provision for loan losses increased by $19.1 million, or 49%, from $38.6 million in the six months ended 2015 to $57.7 million in the six months ended 2016. This increase was primarily attributable to the increase in originations of term loans and lines of credit held for investment. In accordance with GAAP, we recognize revenue on loans over their term, but provide for probable credit losses on the loans at the time they are originated. We then periodically adjust our estimate of those probable credit losses based on actual performance and changes in loss expectations. As a result, we believe that analyzing provision for loan losses as a percentage of originations, rather than as a percentage of gross revenue, provides more useful insight into our operating performance. Our provision for loan losses as a percentage of originations held for investment, or the Provision Rate, decreased from 6.6% to 6.1%. The decrease was related to improvements in the portfolio performance, an increase in loan rollovers and line of credit repayments and re-borrowings and a more predictive OnDeck Score, partially offset by the origination of longer average term loans and the increase of originations of our line of credit product.
Funding Costs. Funding costs increased by $4.3 million, or 44%, from $9.8 million in the six months ended 2015 to $14.1 million in the six months ended 2016. The increase in funding costs was primarily attributable to the increases in our aggregate outstanding borrowings, growth of our partner synthetic participation program and the increase in unused commitment fees. Additionally, due to the voluntary prepayment of all amounts due under the ODAST Agreement in May 2016, the remaining deferred issuance costs of $1.6 million were fully amortized in the second quarter of 2016. The Average Funding Debt Outstanding during the six months ended 2016 was $459.6 million as compared to the average balance of $372.0 million during 2015. As a percentage of gross revenue, funding costs increased from 8.2% to 10.6%. The increase in funding costs as a percentage of gross revenue was the result of a decrease in loans sold through OnDeck Marketplace, additional amortization of deferred issuance costs incurred as a result of the ODAST voluntary prepayment, the decrease in our EIY, higher partner synthetic participation program impact and higher unused commitment fees. Our Cost of Funds Rate increased from 5.3% to 6.1% with 1.2% of that increase attributable to the additional amortization of deferred issuance costs incurred as a result of the ODAST voluntary prepayment.

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Operating Expense
Sales and Marketing
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Sales and marketing
$
33,305

 
25.2
%
 
$
27,656

 
23.1
%
 
$
5,649

 
20.4
%
Sales and marketing expense increased by $5.6 million, or 20%, from $27.7 million in the six months ended 2015 to $33.3 million in the six months ended 2016. The increase was in part attributable to a $3.1 million increase in salaries and personnel-related cost as we expanded our sales and marketing departments to support increased originations volume. In addition, we incurred a $2.5 million increase in direct marketing, general marketing and advertising costs as we expanded our marketing programs to drive increased customer acquisition and brand awareness.
Technology and Analytics
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Technology and analytics
$
27,844

 
21.1
%
 
$
18,794

 
15.7
%
 
$
9,050

 
48.2
%
Technology and analytics expense increased by $9.0 million, or 48%, from $18.8 million in the six months ended 2015 to $27.8 million in the six months ended 2016. The increase was primarily attributable to a $6.1 million increase in salaries and personnel-related costs, as we increased the number of technology personnel developing and improving our platform, as well as analytics personnel to further improve upon algorithms underlying the OnDeck Score. We incurred a $0.7 million increase in technology-related consulting expense, a $1.1 million increase in information technology security expense, technology services and software licenses and a $1.2 million increase in amortization of capitalized internal-use software costs related to our technology platform.
Processing and Servicing
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
Processing and servicing
$
9,080

 
6.9
%
 
$
5,717

 
4.8
%
 
$
3,363

 
58.8
%
Processing and servicing expense increased by $3.4 million, or 59%, from $5.7 million in the six months ended 2015 to $9.1 million in the six months ended 2016. The increase was primarily attributable to a $2.6 million increase in salaries and personnel-related costs, as we increased the number of processing and servicing personnel to support the increased volume of loan applications and approvals and increased loan servicing requirements. In addition, we incurred a $0.8 million increase in third-party processing costs, credit information and filing fees as a result of the increased volume of loan applications and originations.

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General and Administrative
 
 
Six Months Ended June 30,
 
 
 
 
 
 
 
 
 
Period-to-Period
 
2016
 
2015
 
Change
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage of
Gross
Revenue
 
Amount
 
Percentage
 
(dollars in thousands)
General and administrative
$
21,858

 
16.5
%
 
$
19,576

 
16.3
%
 
$
2,282

 
11.7
%
General and administrative expense increased by $2.3 million, or 12%, from $19.6 million in the six months ended 2015 to $21.9 million in the six months ended 2016. In support of the growth of our business, salaries and personnel-related costs increased $3.0 million as we increased the number of general and administrative personnel. Expenses incurred related to legal and compliance fees, recruiting and personnel-related expenses, facility depreciation, professional services and other miscellaneous expenses increased $1.7 million. The increases were offset by a decrease in the reserve on unfunded lines of credit of $1.4 million and an increase in gain related to foreign currency of $1.2 million. The decrease in the reserve on unfunded lines of credit resulted from improvements made to the reserve model utilizing historical performance data we have aggregated since we began offering lines of credit in 2013. The gain related to foreign currency was driven by the strengthening of the Canadian dollar relative to the U.S. dollar during the six months ended June 30, 2016 as compared to the prior year's period.


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Liquidity and Capital Resources

Sources of Liquidity
During the second quarter of 2016, we originated $589.7 million of loans and during the six months ended June 30, 2016 we originated $1.2 billion, utilizing a diversified set of funding sources, including cash on hand, third-party lenders (through debt facilities and securitization), OnDeck Marketplace and the cash generated by our operating, investing and financing activities.
Cash on Hand
At June 30, 2016, we had approximately $78 million of cash on hand to fund our future operations compared to approximately $160 million at December 31, 2015.  The decline was the result of our strategy to reduce Marketplace sales and retain more loans on-balance sheet during the period.  Consistent with this decision, we invested more of our cash to fund on-balance sheet loan growth.
The increased cash investment is mostly attributable to funding the residual value of our financed portfolio, which is, in general, the portion of our financed loans in excess of the advance rate allowed by our debt facilities. This increase in residual value accounted for $56.5 million of the decrease in cash during the six months ended June 30, 2016.  All else equal, as the rate of outstanding principal balances we retain on balance sheet slows, the rate of residual growth should also slow.
In addition, $18.2 million of cash was used during this same period to fund an increase in loans that are not pledged to debt facilities due to certain concentration and eligibility limits as described below.
As a result of these factors, we are currently utilizing more of our own cash to finance loan growth as we work with our existing and potential creditors to expand the capacity of our existing debt facilities, to establish new debt facilities, or to complete additional securitizations.
Current Debt Facilities
The following table summarizes our current debt facilities available for funding our lending activities, referred to as funding debt, and our operating expenditures, referred to as corporate debt, as of June 30, 2016
Description
Maturity
Date
 
Weighted
Average
Interest Rate
 
Borrowing
Capacity
 
Principal
Outstanding
 
 
 
 
 
(in millions)
Funding debt:
 
 
 
 
 
OnDeck Asset Securitization Trust II LLC
May 2020 (1)
 
4.7
%
 
$
250.0

 
$
250.0

Prime OnDeck Receivable Trust, LLC
June 2017
 
2.7
%
 
100.0

 
78.3

Receivable Assets of OnDeck, LLC
May 2017
 
3.4
%
 
100.0

 
99.9

OnDeck Account Receivables Trust 2013-1 LLC
September 2017
 
3.2
%
 
162.4

 
62.4

On Deck Asset Company, LLC
May 2017
 
9.7
%
 
75.0

 
55.0

Small Business Asset Fund 2009 LLC
Various(2)
 
6.6
%
 
7.6

 
7.6

On Deck Asset Pool, LLC
August 2017(3)
 
5.0
%
 
100.0

 
—

Partner Synthetic Participations
Various(4)
 
Various

 
5.6

 
5.6

 
 
 
 
 
800.6

 
558.8

Deferred Debt Issuance Cost
 
 
 
 
 
 
(4.9
)
Total funding debt
 
 
 
 
$
800.6

 
$
553.9

 
 
 
 
 
 
 
 
Corporate debt:
 
 
 
 
 
 
 
On Deck Capital, Inc.
October 2016
 
4.5
%
 
$
20.0

 
$
2.7

_________________________
(1)
The period during which remaining cash flow can be used to purchase additional loans expires April 30, 2018.
(2)
Maturity dates range from August 2016 through August 2017.
(3)
The period during which new borrowings may be made under this debt facility expires in August 2016.
(4)
Maturity dates range from July 2016 through June 2018.

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While the lenders under our corporate debt facility and Partner Synthetic Participation have direct recourse to us as the borrower thereunder, lenders to our subsidiaries do not have direct recourse to us.
In August 2016, the period during which new borrowings may be made under the ODAP facility for purposes of the purchase of additional loans will expire.  Accordingly, our ability to finance additional loans utilizing this financing source will end unless the facility is renewed.  Excluding this funding source, at June 30, 2016, we had approximately $141.7 million of available capacity through other debt facilities to finance additional loans in addition to approximately $17.3 million available under our corporate debt facility, in each case subject to borrowing conditions.
Our ability to fully utilize the available capacity of our debt facilities may also be impacted by provisions that limit concentration risk and eligibility.  The debt facilities contain thresholds, known as concentration limitations, which restrict a debt facility’s collateral pool from being overly concentrated with loans that share pre-defined loan characteristics.  In addition, debt facilities contain provision that limit the eligibility criteria of loans that may be financed, such as term length, loan amount and a borrower's home country. Loans that do not meet the criteria to be financed are referred to as ineligible loans. To the extent such concentration limits are exceeded or loans are deemed ineligible, newly originated loans with the pre-defined loan characteristics subject to that concentration limit or eligibility criteria may not be financed despite available capacity under the debt facilities.
Marketplace
OnDeck Marketplace is our proprietary whole loan sale platform that allows participating third-party institutional investors to directly purchase small business loans from us. OnDeck Marketplace participants enter into whole loan purchase agreements, so as to purchase a pre-determined dollar amount of loans that satisfy certain eligibility criteria. Some participants agree to purchase such loans on what is known as a "forward flow basis" while other participants purchase larger pools of whole loans in isolated transactions. The loans are sold to the participant at a pre-determined purchase price above par. We recognize a gain or loss from OnDeck Marketplace loans when sold. The frequency and amount of Marketplace sales depend on numerous factors including the premiums available to us. We currently act as servicer in exchange for a servicing fee with respect to the loans purchased by the applicable OnDeck Marketplace participant. For the six months ended June 30, 2016 and 2015, 20.7% and 28.6%, respectively, of term loans were originated through OnDeck Marketplace. Marketplace is generally a readily available source of liquidity when we elect to utilize it. Historically, due to the nature of the demand of Marketplace participants, we elected to sell a significant volume of loans. As a result of our recent election to decrease Marketplace sales due to the lower premiums available, we either utilized our debt facilities to the extent available, or otherwise invested our own cash to originate these loans and hold them on our balance sheet. We expect the utilization of Marketplace during the second half of 2016 to be generally comparable to the first half of 2016. To the extent our use of OnDeck Marketplace as a funding source decreases in the future due to lower available premiums or otherwise, we may choose to generate liquidity through our other available funding sources.

Cash and Cash Equivalents, Loans (Net of Allowance for Loan Losses), and Cash Flows
The following table summarizes our cash and cash equivalents, loans (net of ALLL) and cash flows:
 
As of and for the Six Months Ended June 30,
 
2016
 
2015
 
(in thousands)
Cash and cash equivalents
$
78,063

 
$
179,692

Restricted cash
$
39,816

 
$
28,267

Loans held for investment, net
$
730,549

 
$
460,867

Cash provided by (used in):
 
 
 
Operating activities
$
52,313

 
$
50,286

Investing activities
$
(311,137
)
 
$
(63,500
)
Financing activities
$
176,897

 
$
(27,404
)
Our cash and cash equivalents at June 30, 2016 were held primarily for working capital purposes. During the first six months of 2016, we used substantial amounts of our excess cash and cash equivalents to fund our loans. We may continue to use excess cash and cash equivalents to fund our lending activities, the amount of which may vary significantly depending upon numerous factors including the capacity of our debt facilities, conditions in the securitization market and premiums available to us through Marketplace. We do not enter into investments for trading or speculative purposes. Our policy is to invest any cash in excess of

43

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our immediate working capital requirements in investments designed to preserve the principal balance and provide liquidity. Accordingly, our excess cash is invested primarily in demand deposit accounts that are currently providing only a minimal return.
Our restricted cash represents funds held in accounts as reserves on certain debt facilities and as collateral for issuing bank partner transactions. We have no ability to draw on such funds as long as they remain restricted under the applicable arrangements.
Cash Flows
Operating Activities
For the six months ended June 30, 2016, net cash provided by our operating activities was $52.3 million, which was primarily the result of our cash received from our customers including interest payments of $138.2 million, plus proceeds from sale of loans held for sale of $170 million, less $162.2 million of originations of loans held for sale in excess of loan repayments received, $79.3 million utilized to pay our operating expenses, $9.4 million used to pay the interest on our debt (both funding and corporate) and $6.0 million of origination costs paid in excess of fees collected. During that same period, accounts payable and accrued expenses and other liabilities increased by approximately $0.9 million.
For the six months ended June 30, 2015, net cash provided by our operating activities was $50.3 million, which was primarily the result of our cash received from our customers, attributable to interest payments totaling approximately $119.7 million, less the amount of cash we utilized to pay our operating expenses of approximately $62.3 million and $8.1 million we used to pay the interest on our debt (both funding and corporate). During that same period, accounts payable and accrued expenses and other liabilities increased by approximately $10.3 million.
Investing Activities
Our investing activities have consisted primarily of funding our term loan and line of credit originations, including payment of associated direct costs and receipt of associated fees, offset by customer repayments of term loans and lines of credit, purchases of property, equipment and software, capitalized internal-use software development costs, proceeds from the sale of term loans which were not specifically identified at origination through our OnDeck Marketplace and changes in restricted cash. Purchases of property, equipment and software and capitalized internal-use software development costs may vary from period to period due to the timing of the expansion of our operations, the addition of employee headcount and the development cycles of our internal-use technology.
From time to time in the past, we have voluntarily purchased and expect again in the future to voluntarily purchase our loans that were previously sold to third parties. The circumstances under which we effect these transactions depends on a variety of factors. In determining whether to engage in a certain voluntary purchase transaction, we consider, among other things, our relationship with the potential seller, the potential purchase price, credit profile of the target loans, our overall liquidity position and possible alternative uses of cash. Although these purchases have not been material in the past, depending upon the circumstances, they could be material in the future, depending on the quantity and timing of these purchases.
For the six months ended June 30, 2016, net cash used to fund our investing activities was $311.1 million and consisted primarily of $321.8 million of loan originations in excess of loan purchases and repayments received, $21.0 million of origination costs paid in excess of fees collected and $8.1 million for the purchase of property, equipment and software and capitalized internal-use software development costs offset by $41.4 million of proceeds from sales of loans held for investment. The growth in our loan originations was consistent with the overall increase in revenue during the year. We also restricted less cash as collateral for financing arrangements, resulting in a $1.4 million increase in unrestricted cash during the year.
For the six months ended June 30, 2015, net cash used to fund our investing activities was $63.5 million and consisted primarily of $100.1 million of loan originations in excess of loan repayments received, proceeds from the sale of loans held for investment of $58.9 million, $17.3 million of origination costs paid in excess of fees collected and $6.2 million for the purchase of property, equipment and software and capitalized internal-use software development costs. We also restricted less cash as collateral for financing arrangements, resulting in a $1.2 million increase in unrestricted cash during the year.
Financing Activities
Our financing activities have consisted primarily of the net borrowings from our securitization facility and our revolving debt facilities.
For the six months ended June 30, 2016, net cash provided by our financing activities was $176.9 million and consisted primarily of $179.3 million in net borrowings from our revolving debt facilities, primarily associated with the increase in loan originations during the year and $1.5 million of cash received from the issuance of common stock under our employee stock purchase plan, offset by $3.7 million in payments of debt issuance costs primarily associated with the closing of our $250 million securitization facility in May 2016.
For the six months ended June 30, 2015, net cash used to fund our financing activities was $27.4 million and consisted primarily of $31.5 million in net repayments on our revolving debt facilities, $7.1 million of cash received for investment by

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noncontrolling interest in On Deck Capital Australia PTY LTD and $1.8 million of payments of initial public offering costs. Borrowings from our debt facilities decreased from the prior year period due to growth of OnDeck Marketplace and our use of available cash from our IPO, which permitted us to fund more loans without drawing corresponding debt, thereby reducing interest expense.
Operating and Capital Expenditure Requirements
We require substantial capital to fund our current operating and capital expenditure requirements. We expect these requirements to increase as we pursue our growth strategy.
As a result of our growth strategy, we increased our annual originations significantly over each of the past three years. Our originations were $0.5 billion in 2013, $1.2 billion in 2014 and $1.9 billion in 2015, which equates to annual year over year growth rates of 165%, 152% and 62%, respectively. In comparison, originations for the six months ended June 30, 2016 increased 39% over originations for the comparable prior year period.
Our strategy is to continue to grow in a disciplined manner while remaining highly focused on credit quality and operating leverage. While we expect our originations to continue to grow in absolute dollars for the full year 2016, we expect our year over year growth rates to continue to decline. The expected growth rate decline can be attributed to several factors. First, as OnDeck continues to mature, it is more difficult to maintain historical growth rates due to the increased size of the previous year’s originations. Because we will remain focused on credit quality, we are also prepared to forgo lending opportunities that do not meet our credit, underwriting and pricing standards. In addition, despite the continuing competition for customer response, we intend to allocate resources to continue to optimize marketing and customer acquisition costs based on targeted returns on investment rather than spending inefficiently in these areas to achieve incremental growth.
Although by design our disciplined growth strategy will result in lower originations growth as a percentage of the prior year’s originations compared to a more aggressive growth strategy, we believe it will increase our operating leverage and improve our overall performance.
In order to maintain and grow our current rate of loan originations over the next twelve month period, we will be required to secure additional funding. We plan to do this through one or more of the following sources: new asset-backed securitization transactions, new debt facilities, extensions and increases to existing debt facilities, and increases in our corporate line of credit.
We estimate that ineligible loans and our portfolio's residual value have, in comparable proportion when aggregated on a cash basis, required us to invest in excess of $250 million of our own cash in our current loan portfolio. While investing in our portfolio's residual value is a requirement of our funding model and will remain a use of cash so long as we continue to grow loan balances, the use of cash to fund ineligible loans can be mitigated as we obtain funding capacity, either through debt facilities or Marketplace for currently ineligible loans. We are currently in the process of doing so and are confident we will be able to obtain such funding capacity although there can be no assurance that we will be successful.
Financing received for currently ineligible loans, as well as cash flow generated from operations, will allow us to continue funding residual growth as our financed portfolio grows. In addition, we may also finance our expected residual growth through other as of yet unused liquidity sources such as our corporate line of credit or additional subordinate notes in our debt facilities.
Historically we have been successful in accessing the asset-backed loan market on terms acceptable to us and we anticipate that we will be able to do so into the foreseeable future. However, if we deem the cost of accessing the asset-backed loan market to be in excess of an appropriate rate, we may elect to use available cash, seek to increase the use of Marketplace, or use other financing options available to us. Furthermore, we could decide to alter the types of loans we originate, such that more loans are eligible for credit facilities, or we could decide to slow down the rate of originations.
In addition to pursuing funding through OnDeck Marketplace or additional debt funding sources as described above, although it is not currently anticipated, depending upon the circumstances we may seek additional equity financing. The sale of equity may result in dilution to our stockholders, and those securities may have rights senior to those of our common shares. If we raise additional funds through the issuance of additional debt, the agreements governing such debt could contain covenants that would restrict our operations and such debt would rank senior to shares of our common stock.  
We believe that our cash from operations, available capacity under our revolving lines of credit (and expected extensions or replacements of those lines), liquidity from expected sales of loans through OnDeck Marketplace and existing cash balances, together with additional financing we expect to be able to obtain on market terms, are sufficient to meet both our existing operating and capital expenditure requirements and our currently planned growth for at least the next 12 months.
It is possible that we may require capital in excess of amounts we currently anticipate.  Depending on market conditions and other factors, we may not be able to obtain additional capital for our current operations or anticipated future growth on reasonable terms or at all.


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Contractual Obligations
Other than as described below, there have been no material changes in our commitments under contractual obligations from those disclosed in our Annual Report on Form 10-K for the year ended December 31, 2015.
ODART Credit Agreement Amendment
On June 17, 2016, OnDeck Account Receivables Trust 2013-1 LLC (“ODART”), one of our wholly-owned subsidiaries, amended and restated one of its existing asset-backed revolving debt facilities (the “Deutsche Bank Facility”) as described below. On that date, ODART entered into that certain Third Amended and Restated Credit Agreement (the “Third A&R Credit Agreement”) with the Lenders party thereto from time to time, Deutsche Bank AG, New York Branch, as Administrative Agent for the Class A Revolving Lenders (in such capacity, the “Administrative Agent”), as Class B Agent for the Class B Revolving Lender (in such capacity, the “Class B Agent”), and as Collateral Agent for the Secured Parties (in such capacity, the “Collateral Agent”), Deutsche Bank Trust Company Americas, as Paying Agent for the Lenders (the “Paying Agent”), and Deutsche Bank Securities Inc. (“DBSI”), as Lead Arranger, Syndication Agent (in such capacity, “Syndication Agent”) and Documentation Agent (in such capacity, “Documentation Agent”). The Third A&R Credit Agreement amends and restates the Second Amended and Restated Credit Agreement (the “Second A&R Credit Agreement”), dated as of October 7, 2015, by and among ODART, the Lenders party thereto from time to time, the Administrative Agent, the Collateral Agent, the Paying Agent, Syndication Agent and Documentation Agent. The Second A&R Credit Agreement was previously filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2015.
The Third A&R Credit Agreement provides for:
•
the reintroduction of Class B revolving loans from the Class B Revolving Lender resulting in additional funding capacity of up to $12.4 million, thereby increasing the facility size to up to $162.4 million;
•
a borrowing base advance rate for the Class B revolving loans of 92%;
•
an interest rate for the Class B revolving loans equal to LIBOR + 8.00%;
•
the increase in the specified portion of the facility usable for the financing of our weekly pay term loan product;
•
various related technical, definitional, conforming and other changes.
The foregoing description of the Third A&R Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the Third A&R Credit Agreement, which is filed as Exhibit 10.1 to this report and incorporated herein by reference.

OnDeck Asset Securitization Trust II LLC Transaction Closing
On May 17, 2016, we established a new asset-backed securitization facility through OnDeck Asset Securitization Trust II LLC (“ODAST II”), a wholly-owned special purpose vehicle. On such date, ODAST II issued $250 million initial principal amount of Fixed-Rate Asset Backed Notes (the “Series 2016-1 Notes”) in a new securitization transaction (the “Series 2016-1 Transaction”). The Series 2016-1 Notes are the first series of notes issued by ODAST II.
The Series 2016-1 Notes were issued in two classes, Class A and Class B, and were rated by Standard & Poor’s Rating Services and DBRS, Inc. on the issue date. The Series 2016-1 Notes were issued pursuant to a Base Indenture (the “Base Indenture”), as supplemented by the Series 2016-1 Indenture Supplement (the “Series 2016-1 Indenture Supplement,” and together with the Base Indenture, the “Indenture”), each dated as of May 17, 2016, by and between ODAST II and Deutsche Bank Trust Company Americas, as indenture trustee. The Base Indenture permits ODAST II to issue additional series of asset-backed notes in the future. The Series 2016-1 Notes are, and future series of notes, if any, issued under the same Base Indenture will be, secured by and payable from collections received on a revolving pool of small business loans transferred from time to time from us to ODAST II. At the time of issuance of the Series 2016-1 Notes, the portfolio of loans held by ODAST II and pledged to secure the Series 2016-1 Notes was approximately $274.8 million.
The following table summarizes certain aspects of the Series 2016-1 Transaction:
Initial principal amount
$211.5 million (Class A); $28.5 million (Class B)
Interest Rate
4.21% (Class A); 7.63% (Class B)
Revolving Period(1)
Ends April 30, 2018
Optional Prepayment
Beginning April 17, 2018
Final Maturity
May 2020
(1)The period during which remaining cash flow can be used to purchase additional loans.
Our ability to utilize the asset-backed securitization facility is subject to compliance with various requirements set forth in the documents governing the Series 2016-1 Transaction. Such requirements include:

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•
Eligibility Criteria. In order for our loans to be eligible for purchase by ODAST II, they must meet all applicable eligibility criteria. Eligibility criteria include, among others, that the applicable loan is denominated in U.S. dollars, that the customer under such loan had a certain minimum OnDeck Score® at the time of underwriting, that such loan was originated in accordance with our underwriting policies and that such loan is a legal, valid and binding obligation of the obligor under such loan.
•
Concentration Limits. The ODAST II collateral pool is subject to certain concentration limits that, if exceeded, would require ODAST II to add or maintain additional collateral. Failure to so add or maintain additional collateral would result in the occurrence of an amortization event. Concentration limits in respect of the Series 2016-1 Transaction include, among others, geography, industry, minimum OnDeck Score, time in business, original term, outstanding principal balance and loans with scheduled loan payments occurring once a week.
Our ability to utilize the asset-backed securitization facility is also subject to compliance with various covenants and other specified requirements set forth in the documents governing the Series 2016-1 Transaction. The failure to comply with such covenants and requirements may result in the accelerated repayment of amounts owed with respect to the Series 2016-1 Notes, often referred to as an amortization event, events of default under the Base Indenture and/or the termination of the facility. Such requirements include:
•
Financial Covenants. Financial covenants include, among others, requirements with respect to minimum tangible net worth, maximum leverage ratio, minimum consolidated liquidity and minimum unrestricted cash.
•
Portfolio Performance Covenants. Portfolio performance covenants include requirements that the pool not exceed certain delinquency rates and that the loan yield and the excess spread on the pool not be less than stated minimum levels. Excess spread is generally the amount by which collections received by ODAST II during a collection period (primarily interest and fees) exceed its fees and expenses during such collection period (including interest expense, servicing fees and charged-off receivables).
•
Other Events. Other events may include, among others, certain insolvency-related events, events constituting a servicer default, failure to make required payments or deposits, and events related to breaches of terms, representations, warranties or affirmative and restrictive covenants. Restrictive covenants, among other things, impose limitations or restrictions on ODAST II’s ability to pay dividends, redeem its membership interests, or the ability of ODAST II to incur additional indebtedness, make investments, engage in transactions with affiliates, sell assets, consolidate or merge, make changes in the nature of its business and create liens.
Following an amortization event with respect to the Series 2016-1 Notes, the collections on the collateral are also applied to repay principal on the Series 2016-1 Notes. Following an event of default under the Base Indenture, the collections on collateral are also applied to repay principal on the Series 2016-1 Notes and other outstanding notes, if any, issued by ODAST II.
We are acting as servicer with respect to the small business loans held by ODAST II. If we default in our servicing obligations or fails to meet certain financial or other covenants, an amortization event could occur and/or we could be replaced by a designated backup servicer or another replacement servicer.
The loans and other assets transferred by us to ODAST II are owned by ODAST II, are pledged to secure the payment of the notes issued by ODAST II, are assets of ODAST II and are not available to satisfy any of our obligations. Investors in the Series 2016-1 Transaction do not have direct recourse to On Deck Capital, Inc.
The Series 2016-1 Notes were not and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption from, or a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Series 2016-1 Notes were offered only to qualified institutional buyers under Rule 144A and to persons outside the United States pursuant to Regulation S under the Securities Act. Credit ratings are opinions of the relevant rating agency. They are not facts and are not opinions of the Company. They are not recommendations to purchase, sell or hold any securities and can be changed or withdrawn at any time.
The foregoing description of the Series 2016-1 Transaction does not purport to be complete and is qualified in its entirety by reference to the Base Indenture and the Series 2016-1 Indenture Supplement, which are filed as Exhibit 10.2 and Exhibit 10.3 respectively to this report and incorporated herein by reference.
ODAC Credit Agreement Amendment
On April 28, 2016, On Deck Asset Company, LLC , or ODAC, one of our wholly-owned subsidiary, amended and restated its existing asset-backed revolving debt facility, or the ODAC Facility, which is utilized solely for the financing of our line of credit offering, as described below. On that date, ODAC entered into that certain Third Amended and Restated Credit Agreement, or the Third A&R Credit Agreement, with the Lenders party thereto from time to time and WC 2014-1, LLC, as Administrative

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Agent for the Lenders, or the Administrative Agent, and Deutsche Bank Trust Company Americas, as Paying Agent and as Collateral Agent for the Secured Parties, or the Collateral Agent. The Third A&R Credit Agreement amends and restates the Second Amended and Restated Credit Agreement, or the Second A&R Credit Agreement, dated as of December 19, 2014, by and among ODAC, as Borrower, the Lenders party thereto from time to time, the Administrative Agent and the Collateral Agent. The Second A&R Credit Agreement was previously filed as Exhibit 10.16 to our Annual Report on Form 10-K for the year ended December 31, 2014.
The Third A&R Credit Agreement provides for:
•
an increase in the Lenders' revolving commitment from an aggregate amount of $50 million to $75 million;
•
an increase in the revolving loans interest rate from LIBOR + 8.25% to LIBOR + 9.25%;
•
an increase in the borrowing base advance rate from 70% to 75%;
•
an extension of the date on or prior to which early termination fees may be payable in the event of a termination or other permanent reduction of the revolving commitments by approximately 11 months to April 28, 2017;
•
certain changes to portfolio performance covenants; and
•
various related technical, definitional, conforming and other changes.
The foregoing description of the Third A&R Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the Third A&R Credit Agreement, which is filed as Exhibit 10.4 to this report and incorporated herein by reference.

SunTrust Credit Agreement Amendment
On February 26, 2016, Receivable Assets of OnDeck, LLC, or RAOD, one of our wholly-owned subsidiaries, amended and restated its existing asset-backed revolving debt facility, or the SunTrust Facility. On that date, RAOD entered into that certain Amended and Restated Credit Agreement, or the A&R SunTrust Credit Agreement, with the Lenders party thereto from time to time, SunTrust Bank, as Administrative Agent for the Class A Revolving Lenders, or the Administrative Agent, and Wells Fargo Bank, N.A., as Paying Agent, or in such capacity, the Paying Agent, and as Collateral Agent for the Secured Parties, or in such capacity, the Collateral Agent. The A&R SunTrust Credit Agreement amends and restates that certain Credit Agreement, or the SunTrust Credit Agreement, by and among RAOD, as Borrower, the Lenders party thereto, the Administrative Agent, the Paying Agent and the Collateral Agent. The SunTrust Credit Agreement was previously filed as Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, as filed with the SEC on August 11, 2015.
The A&R SunTrust Credit Agreement amends the SunTrust Credit Agreement to provide for:
•
an increase in the Class A Revolving Lenders' revolving commitment from an aggregate amount of $50 million to $100 million;
•
the utilization of up to half of the SunTrust Facility to finance our expanded term loan range offered to select, highly qualified customers, which reflects an increase in the maximum scheduled loan term (to up to 36 months) and the maximum original principal amount (to up to $500,000);
•
certain changes to portfolio performance covenants; and
•
various related technical, definitional, conforming and other changes.
The foregoing description of the A&R SunTrust Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the A&R SunTrust Credit Agreement, which was previously filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, as filed with the SEC on May 5, 2016. At June 30, 2016, there were $100 million in borrowings outstanding under this facility.

Off-Balance Sheet Arrangements
As of June 30, 2016, we did not have any off-balance sheet arrangements, as defined in Item 303(a)(4)(ii) of Regulation S-K, such as the use of unconsolidated subsidiaries, structured finance, special purpose entities or variable interest entities.


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Critical Accounting Policies and Significant Judgments and Estimates
Our management’s discussion and analysis of our financial condition and results of operations is based on our condensed consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of these condensed consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the condensed consolidated financial statements and the reported amounts of revenue and expenses during the reported period. In accordance with GAAP, we base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions.
Refer to Note 1, Organization and Summary of Significant Accounting Policies, contained in the Notes to Unaudited Condensed Consolidated Financial Statements in Item 1 of Part I of this report for additional critical accounting policies as compared to those described in our Annual Report on Form 10-K for the year ended December 31, 2015.
Other than noted above, there have been no material changes to our critical accounting policies and estimates as compared to those described in our Annual Report on Form 10-K for the year ended December 31, 2015.
Recently Issued Accounting Pronouncements and JOBS Act Election
Refer to Note 1, Organization and Summary of Significant Accounting Policies, contained in the Notes to Unaudited Condensed Consolidated Financial Statements in Item 1 of Part I of this report for a full description of the recent accounting pronouncements and our expectation of their impact, if any, on our results of operations and financial conditions.
Under the JOBS Act, we meet the definition of an “emerging growth company.” We have irrevocably elected to opt out of the extended transition period for complying with new or revised accounting standards pursuant to Section 107(b) of the JOBS Act.


Item 3.
Quantitative and Qualitative Disclosures About Market Risk
There have been no material changes from the information previously reported under Part II, Item 7A of our Annual Report on Form 10-K for the year ended December 31, 2015.

Item 4.
Controls and Procedures
Evaluation of Disclosure Controls and Procedures
As required by Rule 13a-15 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, management has evaluated, with the participation of our Chief Executive Officer and Chief Financial Officer, the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Disclosure controls and procedures refer to controls and other procedures designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act are recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Exchange Act are accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding our required disclosure. In designing and evaluating our disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating and implementing possible controls and procedures.
Based on the foregoing evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of June 30, 2016, the end of the period covered by this report, our disclosure controls and procedures were effective at a reasonable assurance level.

Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting during the quarter ended June 30, 2016 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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PART II - OTHER INFORMATION
 
Item 1.
Legal Proceedings
Two separate putative class actions were filed in August 2015 in the United States District Court for the Southern District of New York against us, certain of our executive officers, our directors and certain or all of the underwriters of our IPO. The suits allege that the registration statement and prospectus for our IPO contained materially false and misleading statements regarding, or failed to disclose, certain information in violation of the Securities Act of 1933, as amended. The suits seek a determination that the case is a proper class action and/or certification of the plaintiff as a class representative, rescission or a rescissory measure of damages and/or unspecified damages, interest, attorneys’ fees and other fees and costs. On February 18, 2016, the court issued an order (1) consolidating the two cases, (2) selecting the lead plaintiff and (3) appointing lead class counsel.  On March 18, 2016, the lead plaintiff filed an amended complaint. On April 14, 2016, the court approved a schedule allowing the defendants 60 days to file a motion to dismiss, allowing the plaintiff to file any opposition within 60 days of the filing of the motion to dismiss and allowing the defendants to file a reply within 30 days after the filing of plaintiff’s opposition. On June 13, 2016, we filed a motion to dismiss the case. On August 4, 2016, the court approved an extension of plaintiff's time to file his opposition to the motion to dismiss from August 12, 2016 to September 2, 2016. We intend to defend ourselves vigorously in these consolidated matters, although at this time we cannot predict the outcome.

From time to time we are subject to other legal proceedings and claims in the ordinary course of business. The results of such matters cannot be predicted with certainty. However, we believe that the final outcome of any such current matters will not result in a material adverse effect on our consolidated financial condition, consolidated results of operations or consolidated cash flows.


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Item 1A.
Risk Factors
Our current and prospective investors should carefully consider the following risks, in addition to those described in "Item 1A. Risk Factors" in our Annual Report on Form 10-K for the year ended December 31, 2015, and other documents that we file with the SEC from time to time which are available on the SEC website at www.sec.gov, and all other information contained in this report, including our unaudited consolidated financial statements and the related notes, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the “Cautionary Note Regarding Forward-Looking Statements,” before making investment decisions regarding our securities. The risks and uncertainties described below supplement, or to the extent inconsistent, supersede those in our above-mentioned Form 10-K. In addition, the risks and uncertainties below and in such 10-K are not the only ones we face, but include the most significant factors currently known by us. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, also may become important factors that affect us. If any of the following risks materialize, our business, financial condition and results of operations could be materially harmed. In that case, the trading price of our securities could decline, and you may lose some or all of your investment.
We require substantial capital and in the future may require additional capital to pursue our business objectives and growth strategy, and in particular our ability to fund loan originations. If adequate capital is not available to us, our business, operating results and financial condition may be harmed.
Since our founding, we have raised substantial equity and debt financing to support the growth of our business. Because we intend to continue to make investments to support the growth of our business, we require additional capital to pursue our business objectives and growth strategy and respond to business opportunities, challenges or unforeseen circumstances, including lending to our customers, increasing our marketing expenditures to attract new customers and improve our brand awareness, developing and offering loans with new characteristics, introducing new products or services, expanding internationally or further improving existing products and services, enhancing our operating infrastructure and potentially acquiring complementary businesses and technologies. Accordingly, on a regular basis we need or we may need to engage in equity or debt financings to secure additional funds. However, additional funds may not be available when we need them, in amounts we need, on terms that are acceptable to us or at all. Volatility in the credit markets in general or in the market for small business or internet loans in particular may also have an adverse effect on our ability to obtain debt financing. Furthermore, the cost of our borrowing may increase due to market volatility, changes in the risk premiums required by lenders or if traditional sources of debt capital are unavailable. Volatility or depressed valuations or trading prices in the equity markets may similarly adversely affect our ability to obtain equity financing. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock.
In particular, we may require additional access to capital to support our lending operations, and we are funding an increasing amount of originations via our available cash on hand. For example, in September 2015, we began offering term loans up to $500,000 with terms as long as 36 months and lower interest rates for qualified customers compared to the rates on our historical term loans. These term loans may have lower margins than loans we have historically made (due to the risk profile of customers eligible for these types of loans). While such loans are currently eligible to be financed through at least one of our existing debt facilities, our ability to finance such loans is limited due to maximum concentration limits, available borrowing capacity and other similar factors. In order to fund such loans that cannot be financed through our debt facilities, we have used, and expect to continue to use, our available cash on hand. In addition, because we are funding fewer loans via Marketplace, as described elsewhere in this report in Item 1A. Risk Factors, we must fund an increasing amount of originations via our available cash on hand. Furthermore, for all loans that are eligible for funding under the terms of our debt or securitization facilities, these facilities have advance rate limitations on the maximum percentage of collateral that may be financed, which requires us to fund the excess portion through our available cash in hand. Due in significant part to the decrease in Marketplace sales and because we have financed a growing amount of originations with our available cash on hand, our cash declined from approximately $160 million at December 31, 2015 to approximately $78 million at June 30, 2016.
We expect that we will continue to use our available cash to fund a portion of our loans and support our growth initiatives and general operations. To supplement our cash resources, we are exploring expanding or modifying our existing debt facilities to provide additional capacity as well as to expand eligibility requirements; adding new debt facilities or replacing or renewing debt facilities scheduled to expire; entering into additional securitizations; increasing our corporate revolving debt facility; expanding the volume of loans that we sell through OnDeck Marketplace and other potential options. If we are unable to adequately supplement our cash resources, we may delay non-essential capital expenditures; implement cost cutting procedures; delay or reduce future hiring; or reduce our rate of future originations compared to current levels. There can be no assurance when we will obtain sufficient sources of external capital to support the growth of our business. Delays in doing so or failure to do so may require

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us to reduce loan originations or reduce our operations, which would harm our ability to pursue our business objectives as well as harm our business, operating results and financial condition.
Our business may be adversely affected by disruptions in the credit markets, our failure to comply with our debt agreements, or the termination of our debt agreements, including reduced access to credit and other financing.

Historically, we have depended on debt facilities and other forms of debt in order to finance most of the loans we make to our customers. However, we cannot guarantee that these financing sources will continue to be available beyond the current maturity date of each debt facility, on reasonable terms or at all. As the volume of loans that we make to customers on our platform increases, we may require the expansion of our borrowing capacity on our existing debt facilities and other debt arrangements or the addition of new sources of capital. The availability of these financing sources depends on many factors, some of which are outside of our control. For example, to the extent that the institutional investors that purchase loans from us through OnDeck Marketplace rely on credit to finance those loan purchases, disruptions in the credit market could further harm our ability to grow or maintain OnDeck Marketplace. We may also experience the occurrence of events of default or breaches of financial performance or other covenants under our debt agreements, which could reduce or terminate our access to institutional funding.

In addition, OnDeck Marketplace has substantially declined as a portion of our funding strategy. During 2015, the three months ended March 31, 2016 and the three months ended June 30, 2016, OnDeck Marketplace represented 34.3%, 25.9% and 15.6% of our term loan originations, respectively. In addition, the premiums we have been paid in 2016 have also been lower than those received in 2015. By selling fewer loans via OnDeck Marketplace at lower premiums, we realize lower gain on sale of loans and hold more of our term loan originations on balance sheet, which requires us to self-fund or finance a larger amount of loans. As a result, we have used and may increasingly use available cash on hand to fund originations. While the premiums on sales of loans via OnDeck Marketplace have decreased, we have continued selling a portion of our loans through this channel in order to maintain active relationships with institutional loan purchasers and to obtain additional funding. We may continue selling a portion of our loans via OnDeck Marketplace at lower premiums for similar reasons and there can be no assurance that investors will continue to purchase our loans via OnDeck Marketplace.

We also rely on securitization as part of our funding strategy and have completed two securitization transactions, one of which is currently outstanding. There can be no assurance that we will be able to successfully access the securitization markets again. Furthermore, because we only recently began accessing this source of capital, there is a greater possibility that it may not be available in the future. In the event of a sudden or unexpected shortage of funds in the banking and financial system, we cannot be sure that we will be able to maintain necessary levels of funding without incurring high funding costs, a reduction in the term of funding instruments or the liquidation of certain assets.

Furthermore, on various dates through June 30, 2017, several of our debt facilities are scheduled to either mature or the period during which new borrowings may be made will expire. In connection with these scheduled maturities or expirations, borrowing capacity of $100 million will terminate in August 2016, $20 million will terminate in October 2016, $175 million will terminate in May 2017 and $100 million will terminate in June 2017, and we may not be able to extend or renew these debt facilities.

Accordingly, our ability to finance additional loans (or, in the case of our corporate revolving debt facility, make other borrowings) utilizing these financing sources will end. The interest rates and other costs of new, renewal or amended facilities may also be higher than those currently in effect. If we are to be unable to renew or otherwise replace these facilities or generally arrange new or alternative methods of financing on favorable terms, we may be forced to curtail our origination of loans or reduce operations, which would have a material adverse effect on our business, financial condition, operating results and cash flow.

In connection with our sale of loans to our subsidiaries and through OnDeck Marketplace, we make representations and warranties concerning the loans we sell. If those representations and warranties are not correct, we could be required to purchase the loans. In addition, we anticipate voluntarily purchasing loans previously sold to third parties. Any significant required purchases and/or voluntary purchases could have an adverse effect on our ability to operate and fund our business.
In our asset-backed securitization facility and our other asset-backed revolving debt facilities, we transfer loans to our subsidiaries and make numerous representations and warranties concerning the loans we transfer, including representations and warranties that the loans meet the eligibility requirements. We also make representations and warranties in connection with the loans we sell through OnDeck Marketplace. If the representations and warranties that the loans meet the eligibility requirements are incorrect, we may be required to purchase the loans not satisfying the eligibility requirements. Failure to purchase any loans when required would constitute an event of default under the securitization and other asset-backed facilities and may constitute a termination event under the applicable OnDeck Marketplace agreement. At the request of a loan purchaser, we may voluntarily

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decide to purchase loans sold to third parties. There is no assurance, however, that we would have adequate resources to make such purchases or, if we did make the purchases, that such event might not have a material adverse effect on our business. During the six months ended June 30, 2016, we voluntarily purchased $6.7 million of loans for strategic business reasons, and anticipate we may do so again in the future to the extent that we have adequate resources available to do so. The purchase of loans in large quantities, both on a mandatory or voluntary basis, may have an adverse impact on our liquidity and our ability to originate loans, especially if we are unable to refinance such loans and elect to rely on available cash to purchase them.
We may not have adequate funding capacity in the event that an unforeseen number of customers to whom we have extended a line of credit decide to draw their lines at the same time.
Our current capacity to fund our customers’ lines of credit through existing debt facilities is limited. Accordingly, we maintain cash available to fund our customers’ lines of credit based on the amount that we foresee these customers drawing down. For example, if we make available a line of credit for $15,000 to a small business, we may only reserve a portion of this amount at any given time for immediate drawdown. We base the amount that we reserve on our analysis of aggregate portfolio demand and the historical activity of customers using the line of credit product. However, if we inaccurately predict the number of customers that draw down on their lines of credit at a certain time, or if these customers draw down in greater amounts than we forecast, we may not have enough funds available to lend to them. Failure to provide funds drawn down by our customers on their lines of credit may lead to negative customer experience, damage our reputation and inhibit our growth.
The Supreme Court of the United States declined to hear the appeal of Madden v. Midland Funding, LLC. As a result the decision of the Second Circuit remains in effect and in some circumstances federal preemption will not be available for the benefit of certain purchasers of loans to defend against a state law claim of usury.

In May 2015, the U.S. Court of Appeals for the Second Circuit held in Madden v. Midland Funding, LLC that federal law did not preempt a state’s interest rate limitations when applied to a non-bank debt buyer of a consumer credit card loan seeking to collect interest at the rate originally contracted for by a national bank. The court did not decide, and remanded to the United States District Court for the Southern District of New York, the question of whether New York or Delaware law (the governing law stated in the loan agreement) governed the terms of the loan agreement. The defendant in the Madden case filed a petition for rehearing on June 19, 2015, arguing that the panel’s decision conflicted with precedent from the United States Supreme Court and many other courts, but the Second Circuit denied rehearing on August 12, 2015. In November 2015, the defendant in the Madden case filed a petition for a writ of certiorari with the United States Supreme Court for further review of the Second Circuit’s decision. On June 27, 2015 the United States Supreme Court denied the petition and refused to review the case, which had the effect of leaving the decision of the Second Circuit intact.
The Second Circuit’s holding in the Madden case is binding on federal courts in the states of New York, Connecticut and Vermont. While the Second Circuit’s decision in the Madden case did not decide the question of whether the governing law stated in the applicable loan agreement or the law of the location of the borrower governed the terms of the loan agreement, an extension of the Second Circuit's decision in the Madden case, either within or outside the states included in the Second Circuit, could challenge the preemption of state laws setting interest rate limitations for those loans made by issuing bank partners. If the holding of the Second Circuit were applied by a court with proper jurisdiction to the loans originated by an issuing bank partner and sold to OnDeck and that court determined that the law of the location of the borrower, not the governing law stated in the applicable loan agreement, governed the terms of the loan agreement, and therefore, whether the interest rate charged was permissible, then those loans (or a portion of the principal of and interest on such loans) might be unenforceable and penalties could apply and there could be other related liabilities and reputational harm if OnDeck or a subsequent transferee were to seek to collect on those amounts.


Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
Recent Sales of Unregistered Securities
None.
Use of Proceeds from Initial Public Offering of Common Stock
There has been no material change in the planned use of proceeds from our initial public offering as described in our final prospectus filed with the SEC on December 17, 2014 pursuant to Rule 424(b)(4). During the quarter ended June 30, 2016 (the period covered by this report), pending their application, the net proceeds from our IPO were maintained as described in our final prospectus.

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Issuer Purchases of Equity Securities
None.
Item 3.
Defaults Upon Senior Securities
None.


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Item 4.
Mine Safety Disclosures
None.
 
Item 5.
Other Information
None.


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Item 6.
Exhibits
The documents listed in the Exhibit Index of this report are incorporated by reference or are filed with this Quarterly Report on Form 10-Q, in each case as indicated therein (numbered in accordance with Item 601 of Regulation S-K).

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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
On Deck Capital, Inc.
 
 
 
/s/    Howard Katzenberg         
 
Howard Katzenberg
Chief Financial Officer
(Principal Financial Officer)
Date: August 9, 2016
 
 
 
 
/s/ Nicholas Sinigaglia
 
Nicholas Sinigaglia
Senior Vice President
(Principal Accounting Officer)
Date: August 9, 2016
 

 


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Exhibit Index
 
Exhibit
Number
 
Description
 
Filed / Furnished /
Incorporated by
Reference from
Form *
 
Incorporated
by Reference
from Exhibit
Number
 
Date Filed
3.1
 
Amended and Restated Certificate of Incorporation
 
8-K
 
3.1
 
12/22/2014
3.2
 
Third Amended and Restated Bylaws
 
8-K
 
3.1
 
8/3/2016
4.1
 
Form of common stock certificate.
 
S-1
 
4.1
 
11/10/2014
4.2
 
Ninth Amended and Restated Investors’ Rights Agreement, dated March 13, 2014, by and among the Registrant and certain of its stockholders.
 
S-1
 
4.2
 
11/10/2014
4.3
 
Form of warrant to purchase Series E preferred stock.
 
S-1
 
4.5
 
11/10/2014
4.4
 
Form of warrant to purchase common stock.
 
S-1
 
4.6
 
11/10/2014
10.1
 
Third Amended and Restated Credit Agreement, dated as of June 17, 2016, by and among OnDeck Account Receivables Trust 2013-1 LLC, as Borrower, the Lenders party thereto from time to time, Deutsche Bank AG, New York Branch, as Administrative Agent for the Lenders and Collateral Agent for the Secured Parties, Deutsche Bank Trust Company Americas, as Paying Agent for the Lenders, and Deutsche Bank Securities, Inc., as Syndication Agent, Documentation Agent and Lead Arranger.
 
Filed herewith.
 
 
 
 
10.2
 
Base Indenture, dated May 17, 2016, by and between OnDeck Asset Securitization Trust II LLC and Deutsche Bank Trust Company Americas.
 
Filed herewith.
 
 
 
 
10.3
 
Series 2016-1 Indenture Supplement, dated May 17, 2016, by and between OnDeck Asset Securitization Trust II LLC and Deutsche Bank Trust Company Americas.
 
Filed herewith.
 
 
 
 
10.4
 
Third Amended and Restated Credit Agreement, dated as of April 28, 2016, by and among On Deck Asset Company, LLC, as Borrower, the Lenders party thereto from time to time, WC 2014-1, LLC, as Administrative Agent, and Deutsche Bank Trust Company Americas, as Paying Agent and as Collateral Agent for the Secured Parties.
 
Filed herewith.
 
 
 
 
31.1
 
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, Rule 13a-14(a)/15d-14(a), by President and Chief Executive Officer.
 
Filed herewith.
 
 
 
 
31.2
 
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, Rule 13a-14(a)/15d-14(a), by President and Chief Financial Officer.
 
Filed herewith.
 
 
 
 
32.1
 
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by President and Chief Executive Officer.
 
Filed herewith.

 
 
 
 
32.2
 
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by President and Chief Financial Officer.
 
Filed herewith.


 
 
 
 
101.INS
 
XBRL Instance Document
 
Filed herewith.


 
 
 
 
101.SCH
 
XBRL Taxonomy Extension Schema Document
 
Filed herewith.


 
 
 
 
101.CAL
 
XBRL Taxonomy Extension Calculation Linkbase Document
 
Filed herewith.


 
 
 
 
101.DEF
 
XBRL Taxonomy Extension Definition Linkbase Document
 
Filed herewith.


 
 
 
 

58

Table of Contents

101.LAB

 
XBRL Taxonomy Extension Labels Linkbase Document
 
Filed herewith.


 
 
 
 
101.PRE
 
XBRL Taxonomy Extension Presentation Linkbase Document
 
Filed herewith.


 
 
 
 

 
*
All exhibits incorporated by reference to the Registrant's Form S-1 or S-1/A registration statements relate to Registration No. 333-200043

59

Exhibit
Exhibit 10.1




THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of June 17, 2016

among
ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC,
as Borrower

VARIOUS LENDERS,



DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and Collateral Agent,



DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent,

and

DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent, Documentation Agent, and Lead Arranger



________________________________________________________

$162,353,000 Securitization Warehouse Facility
________________________________________________________





TABLE OF CONTENTS
 
 
 
Page

 
 
 
 
SECTION 1.
 
DEFINITIONS AND INTERPRETATION
1

1.1
 
Definitions
1

1.2
 
Accounting Terms
36

1.3
 
Interpretation, etc.
37

1.4
 
Amendment and Restatement
37

 
 
 
 
SECTION 2.
 
LOANS
37

2.1
 
Revolving Loans
38

2.2
 
Pro Rata Shares
42

2.3
 
Use of Proceeds
42

2.4
 
Evidence of Debt; Register; Lenders’ Books and Records; Notes
43

2.5
 
Interest on Loans
43

2.6
 
Default Interest
44

2.7
 
Fees
45

2.8
 
Revolving Commitment Termination Date
45

2.9
 
Voluntary Commitment Reductions
45

2.10
 
Borrowing Base Deficiency
46

2.11
 
Controlled Accounts
46

2.12
 
Application of Proceeds
50

2.13
 
General Provisions Regarding Payments
52

2.14
 
Ratable Sharing
53

2.15
 
Increased Costs; Capital Adequacy
54

2.16
 
Taxes; Withholding, etc.
56

2.17
 
Obligation to Mitigate
58

2.18
 
Defaulting Lenders
59

2.19
 
Removal or Replacement of a Lender
60

2.20
 
The Paying Agent
61

2.21
 
Duties of Paying Agent
65

2.22
 
Intention of Parties
67

 
 
 
 
SECTION 3.
 
CONDITIONS PRECEDENT
67

3.1
 
Closing Date
67

3.2
 
Conditions to Each Credit Extension
69

 
 
 
 
SECTION 4.
 
REPRESENTATIONS AND WARRANTIES
71

4.1
 
Organization; Requisite Power and Authority; Qualification; Other Names
71

4.2
 
Capital Stock and Ownership
71

4.3
 
Due Authorization
71


i

TABLE OF CONTENTS
(continued)
Page


4.4
 
No Conflict
71

4.5
 
Governmental Consents
72

4.6
 
Binding Obligation
72

4.7
 
Eligible Receivables
72

4.8
 
Historical Financial Statements
72

4.9
 
No Material Adverse Effect
72

4.10
 
Adverse Proceedings, etc.
72

4.12
 
Title to Assets
73

4.13
 
No Indebtedness
73

4.14
 
No Defaults
73

4.15
 
Material Contracts
73

4.16
 
Government Contracts
73

4.17
 
Governmental Regulation
73

4.18
 
Margin Stock
73

4.19
 
Employee Benefit Plans
74

4.20
 
Certain Fees
74

4.21
 
Solvency; Fraudulent Conveyance
74

4.23
 
Compliance with Statutes, etc.
74

4.24
 
Matters Pertaining to Related Agreements
74

4.25
 
Disclosure
75

4.26
 
Patriot Act
75

4.27
 
Remittance of Collections
75

 
 
 
 
SECTION 5.
 
AFFIRMATIVE COVENANTS
75

5.1
 
Financial Statements and Other Reports
75

5.2
 
Existence
78

5.3
 
Payment of Taxes and Claims
78

5.4
 
Insurance
79

5.5
 
Inspections; Compliance Audits; Regulatory Review
79

5.6
 
Compliance with Laws
80

5.7
 
Separateness
80

5.8
 
Further Assurances
80

5.9
 
Communication with Accountants
80

5.10
 
Special Covenants Regarding CRR Compliance
81

5.11
 
Acquisition of Receivables from Holdings
81

5.12
 
No Adverse Selection
82

5.13
 
Class B Revolving Lender Information Rights
82

 
 
 
 
SECTION 6.
 
NEGATIVE COVENANTS
82

6.1
 
Indebtedness
82

6.2
 
Liens
82

6.3
 
Equitable Lien
82

6.4
 
No Further Negative Pledges
82


ii

TABLE OF CONTENTS
(continued)
Page


6.5
 
Restricted Junior Payments
82

6.6
 
Subsidiaries
83

6.7
 
Investments
83

6.8
 
Fundamental Changes; Disposition of Assets; Acquisitions
83

6.9
 
Sales and Lease-Backs
83

6.10
 
Transactions with Shareholders and Affiliates
83

6.11
 
Conduct of Business
83

6.12
 
Fiscal Year
83

6.13
 
Servicer; Backup Servicer; Custodian
83

6.14
 
Acquisitions of Receivables
84

6.15
 
Independent Manager
84

6.16
 
Organizational Agreements and Credit Documents
85

6.17
 
Changes in Underwriting or Other Policies
86

6.18
 
Receivable Forms
86

 
 
 
 
SECTION 7.
 
EVENTS OF DEFAULT
86

7.1
 
Events of Default
86

 
 
 
 
SECTION 8.
 
AGENTS
90

8.1
 
Appointment of Agents
90

8.2
 
Powers and Duties
91

8.3
 
General Immunity
91

8.4
 
Agents Entitled to Act as Lender
92

8.5
 
Lenders’ Representations, Warranties and Acknowledgment
93

8.6
 
Right to Indemnity
93

8.7
 
Successor Administrative Agent and Collateral Agent
94

8.8
 
Collateral Documents
96

 
 
 
 
SECTION 9.
 
MISCELLANEOUS
97

9.1
 
Notices
97

9.2
 
Expenses
97

9.3
 
Indemnity
98

9.4
 
Reserved
99

9.5
 
Amendments and Waivers
99

9.6
 
Successors and Assigns; Participations
101

9.7
 
Independence of Covenants
105

9.8
 
Survival of Representations, Warranties and Agreements
105

9.9
 
No Waiver; Remedies Cumulative
105

9.10
 
Marshalling; Payments Set Aside
105

9.11
 
Severability
106

9.12
 
Obligations Several; Actions in Concert
106

9.13
 
Headings
106

9.14
 
APPLICABLE LAW
106


iii

TABLE OF CONTENTS
(continued)
Page


9.15
 
CONSENT TO JURISDICTION
106

9.16
 
WAIVER OF JURY TRIAL
107

9.17
 
Confidentiality
108

9.18
 
Usury Savings Clause
109

9.19
 
Counterparts
109

9.20
 
Effectiveness
109

9.21
 
Patriot Act
109

9.22
 
Limitation of Liability
109

9.23
 
No Proceedings
110






iv



APPENDICES:
 
 
 
A
Revolving Commitments
 
B
Notice Addresses
 
C
Eligibility Criteria
 
D
Excess Concentration Amounts
 
E
Portfolio Performance Covenants
 
F
Selection Procedures
 
 
 
SCHEDULES:
 
 
 
1.1
Financial Covenants
 
4.1
Jurisdictions of Organization and Qualification; Trade Names
 
4.2
Capital Stock and Ownership
 
 
 
EXHIBITS:
A-1
Form of Funding Notice
 
B-1
Form of Class A Revolving Loan Note
 
B-2
Form of Class B Revolving Loan Note
 
C-1
Form of Compliance Certificate
 
C-2
Form of Borrowing Base Report and Certificate
 
D
Form of Assignment Agreement
 
E
Form of Certificate Regarding Non-Bank Status
 
F-1
Form of Amendment Date Effective Certificate
 
G
Form of Controlled Account Voluntary Payment Notice
 
H
Form of Financing Statement

v




THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 17, 2016, is entered into by and among ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC, a Delaware limited liability company (“Company”), the Lenders party hereto from time to time, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent for the Class A Revolving Lenders (in such capacity, “Administrative Agent”) and as Collateral Agent for the Secured Parties (in such capacity, “Collateral Agent”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent for the Lenders (in such capacity, “Paying Agent”), and DEUTSCHE BANK SECURITIES INC. (“DBSI”), as Lead Arranger, Syndication Agent (in such capacity, “Syndication Agent”) and Documentation Agent (in such capacity, “Documentation Agent”).
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, the Company, the Lenders party hereto, the Administrative Agent, the Collateral Agent, the Paying Agent, DBSI, the Syndication Agent and the Documentation Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of October 7, 2015 (the “Existing Credit Agreement”); and
WHEREAS, in order to continue the existing indebtedness of the Company and make certain accommodations as further described herein, the Company has requested that the Existing Credit Agreement be amended and restated in its entirety (the “Amendment and Restatement”), and the Lenders party thereto are willing to do so on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.    DEFINITIONS AND INTERPRETATION
1.1    Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“15 Day Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) that have a Missed Payment Factor of (i) with respect to Daily Pay Receivables, fifteen (15) or higher, or (ii) with respect to Weekly Pay Receivables, three (3) or higher), in each case, as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.
“10-20 Day Delinquent Receivable” means, as of any date of determination, (x) any Daily Pay Receivable with a Missed Payment Factor of more than ten (10) but less than twenty-one (21) and with respect to which a Payment has been received on at least one of the last three (3)

vi

 

Payment Dates, and (y) any Weekly Pay Receivable with a Missed Payment Factor of more than two (2) but less than or equal to four (4), and with respect to which a Payment has been received on such Receivable on the last Payment Date.
“AA Indemnitee Agent Party” as defined in Section 8.6(a).
“Accrued Interest Amount” means, as of any day, the aggregate amount of all accrued and unpaid interest on the Loans payable hereunder, assuming for this purpose that the Cost of Funds Rate for each Class A Revolving Loan funded by a Class A Revolving Conduit Lender for each day since the most recent Interest Payment Date was equal to the rate per annum determined by the Paying Agent at approximately 11:00 a.m., London time, on such day by reference to the British Bankers’ Association Interest Settlement Rate (or any successor thereto) for deposits in dollars for a period of one month (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Paying Agent in its sole discretion) (the “Daily LIBOR Rate”) plus the amount, if any, by which the average of the Cost of Funds Rates for such Class A Revolving Conduit Lender for each day during the three immediately preceding Interest Periods exceeded the average of the Daily LIBOR Rates on each day during such Interest Periods.
“ACH Agreement” has the meaning set forth in the Servicing Agreement.
“ACH Receivable” means each Receivable with respect to which the underlying Receivables Obligor has entered into an ACH Agreement.
“Act” as defined in Section 4.26.
“Adjusted EPOB” means, as of any date of determination, the excess of (a) the Eligible Portfolio Outstanding Principal Balance as of such date over (b) the sum of, without duplication, (i) the aggregate Excess Concentration Amounts as of such date and (ii) the product of 70% and the aggregate Eligible Portfolio Outstanding Principal Balance of all 10-20 Day Delinquent Receivables as of such date.
“Adjusted Interest Collections” means, with respect to any Monthly Period, an amount equal to (a) the product of (i) the sum of (x) all Collections received during such Monthly Period that were not applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables in accordance with Section 2(a)(i)(4) of the Servicing Agreement and (y) all Collections received during such Monthly Period that were recoveries with respect to Charged-Off Receivables (net of amounts, if any, retained by any third party collection agent) and (ii) the quotient of 21 divided by the number of Business Days in such Monthly Period minus (b) the aggregate amount paid by Company on the related Interest Payment Date pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(vii) and (a)(ix) of Section 2.12.
“Adjusted LIBO Rate” means, for any Interest Period, an interest rate per annum obtained by dividing (i) the LIBO Rate for such Interest Period by (ii) a percentage equal to 100% minus the LIBO Rate Reserve Percentage for such Interest Period.

1
 

“Administrative Agent” as defined in the preamble hereto. The term “Administrative Agent” shall include, for all purposes of the Credit Documents, any successor Administrative Agent appointed pursuant to Section 8.7(a)(i) (including, for the avoidance of doubt and without limitation, any successor Administrative Agent appointed pursuant to the last sentence thereof).
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration at law or in equity, or before or by any Governmental Authority, domestic or foreign.
“Affected Party” means any Lender, Deutsche Bank AG, New York Branch, in its individual capacity and in its capacity as Administrative Agent, Paying Agent, any Class A Managing Agent, any Liquidity Provider and, with respect to each of the foregoing, the parent company or holding company that controls such Person.
“Affiliate” means, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, “control” means the power to direct the management and policies of a Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and “controlled” and “controlling” have meanings correlative to the foregoing.
“Agency Agreement” means that certain Secured Party Representative Services Agreement, dated as of June 20, 2012, between Holdings and the UCC Agent, or any successor or other agreement with a UCC Agent serving substantially the same purpose.
“Agent” means each of the Class A Managing Agents, Paying Agent, Syndication Agent, Administrative Agent, Collateral Agent, and Documentation Agent.
“Aggregate Amounts Due” as defined in Section 2.14.
“Agreement” means this Third Amended and Restated Credit Agreement, dated as of June 17, 2016, as it may be amended, supplemented or otherwise modified from time to time.
“Alternative Rate” means, with respect to a Loan on any day, an interest rate per annum equal to the Adjusted LIBO Rate for the related Interest Period; provided, however, that if a LIBOR Disruption Event is continuing on such day, the Alternative Rate shall be an interest rate per annum equal to the Prime Rate in effect on such day.
“Amendment and Restatement” as defined in the Recitals hereto.
“Amendment Effective Date” means the date of this Agreement.
“Amendment Effective Date Certificate” means an Amendment Effective Date Certificate substantially in the form of Exhibit F‑1.
“Applicable Class A Advance Rate” means 85%.

2
 

“Applicable Class B Advance Rate” means 92%.
“Approved State” means each of the 50 United States of America and the District of Columbia; provided, however, that, in the event that the Administrative Agent determines in its Permitted Discretion to revoke the designation or restore a previously revoked designation of any jurisdiction as an “Approved State” due to a change in, or change in the interpretation of, the regulations or law (including case law) relating to (i) the origination, administration, servicing or terms, including interest rates, of any loan made to a Receivables Obligor; (ii) the choice of law, or the enforceability of the choice of law, that governs a loan made to a Receivables Obligor; or (iii) the choice of venue or the choice of jurisdiction, or the enforceability of the choice of venue or the choice of jurisdiction, that governs a loan made to a Receivables Obligor, then upon receipt by Company of notice thereof from the Administrative Agent, each such jurisdiction shall or shall no longer constitute an “Approved State”, as applicable.
“Asset Purchase Agreement” means that certain Second Amended and Restated Asset Purchase Agreement dated as of the Second Amendment Effective Date, by and between Company, as Purchaser, and the Seller, as amended, modified or supplemented from time to time, whereby the Seller has agreed to sell and Company has agreed to purchase Eligible Receivables from time to time.
“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of Holdings’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired.
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, chief financial officer, general counsel, treasurer, corporate secretary, controller or senior vice president of capital markets (or, in each case, the equivalent thereof).
“Average Excess Spread” means, for any Monthly Period, the average of the Excess Spread determined for such Monthly Period and the Monthly Period immediately preceding such Monthly Period.
“Backup Servicer” means Portfolio Financial Servicing Company or any replacement thereof appointed by the Requisite Lenders in accordance with Section 6.13, who will perform backup servicing and backup verification functions with respect to the Eligible Receivables.
“Backup Servicing Agreement” means that certain Amended and Restated Backup Servicing Agreement, dated as of the Second Amendment Effective Date, among Company, the Servicer, the Administrative Agent and Backup Servicer, as it may be amended, modified or

3
 

supplemented from time to time in accordance with Section 6.16, and any other agreement entered into from time to time among Company, the Servicer, the Administrative Agent and Backup Servicer with respect to the backup servicing and verification of the Eligible Receivables.
“Backup Servicing Fee” shall have the meaning attributed to such term in the Backup Servicing Agreement.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Blocked Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit C-2, executed by an Authorized Officer of Company and delivered to Administrative Agent, Collateral Agent, Paying Agent and each Lender, which sets forth the calculation of each of the Class A Borrowing Base and the Class B Borrowing Base, including a calculation of each component thereof.
“Borrowing Base Deficiency” means either a Class A Borrowing Base Deficiency or a Class B Borrowing Base Deficiency, as applicable.
“Borrowing Base Report” means a report substantially in the form of Exhibit C-2, executed by an Authorized Officer of Company and delivered to Administrative Agent, Collateral Agent, Paying Agent and each Lender, which attaches a Borrowing Base Certificate.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in New York are authorized or required by law or other governmental action to close.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (i) as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (ii) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

4
 

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“Cash” means money, currency or a credit balance in any demand, securities account or deposit account; provided, however, that notwithstanding anything to the contrary contained herein, “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of Holdings and its Subsidiaries.
“Cash Equivalents” means, as of any day, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such day; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such day and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one year after such day and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000 and (iii) has the highest rating obtainable from either S&P or Moody’s.
“Certificate Regarding Non‑Bank Status” means a certificate substantially in the form of Exhibit E.
“Change of Control” means, at any time: (a) any “person” or “group” of related persons (as such terms are given meaning in the Exchange Act and the rules of the SEC thereunder) is or becomes the owner, beneficially or of record, directly or indirectly, of more than 35% (on a fully diluted basis) of the economic and voting interests (including the right to elect directors or similar representatives) in the Capital Stock of Holdings; (b) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of Holdings and its Subsidiaries taken as a whole to any “person” (as such term is given meaning in the Exchange Act and the rules of the SEC thereunder); (c) at any time during any consecutive two-year period after December 16, 2014, individuals who at the beginning of such period constituted the board of directors of Holdings (together with any new directors whose election or appointment by the board of directors of Holdings or whose nomination for election by the shareholders of Holdings was approved by a vote of a majority of the directors of Holdings then still in office who were either directors at the beginning of such period or whose election, appointment

5
 

or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of Holdings then in office; or (d) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of Company.
“Charged-Off Receivable” means a Receivable which, in each case, consistent with the Underwriting Policies, has or should have been written off Company’s books as uncollectable.
“Chattel Paper” means any “chattel paper”, as such term is defined in the UCC, including electronic chattel paper, now owned or hereafter acquired by the Company.
“Class” means a class of Revolving Loans hereunder, designated Class A Revolving Loans or Class B Revolving Loans.
“Class A Applicable Margin” means with respect to each Class A Lender Group the “Class A Applicable Margin” described in the Fee Letter between Company and such Class A Lender Group.
“Class A Borrowing Base” means, as of any day, an amount equal to the lesser of:
(a)     (i) the Applicable Class A Advance Rate multiplied by the Adjusted EPOB at such time, plus (ii) the aggregate amount of Collections in the Lockbox Account and the Collection Account to the extent such Collections and other funds have already been applied to reduce the Eligible Portfolio Outstanding Principal Balance minus (iii) 105% of the sum of the Accrued Interest Amount as of such day and the aggregate amount of all accrued and unpaid fees and expenses due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement; and
(b)    the Class A Revolving Commitments on such day.
With respect to any calculation of the Class A Borrowing Base with respect to any Credit Date solely for the purpose of determining Class A Revolving Availability for a requested Class A Revolving Loan, the Class A Borrowing Base will be calculated on a pro forma basis giving effect to the Eligible Receivables to be purchased with the proceeds of such Loan. With respect to any calculation of the Class A Borrowing Base for any other purpose, the Class A Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Collateral Agent and the Administrative Agent, Paying Agent and each Lender with such adjustments as the Paying Agent identifies pursuant to Section 2.21.
“Class A Borrowing Base Deficiency” means, as of any day, the amount, if any, by which the Total Utilization of Class A Revolving Commitments exceeds the Class A Borrowing Base.
“Class A Conduit Lending Limit” means, for any Class A Revolving Conduit Lender, the maximum principal amount of Class A Revolving Loans which may be advanced by such Class A Revolving Conduit Lender as set forth on Appendix A or in the applicable Assignment

6
 

Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof, and as such amount may be modified from time to time by notice from the related Class A Managing Agent to Company and the Administrative Agent.
“Class A Indemnitee” means an Indemnitee who is a Class A Revolving Lender, an Affiliate of a Class A Revolving Lender or an officer, partner, director, trustee, employee or agent of a Class A Revolving Lender.
“Class A Lender Group” means any Class A Managing Agent and its related Class A Revolving Conduit Lenders, if any, and Class A Revolving Committed Lenders.
“Class A Lender Group Limit” means, for any Class A Lender Group, the amount set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof.
“Class A Lender Group Percentage” means, for any Class A Lender Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is the aggregate of the Class A Revolving Commitments of all Class A Revolving Committed Lenders in such Class A Lender Group and the denominator of which is the Class A Revolving Commitments.
“Class A Managing Agent” means, as to any Class A Revolving Conduit Lender or Class A Revolving Committed Lender, the Person listed on Appendix A as the “Class A Managing Agent” for such Lenders, together with its respective successors and permitted assigns.
“Class A Revolving Availability” means, as of any date of determination, the amount, if any, by which the Class A Borrowing Base exceeds the Total Utilization of Class A Revolving Commitments.
“Class A Revolving Committed Lender” means, as to any Class A Lender Group, each of the financial institutions listed on Appendix A as a “Class A Revolving Committed Lender” for such Class A Lender Group, and any other Person that becomes a party hereto as a Class A Revolving Committed Lender pursuant to an Assignment Agreement.
“Class A Revolving Commitment” means the commitment of a Class A Revolving Committed Lender to make or otherwise fund any Class A Revolving Loan and “Class A Revolving Commitments” means such commitments of all Class A Revolving Committed Lenders in the aggregate. The amount of each Class A Revolving Committed Lender’s Class A Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The Class A Revolving Commitment of each Class A Revolving Committed Lender will be equal to zero on the Revolving Commitment Termination Date.
“Class A Revolving Conduit Lender” means collectively, the Persons identified as “Class A Revolving Conduit Lenders” on Appendix A and any other Person that becomes a party hereto as a Class A Revolving Conduit Lender pursuant to an Assignment Agreement

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“Class A Revolving Exposure” means, with respect to any Class A Lender Group, as of any date of determination, (a) prior to the termination of the Class A Revolving Commitments, the sum of the Class A Revolving Commitments of the Class A Revolving Committed Lenders in such Class A Lender Group; and (b) after the termination of the Class A Revolving Commitments, the aggregate outstanding principal amount of the Class A Revolving Loans owing to the Class A Revolving Committed Lenders and the Class A Revolving Conduit Lenders in such Class A Lender Group.
“Class A Revolving Lender” means each Class A Revolving Committed Lender and each Class A Revolving Conduit Lender.
“Class A Revolving Loan” means a Loan made by a Class A Revolving Lender to Company pursuant to Section 2.1.
“Class A Revolving Loan Note” means a promissory note in the form of Exhibit B-1 hereto, as it may be amended, supplemented or otherwise modified from time to time.
“Class B Agent” as defined in Section 8.1.
“Class B Applicable Margin” means with respect to each Class B Revolving Lender the “Class B Applicable Margin” described in any Fee Letter between Company and such Class B Revolving Lender.
“Class B Borrowing Base” means, as of any day, an amount equal to the lesser of:
(a)    (i) the Applicable Class B Advance Rate multiplied by the Adjusted EPOB at such time, plus (ii) the aggregate amount of Collections in the Lockbox Account and the Collection Account to the extent such Collections and other funds have already been applied to reduce the Eligible Portfolio Outstanding Principal Balance, minus (iii) 105% of the sum of the Accrued Interest Amount as of such day and the aggregate amount of all accrued and unpaid fees and expenses due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement, minus (iv) the aggregate outstanding principal amount of the Class A Revolving Loans as of such date; and
(b)    the Class B Revolving Commitments on such day.
With respect to any calculation of the Class B Borrowing Base with respect to any Credit Date solely for the purpose of determining Class B Revolving Availability for a requested Class B Revolving Loan, the Class B Borrowing Base will be calculated on a pro forma basis giving effect to the Eligible Receivables to be purchased with the proceeds of such Loan. With respect to any calculation of the Class B Borrowing Base for any other purpose, the Class B Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Collateral Agent, the Administrative Agent, Paying Agent and each Lender, as adjusted to reflect any adjustments identified by the Paying Agent pursuant to Section 2.21.

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“Class B Borrowing Base Deficiency” means, as of any day, the amount, if any, by which the Total Utilization of Class B Revolving Commitments exceeds the Class B Borrowing Base.
“Class B Indemnitee” means an Indemnitee who is a Class B Revolving Lender, an Affiliate of a Class B Revolving Lender or an officer, partner, director, trustee, employee or agent of a Class B Revolving Lender.
“Class B Revolving Availability” means, as of any date of determination, the amount, if any, by which the Class B Borrowing Base exceeds the Total Utilization of Class B Revolving Commitments.
“Class B Revolving Commitment” means the commitment of a Class B Revolving Lender to make or otherwise fund any Class B Revolving Loan and "Class B Revolving Commitments" means such commitments of all Class B Revolving Lenders in the aggregate. The amount of each Class B Revolving Lender’s Class B Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Class B Revolving Commitments as of the Amendment Effective Date is $12,353,000. The Class B Revolving Commitment of each Class B Revolving Lender will be equal to zero on the Revolving Commitment Termination Date.
“Class B Revolving Exposure” means, with respect to any Class B Revolving Lender as of any date of determination, (i) prior to the termination of the Class B Revolving Commitments, that Lender’s Class B Revolving Commitment; and (ii) after the termination of the Class B Revolving Commitments, the aggregate outstanding principal amount of the Class B Revolving Loans of that Lender.
“Class B Revolving Lender” means each financial institution listed on the signature pages hereto as a Class B Revolving Lender, and any other Person that becomes a party hereto as a Class B Revolving Lender pursuant to an Assignment Agreement.
“Class B Revolving Loan” means a Loan made by a Class B Revolving Lender to Company pursuant to Section 2.1.
“Class B Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be amended, supplemented or otherwise modified from time to time.
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Agent” as defined in the preamble hereto.
“Collateral Assignment” means that certain Collateral Assignment dated as of August 16, 2013 by Company for the benefit of the Collateral Agent on behalf of the Secured Parties.

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“Collateral Documents” means the Security Agreement, the Control Agreements, the Collateral Assignment and all other instruments, documents and agreements delivered by, or on behalf or at the request of, Company or Holdings pursuant to this Agreement or any of the other Credit Documents, as the case may be, in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of Company as security for the Obligations or to protect or preserve the interests of Collateral Agent or the Secured Parties therein.
“Collateral Receipt and Exception Report” shall mean the “Trust Receipt” as defined in the Custodial Agreement.
“Collection Account” means a Securities Account with account number OD1301.1 at Deutsche Bank Trust Company Americas in the name of Company.
“Collections” means, with respect to each Pledged Receivable, any and all cash collections and other cash proceeds of such Pledged Receivable (whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment), including, without limitation, all prepayments, all overdue payments, all prepayment penalties and early termination penalties, all finance charges, if any, all amounts collected as interest, fees (including, without limitation, any servicing fees, any origination fees, any loan guaranty fees and, any platform fees), or charges for late payments with respect to such Pledged Receivable, all recoveries with respect to each Charged-Off Receivable (net of amounts, if any, retained by any third party collection agent), all investment proceeds and other investment earnings (net of losses and investment expenses) on Collections as a result of the investment thereof pursuant to Section 6.7, all proceeds of any sale, transfer or other disposition of any Pledged Receivable by Company and all deposits, payments or recoveries made in respect of any Pledged Receivable to any Controlled Account, or received by Company in respect of a Pledged Receivable, and all payments representing a disposition of any Pledged Receivable.
“Commercial Paper” means the short term promissory notes issued by a Class A Revolving Conduit Lender in the commercial paper market.
“Committed Lender Pro Rata Share” means, with respect to any Class A Revolving Committed Lender in any Class A Lender Group, the Class A Revolving Commitment of such Class A Revolving Committed Lender at such time, divided by the aggregate amount of the Class A Revolving Commitments of all Class A Revolving Committed Lenders in such Class A Lender Group at such time.
“Company” as defined in the preamble hereto.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C-1.
“Compliance Review” as defined in Section 5.5(b).
“Consolidated Liquidity” means, as of any date of determination, an amount determined for Holdings and its Subsidiaries, on a consolidated basis, equal to the sum of (i)

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unrestricted Cash and Cash Equivalents of Holdings and its Subsidiaries, as of such date, plus, (ii) amounts (if any) in the Reserve Account as of such date, plus (iii) the sum of the Class A Revolving Availability and the Class B Revolving Availability as of such date of determination, plus (iv) the aggregate amount of all unused and available credit commitments under any credit facilities of Holdings and its Subsidiaries, as of such date; provided, as of such date, all of the conditions to funding such amounts under clause (iii) and (iv), as the case may be, have been fully satisfied (other than delivery of prior notice of funding and pre-funding notices, opinions and certificates that are reasonably capable of delivery as of such date) and no lender under such credit facilities shall have refused to make a loan or other advance thereunder at any time after a request for a loan was made thereunder.
“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated basis in accordance with GAAP, including all accrued and unpaid interest on the foregoing, provided, that accounts payable, accrued expenses, liabilities for leasehold improvements and deferred revenue of Holdings and its Subsidiaries shall not be included in any determination of Consolidated Total Debt.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Control Agreements” means collectively, the Lockbox Account Control Agreement, the Securities Account Control Agreement and the Blocked Account Control Agreement.
“Controlled Account” means each of the Reserve Account, the Collection Account and the Lockbox Account, and the “Controlled Accounts” means all of such accounts.
“Controlled Account Bank” means Deutsche Bank Trust Company Americas.
“Convertible Indebtedness” means any Indebtedness of Holdings that (a) is convertible to equity, including convertible preferred stock, (b) requires no payment of principal thereof or interest thereon and (c) is fully subordinated to all indebtedness for borrowed money of Holdings, as to right and time of payment and as to any other rights and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such indebtedness for borrowed money.
“Cost of Funds Rate” means, with respect to any Class A Revolving Loan on any day, the Alternative Rate.
“CP Rate” means, with respect to any Class A Revolving Conduit Lender on any day, the per annum rate equivalent to the weighted average cost (as reasonably determined by the related Managing Agent, and which shall include (without duplication), the fees and commissions

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of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Class A Revolving Conduit Lender, other borrowings by such Class A Revolving Conduit Lender and any other costs associated with the issuance of Commercial Paper) to the extent related to the issuance of Commercial Paper that is allocated, in whole or in part, by such Class A Revolving Conduit Lender or its related Managing Agent to fund or maintain a Class A Revolving Loan (or portion thereof) on such day; provided, however, that if any component of any such rate is a discount rate, in calculating the “CP Rate” for such day, the related Managing Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
“Credit Card Issuer” means a member of Visa, MasterCard, American Express, Discover and PayPal.
“Credit Card Payment” means an amount owing by Credit Card Issuer to a Receivables Obligor (i) in respect of a purchase made by a customer of such Receivables Obligor, (ii) paid for using a credit card issued by such Credit Card Issuer, and (iii) that is required by the applicable Transfer Account Loan Documentation to be deposited into a Transfer Account.
“Credit Date” means the date of a Credit Extension.
“Credit Document” means any of this Agreement, the Revolving Loan Notes, if any, the Collateral Documents, the Fee Letters, the Asset Purchase Agreement, the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement, the Undertakings Agreement and all other documents, instruments or agreements executed and delivered by Company or Holdings for the benefit of any Agent or any Lender in connection herewith.
“Credit Document Amendments” as defined in Section 3.2(a).
“Credit Extension” means the making of a Loan.
“CRR” means Articles 404-410 of The European Union Capital Requirements Regulation (Regulation (EU) No 575/2013), as amended.
“Cumulative Defaults” means, with respect to any Vintage Pool as of the end of any Monthly Period, the sum for all Receivables in such Vintage Pool that became Defaulted Receivables of the Outstanding Principal Balances thereof determined as of the date on which they became Defaulted Receivables less any Collections received on such Defaulted Receivables from and after the date on which they became Defaulted Receivables (measured for the period commencing from the origination of each such Receivable to the end of such Monthly Period).
“Cumulative Static Pool Default Ratio” means, the percentage equivalent of a fraction (i) the numerator of which is the aggregate Cumulative Defaults in respect of any Vintage Pool as of the last day of the most recently ended Monthly Period and (ii) the denominator of which is, for any Vintage Pool, the aggregate original Outstanding Principal Balance of all Receivables comprising such Vintage Pool.

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“Custodial Agreement” mean the Custodial Services Agreement, dated as of the Original Closing Date, by and between Company, Servicer, Custodian and Collateral Agent, as it may be amended, supplemented or otherwise modified from time to time.
“Custodian” means Deutsche Bank Trust Company Americas, in its capacity as the provider of services under the Custodial Agreement, or any successor thereto in such capacity appointed in accordance with the Custodial Agreement, and approved by the Requisite Lenders.
“Daily Pay Receivable” means any Receivable for which a Payment is generally due on every business day.
“DBSI” as defined in the preamble hereto.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all Lenders of the applicable Class (calculated as if all Defaulting Lenders of such Class (other than such Defaulting Lender) had funded all of their respective Defaulted Loans of such Class) over the aggregate outstanding principal amount of all Loans of such Class of such Defaulting Lender.
“Default Interest Rate” as defined in Section 2.6.
“Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default, and ending on the earliest of the following dates: (i) the date on which all Revolving Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non‑pro rata application of any payments of the Loans in accordance with the terms of this Agreement), and (b) such Defaulting Lender shall have delivered to Company and Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder with respect to its Revolving Commitments, and (iii) the date on which Company, Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.
“Defaulted Loan” as defined in Section 2.18.
“Defaulted Receivable” means, with respect to any date of determination, a Receivable which (i) is a Charged-Off Receivable or (ii) has a Missed Payment Factor of (x) in the

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case of a Daily Pay Receivable, sixty (60) or higher or (y) in the case of a Weekly Pay Receivable, twelve (12) or higher.
“Defaulting Lender” as defined in Section 2.18.
“Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (that are not Charged-Off Receivables) that are Pledged Receivables as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.
“Delinquent Receivable” means, as of any date of determination, any Receivable with a Missed Payment Factor of one (1) or higher as of such date.
“Deposit Account” means a “deposit account” (as defined in the UCC), including a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Designated Officer” means, with respect to Company, any Person with the title of Chief Executive Officer, Chief Financial Officer or General Counsel.
“Determination Date” means the last day of each Monthly Period.
“Deutsche Bank Class A Lender Group” means the Deutsche Bank Class A Lender Group set forth on Appendix A.
“Direct Competitor” means (a) each Person that is listed on the “List of Direct Competitors” provided to the Paying Agent by the Company on or prior to the First Amendment Effective Date, as such list may be updated by the Company from time to time by written notice from the Company to the Paying Agent after the First Amendment Effective Date identifying one or more Persons engaged in the same or similar line of business as Holdings (each Person described in this clause (a), a “Listed Competitor”), and (b) (i) any clearly identifiable Affiliate of any Listed Competitor on the basis of such Affiliate’s name or (ii) any Affiliate of any Listed Competitor which the Company, either before or after its receipt of notification of a proposed assignment to such Affiliate, has identified in writing to the Paying Agent as an Affiliate of a Listed Competitor, provided that Portfolio Financial Servicing Company shall not be deemed a Direct Competitor while it is the Backup Servicer.
“Document Checklist” shall have the meaning attributed to such term in the Custodial Agreement.
“Documentation Agent” as defined in the preamble hereto.
“Dollars” and the sign “$” mean the lawful money of the United States.

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“E-Sign Receivable” means any Receivable for which the signature or record of agreement of the Receivables Obligor is obtained through the use and capture of electronic signatures, click-through consents or other electronically recorded assents.
“Early Termination Fee” means a fee payable in connection with any reduction or termination of any Revolving Commitments (other than any termination pursuant to Section 7.1) on or prior to August 16, 2016 in an amount equal to the projected income generated by the Class A Applicable Margin or Class B Applicable Margin, as applicable, and fees the Class A Revolving Lenders or Class B Revolving Lenders, as applicable, expected to earn pursuant to this Agreement, but which they will not earn as a result of such reduction or termination during the period from and including the date of such reduction or termination to the Revolving Commitment Termination Date as reasonably determined by the Class A Revolving Lenders or the Class B Revolving Lenders, as applicable, and based on the assumptions that the Revolving Commitments during such period were equal to the Revolving Commitments at the time of such termination and those Revolving Commitments were fully utilized during such period. Notwithstanding the foregoing, in connection with any reduction or termination of any Class B Revolving Commitments made on a pro rata basis with any reduction or termination of the Class A Revolving Commitments, the “Early Termination Fee” in respect of such reduced or terminated Class B Revolving Commitments shall be $0.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (i) any Lender or any Lender Affiliate (other than a natural person), and (ii) any other Person (other than a natural Person) approved by Company, so long as no Default or Event of Default has occurred and is continuing, and Administrative Agent (each such approval not to be unreasonably withheld, it being understood that any failure to approve any assignment to a Direct Competitor shall be deemed reasonable); provided, that (y) neither Holdings nor any Affiliate of Holdings shall, in any event, be an Eligible Assignee, and (z) no Direct Competitor shall be an Eligible Assignee so long as no Specified Event of Default has occurred and is continuing.
“Eligible Portfolio Outstanding Principal Balance” means, as of any date of determination, the sum of the Outstanding Principal Balance for all Eligible Receivables as of such date.

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“Eligible Receivable” means a Receivable with respect to which the Eligibility Criteria are satisfied as of the applicable date of determination.
“Eligible Receivables Obligor” means a Receivables Obligor that satisfies the criteria specified in Appendix C hereto under the definition of “Eligible Receivables Obligor”, subject to any changes agreed to by each of the Requisite Class A Lenders, the Requisite Class B Revolving Lenders and Company from time to time after the Amendment Effective Date.
“Eligibility Criteria” means the criteria specified in Appendix C hereto under the definition of “Eligibility Criteria”, subject to any changes agreed to by each of the Requisite Class A Lenders, the Requisite Class B Revolving Lenders and Company from time to time after the Amendment Effective Date.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended to the date hereof and from time to time hereafter, and any successor statute.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of a Person shall continue to be considered an ERISA Affiliate of such Person within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person and with respect to liabilities arising after such period, but only to the extent that such Person could be liable under the Internal Revenue Code or ERISA as a result of its relationship with such former ERISA Affiliate.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty (30) day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Holdings,

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any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on Holdings, any of its Subsidiaries or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan of Holdings, any of its Subsidiaries, or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates, or the assets thereof, or against Holdings, any of its Subsidiaries or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Event of Default” means each of the events set forth in Section 7.1.
“Excess Concentration Amounts” means the amounts set forth on Appendix D hereto.
“Excess Spread” means, for any Monthly Period, the product of (a) 12 times (b) the percentage equivalent of a fraction (i) the numerator of which is the excess, if any, of (x) the Adjusted Interest Collections for such Monthly Period over (y) the aggregate Outstanding Principal Balance of all Pledged Receivables that became Defaulted Receivables during such Monthly Period and (ii) the denominator of which is the average daily Outstanding Principal Balance of Pledged Receivables for such Monthly Period.

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“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Taxes” means, with respect to any Affected Party, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Affected Party being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes with respect to such Affected Party, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Affected Party with respect to an applicable interest in a Revolving Loan or Revolving Commitment pursuant to a law in effect on the date on which (i) such Affected Party became an Affected Party or (ii) such Affected Party changes its lending office, except in each case to the extent that, pursuant to Section 2.16(b), amounts with respect to such Taxes were payable either to such Affected Party's assignor immediately before such Affected Party became an Affected Party or to such Affected Party immediately before it changed its lending office, and (c) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Asset Purchase Agreement” means that certain Amended and Restated Asset Purchase Agreement dated as of the First Amendment Effective Date, by and between Company, as Purchaser, and the Seller, whereby the Seller agreed to sell and Company agreed to purchase Eligible Receivables from time to time.
“Existing Credit Agreement” as defined in the Recitals hereto.
“Existing Credit Documents” as defined in Section 1.4.
“Existing Obligations” as defined in Section 1.4.
“Face Amount” means in relation to any Commercial Paper (i) if issued on a discount basis, the face amount stated therein and (ii) if issued on an interest-bearing basis, the principal amount stated therein plus the amount of all interest accrued or to accrue thereon on or prior to its stated maturity date.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, as of the date of this agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), and any current or future regulations promulgated thereunder or official interpretations thereof.
“Fee Letters” means (i) the letter agreement dated as of the First Amendment Effective Date between the Company and DBSI, (ii) the letter agreement dated as of the Amendment Effective Date between the Company and the Class A Lender Group party thereto, (iii) the letter agreement dated as of the Original Closing Date between the Company and the Paying Agent, and (iv) the letter agreement dated as of the Amendment Effective Date between the Company and any Class B Revolving Lender (or agent thereof) a party thereto.

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“Financial Covenants” means the financial covenants set forth on Schedule 1.1-B hereto.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer (or the equivalent thereof) of Holdings that such financial statements fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year‑end adjustments.
“First Amendment Effective Date” means September 15, 2014.
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is perfected and is the only Lien to which such Collateral is subject.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
“Funded Indebtedness” means any secured Indebtedness incurred by a Subsidiary of Holdings from time to time to finance (in whole or in part) a portfolio of Receivables.
“Funding Default” as defined in Section 2.18.
“Funding Account” has the meaning set forth in Section 2.11(a).
“Funding Notice” means a notice substantially in the form of Exhibit A‑1.
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable

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laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Historical Financial Statements” means as of the Amendment Effective Date, (i) the audited financial statements of Holdings and its Subsidiaries, for the Fiscal Year ended 2015, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Year, and (ii) the unaudited financial statements of Holdings and its Subsidiaries for the Fiscal Quarter ended March 31, 2016, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for each such Fiscal Quarter, in the case of clauses (i) and (ii), certified by the chief financial officer (or the equivalent thereof) of Holdings that they fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments.
“Holdings” means On Deck Capital, Inc., a Delaware corporation.
“Hot Backup Servicer Event” has the meaning set forth in the Backup Servicing Agreement.
“Hot Backup Servicer Event Cure” has the meaning set forth in the Backup Servicing Agreement.
“Increased‑Cost Lenders” as defined in Section 2.19.
“Indebtedness” as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding trade payables incurred in the ordinary course of business that are unsecured and not overdue by more than six (6) months unless being contested in good faith and any such obligations incurred under ERISA); (v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co‑making, discounting with recourse or sale with recourse by such Person of the obligation of another; (viii) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (ix) any liability of such Person for an obligation of another through any Contractual Obligation (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain

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the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as described in clause (viii) above; and (x) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses and disbursements of any kind or nature whatsoever (excluding any amounts not otherwise payable by Company under Section 2.16(b)(iii) but including the reasonable and documented fees and disbursements of one (1) counsel for Class A Indemnitees and one counsel for Class B Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any reasonable and documented fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Agreement or the other Credit Documents, any Related Agreement, or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral)).
“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company under any Credit Document.
“Indemnitee” as defined in Section 9.3.
“Indemnitee Agent Party” as defined in Section 8.6(b).
“Independent Manager” as defined in Section 6.15.

“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.
“Interest Payment Date” means the fifteenth calendar day after the end of each Monthly Period, and if such date is not a Business Day, the next succeeding Business Day.
“Interest Period” means an interest period (i) initially, commencing on and including the Original Closing Date and ending on but excluding the initial Interest Payment Date; and (ii) thereafter, commencing on and including each Interest Payment Date and ending on and excluding the immediately succeeding Interest Payment Date; provided, that no Interest Period with

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respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is four (4) Business Days prior to each Interest Payment Date.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Investment” means (i) any direct or indirect purchase or other acquisition by Company of, or of a beneficial interest in, any of the Securities of any other Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, from any Person, of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Company to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write‑ups, write‑downs or write‑offs with respect to such Investment.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Lender” means each Class A Revolving Lender and each Class B Revolving Lender.
“Lender Affiliate” means, as applied to any Lender or Agent, any Related Fund and any Person directly or indirectly controlling (including any member of senior management of such Person), controlled by, or under common control with, such Lender or Agent. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
“Leverage Ratio” means the ratio as of any day of (a) Consolidated Total Debt, excluding Subordinated Debt and Convertible Indebtedness, as of such day, to (b) the sum of (i) Holdings’ total stockholders’ equity as of such day, (ii) Warranty Liability as of such day and (iii) the sum of Subordinated Debt and Convertible Indebtedness as of such day.
“LIBO Rate” means, for any Loan (or portion thereof) for any Interest Period, the rate per annum determined by the Paying Agent at approximately 11:00 a.m., London time, on the second Business Day before the first day of such Interest Period by reference to the British Bankers’

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Association Interest Settlement Rate (or any successor thereto) for deposits in dollars for a period of one month (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Paying Agent in its sole discretion); provided, that if such rate is not available at such time for any reason, then the “LIBO Rate” shall be the rate per annum equal to the average (rounded upward to the nearest 1/16th of 1%) of the respective rates notified to the Paying Agent by Deutsche Bank AG as the rate at which Deutsche Bank AG offers deposits in Dollars at or about 10:00 a.m., New York City time, two Business Days prior to the beginning of the related Interest Period, in the interbank eurocurrency market where the eurocurrency and foreign currency and exchange operations in respect of its Eurodollar loans are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the applicable amount of the outstanding principal balance to be accruing interest at the LIBO Rate during such Interest Period.
“LIBO Rate Reserve Percentage” means, for any Interest Period in respect of which interest is computed by reference to the LIBO Rate, the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) (or if more than one such percentage shall be applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Liabilities is determined) having a term approximating such Interest Period.
“LIBOR Disruption Event” means, with respect to any Interest Period, any of the following: (i) a determination by any Lender or any Liquidity Provider that it would be contrary to law or to the directive of any central bank or other governmental authority (whether or not having the force of law) to obtain dollars in the London interbank market to make, fund or maintain Loans during such Interest Period, (ii) the failure of the source listed in the definition of “LIBO Rate” to publish a London interbank offered rate as of 11:00 a.m. on the second Business Day prior to the first day of such Interest Period, together with the failure of Deutsche Bank AG to provide notice of an alternate rate (each as contemplated in such definition), (iii) a determination by any Lender or Liquidity Provider that the rate at which deposits of United States dollars are being offered in the London interbank market does not accurately reflect the cost to such Person of making, funding or maintaining its Loans for such Interest Period or (iv) the inability of such Lender or Liquidity Provider, because of market events not under the control of such Person, to obtain United States dollars in the London interbank market to make, fund or maintain its Loans for such Interest Period.
“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.

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“Limited Liability Company Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, dated as of the Original Closing Date, as it may be amended, restated or otherwise modified from time to time in accordance with Section 6.16.
“Liquidation Fees” means, in the event of any prepayment of a Revolving Loan pursuant to Section 2.11(c)(vii)(B) owing to a Class A Revolving Lender or a Class B Revolving Lender, as applicable, and for the Interest Period during which such Revolving Loan was prepaid, the amount, if any, by which (i) interest would have accrued at the Cost of Funds Rate, with respect to any Class A Revolving Loan that was so prepaid, or the Alternative Rate, with respect to any Class B Revolving Loan that was so prepaid, for each day during such Interest Period on the reduction of the principal amount of such Revolving Loan during such Interest Period had such reduction not occurred, exceeds (ii) the positive income, if any, received by such Class A Revolving Lender or Class B Revolving Lender, as applicable, from the investment of the proceeds of such reduction. A certificate as to the amount of any Liquidation Fee (including the computation of such amount) shall be submitted by the Class A Managing Agent on behalf of the affected Class A Revolving Lender, or the Class B Agent on behalf of the affected Class B Revolving Lender, as applicable, to Company and Paying Agent and shall be conclusive and binding for all purposes, absent manifest error.
“Liquidity Agreement” means a liquidity loan agreement, asset purchase agreement or similar agreement entered into by a Class A Revolving Conduit Lender with a group of financial institutions in connection with this Agreement.
“Liquidity Provider” means any of the financial institutions from time to time party to any Liquidity Agreement with a Class A Revolving Conduit Lender.
“Loan” means a Revolving Loan.
“Lockbox Account” means a Deposit Account with account number 1830012203 at MB Financial Bank, N.A. in the name of Company.
“Lockbox Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Lockbox System” as defined in Section 2.11(c).
“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Marketplace Receivables” means, with respect to any Fiscal Quarter, any Receivables sold by Holdings to one or more non-Affiliated purchasers during such Fiscal Quarter pursuant to a whole loan sale agreement or a similar agreement.
“Master Record” as defined in the Custodial Agreement.

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“Material Adverse Effect” means a material adverse effect on: (i) the business, operations, properties, assets, financial condition or results of operations of Company or Holdings; (ii) the ability of Company to pay any Obligations or Company or Holdings to fully and timely perform, in any material respect, its obligations under any Credit Document; (iii) the legality, validity, binding effect, or enforceability against Company or Holdings of any Credit Document to which it is a party; (iv) the existence, perfection, priority or enforceability of any security interest in the Pledged Receivables; (v) the validity, collectability, or enforceability of the Pledged Receivables taken as a whole or in any material part, or (vi) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.
“Material Change Notice” has the meaning set forth in Section 6.17.
“Material Contract” means any contract or other arrangement to which Company is a party (other than the Credit Documents or the Related Agreements) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.
“Material Modification” means, with respect to any Receivable, a reduction in the interest rate, an extension of the term, a reduction in, or change in frequency of, any required Payment or extension of a Payment Date (other than a temporary modification made in accordance with the Underwriting Policies) or a reduction in the Outstanding Principal Balance.
“Material Underwriting Policy Change” means any change or modification to the Underwriting Policies, if such change or modification could reasonably be expected to be adverse to Lenders or the Collateral, provided that any change or modification to the Underwriting Policies relating solely to the addition or modification of a Receivable product type introduced after the Original Closing Date (each, a “New Product”) shall not be deemed to be a Material Underwriting Policy Change unless and until, during any Monthly Period, the aggregate origination by Holdings of New Products exceeds (on a funded basis) the aggregate origination by Holdings of all Receivable products (at which point any such change or modification shall be deemed to be a Material Underwriting Policy Change). Notwithstanding the foregoing, any New Product shall no longer be considered a New Product for purposes of this definition subsequent to the time such New Product is generally (subject to the terms and conditions set forth herein) able to be financed hereunder or under another credit facility provided by the Administrative Agent or its affiliates.
“Materials” as defined in Section 5.5(b).
“Maximum 15 Day Delinquency Rate” means, with respect to any Monthly Period, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (other than Charged-Off Receivables) that are Pledged Receivables that have a Missed Payment Factor of (i) with respect to Daily Pay Receivables, fifteen (15) or higher, and (ii) with respect to Weekly Pay Receivables, three (3) or higher, in each case, as of the last day of such Monthly Period and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period.

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“Maximum Delinquency Rate” means, with respect to any Monthly Period, the percentage equivalent of a fraction (i) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period and (ii) the denominator of which is the aggregate Outstanding Principal Balance of all Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period.
“Maximum Upfront Fee” means, with respect to each Receivable, the greater of (a) $695 and (b) 3.5% of the original aggregate unpaid principal balance of such Receivable.
“Minimum Retained Membership Interest” has the meaning assigned to such term in Section 5.10(a).
“Missed Payment Factor” means, in respect of any Receivable, an amount equal to the sum of (a) the amount equal to (i) the total past due amount of Payments in respect of such Receivable, divided by (ii) the required periodic Payment in respect of such Receivable as set forth in the related Receivable Agreement, determined without giving effect to any temporary modifications of such required periodic Payment then applicable to such Receivable as described in the definition of “Material Modification”, and (b) the number of Payment Dates, if any, past the Receivable maturity date on which a Payment was due but not received.
“Monthly Period” means the period from and including the first day of a calendar month to and including the last day of such calendar month.
“Monthly Reporting Date” means the third Business Day prior to each Interest Payment Date.
“Monthly Servicing Report” shall have the meaning attributed to such term in the Servicing Agreement.
“Moody’s” means Moody’s Investor Services, Inc.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
“Net Asset Sale Proceeds” means, with respect to any Permitted Asset Sale, an amount equal to: (i) Cash payments received by, or on behalf of, Company from such Permitted Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Permitted Asset Sale to the extent paid or payable to non-Affiliates, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Permitted Asset Sale during the tax period the sale occurs and (b) a reasonable reserve for any recourse for a breach of the representations and warranties made by Company to the purchaser in connection with such Permitted

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Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.
“Net Cash Proceeds” shall mean with respect to any equity issuance, the cash proceeds thereof, net of all taxes and reasonable investment banker’s fees, underwriting discounts or commissions, reasonable legal fees and other reasonable costs and other expenses incurred in connection therewith.
“New Product” has the meaning set forth in the definition of “Material Underwriting Policy Change.”
“Non-Consenting Lender” as defined in Section 2.19.
“Non‑US Lender” as defined in Section 2.16(e)(i).
“Notice of Amendment” as defined in Section 6.18.
“Obligations” means all obligations of every nature of Company from time to time owed to the Agents (including former Agents), the Lenders or any of them, in each case under any Credit Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Company, would have accrued on any Obligation, whether or not a claim is allowed against Company for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.
“On Deck Score” means that numerical value that represents Holdings’ evaluation of the creditworthiness of a business and its likelihood of default on a commercial loan or other similar credit arrangement generated by “version 5” of the proprietary methodology developed and maintained by Holdings, as such methodology is applied in accordance with the other aspects of the Underwriting Policies, and as such methodology and other aspects of the Underwriting Policies may be revised and updated from time to time in accordance with Section 6.17.
“Online Document Checklist” shall have the meaning attributed to such term in the Custodial Agreement.
“Online Product” or “On Deck Online” means any Receivable underwritten by Holdings regarding which Holdings did not review data from either the operating checking account or merchant processing data of the applicable Receivables Obligor prior to the funding of such Receivable.
“Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by‑laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization or certificate of formation, as amended, and its operating agreement, as amended, including, in the case of Company, the Limited Liability Company Agreement. In the event any

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term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Original Borrowing Base Certificate” has the meaning set forth in Section 2.1(d)(ii).
“Original Closing Date” means August 16, 2013.
“Original Credit Agreement” means that certain Credit Agreement, dated as of the Original Closing Date (as amended by that certain First Amendment thereto dated as of November 14, 2013, that certain Second Amendment thereto dated as of April 7, 2014 and that certain Third Amendment thereto dated as of July 2, 2014), by and among the Company, the Lenders party hereto, the Administrative Agent, the Collateral Agent, the Paying Agent, DBSI, the Syndication Agent and the Documentation Agent.
“Original Servicing Agreement” means that certain Servicing Agreement dated as of the Original Closing Date between Company, Holdings and the Administrative Agent.
“Other Connection Taxes” means, with respect to any Affected Party, Taxes imposed as a result of a present or former connection between such Affected Party and the jurisdiction imposing such Tax (other than connections arising from such Affected Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Revolving Loan or Credit Document).
“Outstanding Principal Balance” means, as of any date with respect to any Receivable, the unpaid principal balance of such Receivable as set forth on the Servicer’s books and records as of the close of business on the immediately preceding Business Day; provided, however, that the Outstanding Principal Balance of any Pledged Receivable that has become a Charged-Off Loan will be zero.
“Participant Register” as defined in Section 9.6(h).
“Paying Agent” as defined in the preamble hereto.
“Payment” means, with respect to any Receivable, the required scheduled loan payment in respect of such Receivable, as set forth in the applicable Receivable Agreement.
“Payment Dates” means, with respect to any Receivable, the date a payment is due in accordance with the Receivable Agreement with respect to such Receivable as in effect as of the date of determination.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

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“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted Asset Sale” means so long as all Net Asset Sale Proceeds are contemporaneously remitted to the Collection Account, (a) the sale by Company of Receivables to Holdings pursuant to any repurchase obligations of Holdings under the Asset Purchase Agreement, (b) the sale by the Servicer on behalf of Company of Charged-Off Receivables to any third party in accordance with the Servicing Standard, provided, that such sales are made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title and absence of liens on the Charged-Off Receivables, and the status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale), (c) the sale by Company of Receivables (x) to Holdings who immediately thereafter sells such Receivables to a special-purpose Subsidiary of Holdings or (y) directly to a special-purpose Subsidiary of Holdings, in either case in connection with a term securitization transaction involving the issuance of securities rated at least investment grade by one or more nationally recognized statistical rating organizations and such Receivables and special-purpose Subsidiary so long as, in either case, (i) the amount received by Company therefore and deposited into the Collection Account is no less than the aggregate Outstanding Principal Balances of such Receivables, (ii) such sale is made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title, absence of liens on the Receivables, status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale), (iii) the manner in which such Receivables were selected by Company does not adversely affect the Lenders, (iv) the agreement pursuant to which such Receivables were sold to Holdings or such special-purpose Subsidiary, as the case may be, contains an obligation on the part of Holdings or such special-purpose Subsidiary to not file or join in filing any involuntary bankruptcy petition against Company prior to the end of the period that is one year and one day after the payment in full of all Obligations of Company under this Agreement and not to cooperate with or encourage others to file involuntary bankruptcy petitions against Company during the same period, and (v) unless otherwise waived by the Requisite Lenders in accordance with this Agreement, on the Business Day prior to such sale, (A) the Pro Forma 15 Day Delinquency Percentage shall not be greater than the 15 Day Delinquency Percentage, before giving effect to such sale, and (B) the Pro Forma Delinquency Percentage shall not be greater than the Delinquency Percentage, before giving effect to such sale, and (d) the sale by the Company of Receivables with the prior written consent of the Requisite Lenders.
“Permitted Commitment Reduction” means any permanent reduction by the Company of Class A Revolving Commitments after the Amendment Effective Date in an aggregate amount of up to 33.33% of the Class A Revolving Commitments in effect on the Amendment Effective Date.
“Permitted Discretion” means, with respect to any Person, a determination or judgment made by such Person in good faith in the exercise of reasonable (from the perspective of a secured lender) credit or business judgment.
“Permitted Investments” means the following, subject to qualifications hereinafter set forth: (i) obligations of, or obligations guaranteed as to principal and interest by, the U.S.

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government or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States of America; (ii) federal funds, unsecured certificates of deposit, time deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 365 days of any bank, the short-term debt obligations of which are rated A-1+ (or the equivalent) by each of the rating agencies and, if it has a term in excess of three months, the long-term debt obligations of which are rated AAA (or the equivalent) by each of the Moody’s and S&P; (iii) deposits that are fully insured by the Federal Deposit Insurance Corp. (FDIC); (iv) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (i) through (iii) above; and (v) such other investments as to which the Administrative Agent consent in its sole discretion.
Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the S&P’s “r” symbol (or any other rating agency’s corresponding symbol) attached to the rating (indicating high volatility or dramatic fluctuations in their expected returns because of market risk), as well as any mortgage-backed securities and any security of the type commonly known as “strips”; (ii) shall not have maturities in excess of one year; (iii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; and (iv) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made which requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase or (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.
“Permitted Liens” means Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
“Pledged Receivables” shall have the meaning attributed to such term in the Servicing Agreement.
“Portfolio” means the Receivables purchased by Company from Holdings pursuant to the Asset Purchase Agreement.
“Portfolio Performance Covenant” means the portfolio performance covenants specified in Appendix E.
“Portfolio Weighted Average Receivable Yield” means as of any date of determination, the quotient, expressed as a percentage, obtained by dividing (a) the sum, for all

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Eligible Receivables, of the product of (i) the Receivable Yield for each such Receivable multiplied by (ii) the Outstanding Principal Balance of such Receivable as of such date, by (b) the Eligible Portfolio Outstanding Principal Balance as of such date.
“Prime Rate” means, as of any day, the rate of interest per annum equal to the prime rate publicly announced by the majority of the eleven largest commercial banks chartered under United States Federal or State banking law as its prime rate (or similar base rate) in effect at its principal office. The determination of such eleven largest commercial banks shall be based upon deposits as of the prior year-end, as reported in the American Banker or such other source as may be reasonably selected by the Paying Agent.
“Principal Office” means, for Administrative Agent, Administrative Agent’s “Principal Office” as set forth on Appendix B, or such other office as Administrative Agent may from time to time designate in writing to Company and each Lender; provided, however, that for the purpose of making any payment on the Obligations or any other amount due hereunder or any other Credit Document, the Principal Office of Administrative Agent shall be 60 Wall Street, 3rd Floor, New York, New York 10005 (or such other location within the City and State of New York as Administrative Agent may from time to time designate in writing to Company and each Lender).
“Processor” means, with respect to any Receivable, a Person engaged in the business of processing credit card payments that has been engaged by the related Receivables Obligor to provide processing services with respect to designated future Credit Card Payments to be paid to such Receivables Obligor.
“Processor Agreement” means an agreement between a Receivables Obligor and a Processor with respect to the processing of certain Credit Card Payments due to such Receivables Obligor.
“Processing Bank” means, with respect to any Receivable, a bank that has been engaged by the Servicer to collect Credit Card Payments from the related Processor and to remit such funds to the applicable Receivables Obligor’s Transfer Accounts.
“Pro Forma 15 Day Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, after giving pro forma effect to such Permitted Asset Sale, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) that have a Missed Payment Factor of (i) with respect to Daily Pay Receivables, fifteen (15) or higher, and (ii) with respect to Weekly Pay Receivables, three (3) or higher, in each case, as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.
“Pro Forma Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, after giving pro forma effect to such Permitted Asset Sale, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (that are not Charged-

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Off Receivables) that are Pledged Receivables as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.
“Pro Rata Share” means with respect to all payments, computations and other matters relating to (a) any Class A Lender Group and the Class A Revolving Lenders in such Class A Lender Group, the percentage obtained by dividing (i) the Class A Revolving Exposure of such Class A Lender Group by (ii) the aggregate Class A Revolving Exposure of all Class A Lender Groups or (b) any Class B Revolving Lender, the percentage obtained by dividing (i) the Class B Revolving Exposure of that Class B Revolving Lender by (ii) the aggregate Class B Revolving Exposure of all Class B Revolving Lenders.
“Re-Aged” means returning a delinquent, open-end account to current status without collecting the total amount of principal, interest, and fees that are contractually due.
“Receivable Agreements” means, collectively, with respect to any Receivable, a Business Loan and Security Agreement, a Business Loan and Security Agreement Supplement, the Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debit), in each case, in substantially the forms attached to the Undertakings Agreement and as may be amended, supplemented or modified from time to time in accordance with the terms of this Agreement and, if applicable, the Transfer Account Loan Documentation related to such Receivable, and the other documents related thereto to which the Receivables Obligor is a party.
“Receivable File” means, with respect to any Receivable, (i)  copies of each applicable document listed in the definition of “Receivable Agreements,” (ii) the UCC financing statement, if any, filed against the Receivables Obligor in connection with the origination of such Receivable and (iii) copies of each of the documents required by, and listed in, the Document Checklist attached to the Custodial Agreement, each of which may be in electronic form.
“Receivable Yield” means, with respect to any Receivable, the imputed interest rate that is calculated on the basis of the expected aggregate annualized rate of return (calculated inclusive of all interest and fees (other than any Upfront Fees)) of such Receivable over the life of such Receivable. 
Such calculation shall assume:
(a)    52 Payment Dates per annum, for Weekly Pay Receivables; and
(b)    252 Payment Dates per annum, for Daily Pay Receivables.
“Receivables” means any loan or similar contract with a Receivables Obligor pursuant to which Holdings or the Receivables Account Bank extends credit to such Receivables Obligor pursuant to the applicable Receivable Agreements, including all rights under any and all security documents or supporting obligations related thereto, including the applicable Receivable Agreements.

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“Receivables Account Bank” means, with respect to any Receivables, (i) BofI Federal Bank, a federal savings institution, and (ii) any other institution that (a) is organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities and that originates and owns Receivables for Holdings pursuant to a Receivables Program Agreement, and (b) has been approved by the Requisite Lenders in their Permitted Discretion as an originator for purposes of this Agreement.
“Receivables Guarantor” means with respect to any Receivables Obligor, (a) each holder of the Capital Stock (or equivalent ownership or beneficial interest) of such Receivables Obligor in the case of a Receivables Obligor which is a corporation, partnership, limited liability company, trust or equivalent entity, who has agreed to unconditionally guarantee all of the obligations of the related Receivables Obligor under the related Receivable Agreements or (b) the natural person operating as the Receivables Obligor, if the Receivables Obligor is a sole proprietor.
“Receivables Obligor” means with respect to any Receivable, the Person or Persons obligated to make payments with respect to such Receivable, excluding any Receivables Guarantor referred to in clause (a) of the definition of “Receivables Guarantor.”
“Receivables Program Agreement” means the (i) Master Business Loan Marketing Agreement, dated as of July 19, 2012, between Holdings and BofI Federal Bank, a federal savings institution (as amended, modified or supplemented from time to time with the consent of the Requisite Lenders to the extent required pursuant to Section 6.16) and (ii) any other agreement between Holdings and a Receivables Account Bank pursuant to which Holdings may refer applicants for small business loans conforming to the Underwriting Policies to such Receivables Account Bank and such Receivables Account Bank has the discretion to fund or not fund a loan to such applicant based on its own evaluation of such applicant and containing those provisions as are reasonably necessary to ensure that the transfer of small business loans by such Receivables Account Bank to Holdings thereunder are treated as absolute sales (as amended, modified or supplemented from time to time with the consent of the Requisite Lenders to the extent required pursuant to Section 6.16).
“Register” as defined in Section 2.4(b).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Related Agreements” means, collectively the Organizational Documents of Company, each Receivables Program Agreement and the Transfer Account Loan Documentation.
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Related Security” shall have the meaning attributed to such term in the Asset Purchase Agreement.

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“Renewal Receivable” means a Receivable the proceeds of which were used to satisfy in full an existing Receivable.
“Replacement Borrowing Base Certificate” has the meaning set forth in Section 2.1(d)(ii).
“Replacement Lender” as defined in Section 2.19.
“Requirements of Law” means as to any Person, any law (statutory or common), treaty, rule, ordinance, order, judgment, Governmental Authorization, or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Requisite Class A Lenders” means one or more Class A Managing Agents for Class A Lender Groups whose aggregate Class A Revolving Exposures equal or exceed 50% of the sum of the Class A Revolving Exposures of all Class A Lender Groups; provided, however, that, for all purposes other than (i) the definition of Backup Servicer or any amendment or modification thereto or to the definition of Backup Servicing Agreement, (ii) any amendments or modifications to the definition of Hot Backup Servicer Event or Hot Backup Servicer Event Cure or any waiver of the occurrence of any Hot Backup Servicer Event, (iii) any amendment or modification to, or waiver of, Section 2.11(e) or Section 6.13 and (iv) for all purposes of the Servicing Agreement, any Backup Servicing Agreement or any Successor Servicing Agreement, Requisite Class A Lenders shall include at least two Class A Lender Groups whose aggregate Class A Revolving Exposure equals or exceeds $15,000,000.
“Requisite Class B Revolving Lenders” means one or more Class B Revolving Lenders having or holding Class B Revolving Exposure and representing more than 50% of the sum of the aggregate Class B Revolving Exposure of all Class B Revolving Lenders.
“Requisite Lenders” means (a) until the Revolving Commitment Termination Date shall have occurred and all Class A Revolving Loans and all other Obligations owing to the Class A Lender Groups have been paid in full in cash, the Requisite Class A Lenders and (b) thereafter, the Requisite Class B Revolving Lenders.
“Reserve Account” shall have the meaning attributed to such term in the Security Agreement.
“Reserve Account Funding Amount” means, on any day, the excess, if any, of (a) the Reserve Account Funding Requirement as of such day, over (b) the amount then on deposit in the Reserve Account.
“Reserve Account Funding Requirement” means, on any day, the sum of (a) the product of (i) 90 basis points and (ii) the Total Utilization of Class A Revolving Commitments as of such day, and (b) the product of (i) 90 basis points and (ii) the Total Utilization of Class B Revolving Commitments as of such day.

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“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Company now or hereafter outstanding, except a dividend payable solely in shares of Capital Stock to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Company now or hereafter outstanding; and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Company now or hereafter outstanding.
“Retained Interest” has the meaning assigned to such term in Section 5.10.
“Revolving Availability” means Class A Revolving Availability or Class B Revolving Availability, as applicable.
“Revolving Commitment” means a Class A Revolving Commitment or Class B Revolving Commitment, as applicable.
“Revolving Commitment Period” means the period from the Original Closing Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date” means the earliest to occur of (i) September 15, 2017; (ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.9(b); and (iii) the date of the termination of the Revolving Commitments pursuant to Section 7.1.
“Revolving Exposure” means, (a) with respect to any Class A Lender Group as of any date of determination, such Class A Lender Group's Class A Revolving Exposure and (b) with respect to any Class B Revolving Lender as of any date of determination, such Class B Revolving Lender's Class B Revolving Exposure.
“Revolving Loan” means a Class A Revolving Loan or a Class B Revolving Loan, as applicable.
“Revolving Loan Note” means Class A Revolving Loan Note or a Class B Revolving Loan Note as applicable.
“Risk Retention Requirements” means the CRR, as supplemented by Commission Delegated Regulation (EU) No 625/2014 of 13 March 2014 and Commission Delegated Regulation (EU) No 602/2014 of 4 June 2014.
“Rolling 3-Month Average Maximum 15 Day Delinquency Rate” means, for any Monthly Period, the arithmetic average Maximum 15 Day Delinquency Rate for such Monthly Period and the two (2) Monthly Periods immediately preceding such Monthly Period.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor's Financial Services LLC business, and its permitted successors and assigns.

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“SEC” means the Securities and Exchange Commission.
“Second Amendment Effective Date” means October 7, 2015.
“Secured Parties” shall have the meaning attributed to such term in the Security Agreement.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit‑sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Account” means a “securities account” (as defined in the UCC).
“Securities Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Security Agreement” means that certain Security Agreement dated as of the Original Closing Date between Company and the Administrative Agent, as it may be amended, restated or otherwise modified from time to time.
“Selection Procedures” means the procedures for selecting Receivables set forth on Appendix F hereto.
“Seller” has the meaning set forth in the Asset Purchase Agreement.
“Senior Default Interest” means, for any Interest Payment Date, an amount equal to 75% of the aggregate amount of additional interest that accrued on the Class A Revolving Loans during the Interest Period ending on but excluding such Interest Payment Date pursuant to Section 2.6.
“Servicer” means Holdings, in its capacity as the “Servicer” under the Servicing Agreement, and, after any removal or resignation of Holdings as the “Servicer” in accordance with the Servicing Agreement, any Successor Servicer.
“Servicer Default” shall have the meaning attributed to such term in the Servicing Agreement.
“Servicing Agreement” means that certain Second Amended and Restated Servicing Agreement dated as of the Second Amendment Effective Date between Company, Holdings and the Administrative Agent, as it may be amended, restated or otherwise modified from

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time to time, and, after the appointment of any Successor Servicer, the Successor Servicing Agreement to which such Successor Servicer is a party, as it may be amended, restated or otherwise modified from time to time.
“Servicing Fees” shall have the meaning attributed to such term in the Servicing Agreement; provided, however that, after the appointment of any Successor Servicer, the Servicing Fees shall mean the Successor Servicer Fees payable to such Successor Servicer.
“Servicing Reports” means the Servicing Reports delivered pursuant to the Servicing Agreement, including the Monthly Servicing Report.
“Servicing Standard” shall have the meaning attributed to such term in the Servicing Agreement.
“Solvent” means, with respect to Company or Holdings, that as of the date of determination, both (i) (a) the sum of such entity’s debt (including contingent liabilities) does not exceed the present fair saleable value of such entity’s present assets; (b) such entity’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date; and (c) such entity has not incurred and 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 (whether at maturity or otherwise); and (ii) such entity is “solvent” within the meaning given that term and similar terms under laws applicable to it 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 (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Specified Event of Default” means any Event of Default occurring under Sections 7.1(a), (f), (g), (h), (j), (l), (m), (o) or (p); provided, however, that an Event of Default occurring under Section 7.1(m) shall not constitute a Specified Event of Default if the Servicer Default triggering such Event of Default resulted only (x) from the occurrence of an Event of Default or (y) the breach of a Financial Covenant unless such breach was the result of Tangible Net Worth being less than $15,000,000 as of the last day of any Fiscal Quarter.
“SPV Indebtedness” means any secured Indebtedness incurred by a special-purpose Subsidiary of Holdings from time to time solely to finance a portfolio of Receivables.
“Subordinated Indebtedness” means any Indebtedness of Holdings that is fully subordinated to all senior indebtedness for borrowed money of Holdings, as to right and time of payment and as to any other rights and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such senior indebtedness for borrowed money.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, or other business entity of which more than 50% of the total

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voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
“Successor Servicer” shall have the meaning attributed to such term in the Servicing Agreement.
“Successor Servicing Agreement” shall have the meaning attributed to such term in the Servicing Agreement.
“Successor Servicer Fees” means the servicing fees and expenses payable to a Successor Servicer pursuant to a Successor Servicing Agreement.
“Syndication Agent” as defined in the preamble hereto.
“Tangible Net Worth” means, as of any day, the total of (a) Holdings’ total stockholders’ equity, minus (b) all Intangible Assets of Holdings, minus (c) all amounts due to Holdings from its Affiliates, plus (d) any Convertible Indebtedness, plus (e) any Warranty Liability.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed, including any interest, additions to tax or penalties applicable thereto.
“Terminated Lender” as defined in Section 2.19.
“Termination Date” means the date on, and as of, which (a) all Loans have been repaid in full in cash, (b) all other Obligations (other than contingent indemnification obligations for which demand has not been made) under this Agreement and the other Credit Documents have been paid in full in cash or otherwise completely discharged, and (c) the Revolving Commitment Termination Date shall have occurred.
“Three-Month Average Excess Spread” means, as of any date of determination, the average of the Excess Spreads for the three Monthly Periods immediately preceding such date of determination.
“Total Utilization of All Revolving Commitments” means, as at any date of determination, the sum of the Total Utilization of Class A Revolving Commitments and the Total Utilization of Class B Revolving Commitments.
“Total Utilization of Class A Revolving Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding Class A Revolving Loans.

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“Total Utilization of Class B Revolving Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding Class B Revolving Loans.
“Transaction Costs” means the fees, costs and expenses payable by Holdings or Company on or within ninety (90) days after the Amendment Effective Date in connection with the transactions contemplated by the Credit Document Amendments.
“Transfer Account” means an account in the name of a Receivables Obligor maintained at Rocky Mountain Bank & Trust or Kenney Bank & Trust (or any successor financial institution or financial institutions approved by the Administrative Agent in its Permitted Discretion, serving substantially the same purpose) where all Credit Card Payments attributable to such Receivables Obligor are paid.
“Transfer Account Loan Documentation” means, with respect to any Transfer Account Receivable, collectively, the documentation related to such Receivable and the other documents related thereto.
“Transfer Account Receivable” means any Receivable with respect to which (i) the related Receivables Obligor has instructed the related Processor, pursuant to the related Processor Agreement, to remit certain Credit Card Payments to the designated Transfer Account for such Receivables Obligor, (ii) the related Processor has agreed, pursuant to the related Processor Agreement, to remit such Credit Card Payments to the designated Transfer Account for such Receivables Obligor, and (iii) the related Receivables Obligor has authorized Servicer, pursuant to the related Receivable Agreement, to debit from such Receivables Obligor’s Transfer Account on each Business Day the amounts owing under the related Receivable Agreement.
“Transfer Date” has the meaning assigned to such term in the Asset Purchase Agreement.
“Turbo Period” has the meaning assigned to such term in the Undertakings Agreement.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“UCC Agent” means Corporation Service Company, a Delaware corporation, in its capacity as agent for Holdings or other entity or entities providing secured party representation services for Holdings from time to time.
“Undertakings Agreement” means that certain agreement, dated as of the Amendment Effective Date, by and among Holdings, the Company, the lenders party thereto, the Paying Agent and the Administrative Agent.
“Underwriting Policies” means the credit policies and procedures of Holdings, including the underwriting guidelines and OnDeck Score methodology, and the collection policies and procedures of Holdings, in each case in effect as of the Amendment Effective Date and in the

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form attached to the Undertakings Agreement, as such policies, procedures, guidelines and methodologies may be amended from time to time in accordance with Section 6.17.
“Upfront Fees” means, with respect to any Receivable, the sum of any fees charged by Holdings or the Receivables Account Bank, as the case may be, to a Receivables Obligor in connection with the disbursement of a loan, as set forth in the Business Loan and Security Agreement Supplement related to such Receivable, which are deducted from the initial amount disbursed to such Receivables Obligor, including the “Origination Fee” set forth on the applicable Receivable Agreement.
“Vintage Pool” means, as of any date of determination, the pool of Receivables originated by Holdings or the Receivables Account Bank and acquired by Company during any completed Fiscal Quarter.
“Warranty Liability” means, as of any day, the aggregate stated balance sheet fair value of all outstanding warrants exercisable for redeemable convertible preferred shares of Holdings determined in accordance with GAAP.
“Weekly Pay Receivable” means any Receivable for which a Payment is generally due on one business day per week.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2    Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Company to Lenders pursuant to Section 5.1(a) and Section 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(d), if applicable). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either Company, the Requisite Lenders or the Administrative Agent shall so request, the Administrative Agent, the Administrative Agent, the Lenders and Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP and accounting principles and policies in conformity with those used to prepare the Historical Financial Statements and (b) Company shall provide to the Administrative Agent, each Class A Managing Agent and each Lender financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. If Administrative Agent, Company and the Administrative Agent cannot agree upon the required amendments within thirty (30) days following the date of implementation of any applicable change in GAAP, then all financial statements delivered and all calculations of financial covenants

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and other standards and terms in accordance with this Agreement and the other Credit Documents shall be prepared, delivered and made without regard to the underlying change in GAAP. 
1.3    Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
1.4    Amendment and Restatement. In order to facilitate the Amendment and Restatement:
(a)    Each of the parties hereto hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended and restated to the extent provided by this Agreement.
(b)    All of the “Obligations” (as defined in the Existing Credit Agreement, the “Existing Obligations”) outstanding under the Existing Credit Agreement and other “Credit Documents” (as defined in the Existing Credit Agreement, the “Existing Credit Documents”) shall continue as Obligations hereunder to the extent not repaid on the Amendment Effective Date, and this Agreement is given as a substitution of and modification of, to the extent provided herein, and not as a payment of or novation of, the indebtedness, liabilities and Existing Obligations of the Company under the Existing Credit Agreement, and neither the execution and delivery of this Agreement nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation or rescission of the Existing Credit Agreement or any obligations hereunder.
SECTION 2.    LOANS
2.1    Revolving Loans.
(a)    Revolving Commitments.
(i)    During the Revolving Commitment Period, subject to the terms and conditions hereof, including, without limitation delivery of an updated Borrowing Base Certificate and Borrowing Base Report pursuant to Section 3.3(a)(i), (i) each Class A Revolving Conduit Lender may in its sole discretion, and each Class A Revolving Committed Lender shall, if the Class A Revolving Conduit Lender in its related Class A Lender Group elects not to (or if there is no Class A Revolving Conduit Lender in its related Class A Lender Group), make Class A Revolving Loans to Company in an amount, for each Class A Lender Group, equal to its Class A Lender Group Percentage of the amount requested by Company

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pursuant to this Section 2.1, provided that no Class A Revolving Lender shall make any such Class A Revolving Loan or portion thereof to the extent that, after giving effect to such Class A Revolving Loan:
a)     the Total Utilization of Class A Revolving Commitments exceeds the Class A Borrowing Base;
b)     the aggregate outstanding principal amount of the Class A Revolving Loans funded by such Class A Revolving Lender hereunder shall exceed its Class A Conduit Lending Limit (in the case of a Class A Revolving Conduit Lender) or Class A Revolving Commitment (in the case of a Class A Revolving Committed Lender); or
c)     the sum of (1) the aggregate Face Amount of Commercial Paper issued by the Class A Revolving Conduit Lender(s) in such Class A Lender Group to fund or maintain the Class A Revolving Loans hereunder and (2) the aggregate outstanding principal amount of the Class A Revolving Loans funded hereunder by the Lenders in such Class A Lender Group other than through the issuance of Commercial Paper, shall exceed the Class A Lender Group Limit for such Lender Group.
(ii)    During the Revolving Commitment Period, subject to the terms and conditions hereof, including, without limitation delivery of an updated Borrowing Base Certificate and Borrowing Base Report pursuant to Section 3.3(a)(i), each Class B Revolving Lender may, but is under no obligation to, make Class B Revolving Loans to Company in an aggregate amount up to but not exceeding such Lender’s Class B Revolving Commitment; provided, that notwithstanding anything to the contrary herein, no Class B Revolving Lender shall have any commitment or obligation to make any Class B Revolving Loan at any time or for any reason; provided, further that no Class B Revolving Lender shall make any such Class B Revolving Loan or portion thereof to the extent that, after giving effect to such Class B Revolving Loan:
a)     the Total Utilization of Class B Revolving Commitments exceeds the Class B Borrowing Base; or
b)     the aggregate outstanding principal amount of the Class B Revolving Loans funded by such Class B Revolving Lender hereunder shall exceed its Class B Revolving Commitment.
(b)    Amounts borrowed pursuant to Section 2.1(a) may be repaid and reborrowed during the Revolving Commitment Period, and any repayment of the Loans (other than (i) pursuant to Section 2.10 (which circumstance shall be governed by Section 2.10), (ii) on any Interest Payment Date upon which no Event of Default has occurred and is continuing (which circumstances shall be governed by Section 2.12(a)) or (iii) on a date upon which an Event of Default has occurred and is continuing (which circumstance shall be governed by Section 2.12(b))) shall be applied as directed by Company, provided, that each repayment of the Class B Revolving Loans shall be in

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a minimum amount of $100,000. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
(c)    If there is more than one Class A Revolving Committed Lender in a Class A Lender Group, each such Class A Revolving Committed Lender shall lend its Committed Lender Pro Rata Share of such Class A Lender Group’s Class A Lender Group Percentage of each requested Class A Revolving Loan, to the extent such Class A Revolving Loan is not made by the related Class A Revolving Conduit Lender(s). Each borrowing of Class A Revolving Loans hereunder shall consist of Class A Revolving Loans made on the same day by each of the Class A Lender Groups ratably according to their respective Class A Lender Group Percentages.
(d)    Borrowing Mechanics for Revolving Loans.
(i)    Class A Revolving Loans shall be made in an aggregate minimum amount of $250,000, and Class B Revolving Loans shall be made in an aggregate minimum amount of $50,000; provided, that subject to Section 2.1(a), on each Credit Date Class B Revolving Loans shall be requested by Company in a manner which results in the Total Utilization of Class B Revolving Commitments equaling 7.6086957% of the Total Utilization of All Revolving Commitments, in each case after giving effect to all Revolving Loans and principal payments being made on such Credit Date. 
(ii)    Subject to Section 2.1(h), whenever Company desires that Lenders make Revolving Loans, Company shall deliver to Administrative Agent, each Class A Managing Agent, the Class B Agent, the Custodian and the Paying Agent a fully executed and delivered Funding Notice no later than 11:00 a.m. (New York City time) at least two (2) Business Days in advance of the proposed Credit Date provided, that (x) the Company shall review such Funding Notice on the Business Day immediately preceding the proposed Credit Date and (y) if following such review it has determined that a Receivable would not qualify as an Eligible Receivable by virtue of clause (h) of the Eligibility Criteria not being satisfied then (1) such Receivable shall be deemed to be excluded from the Borrowing Base Certificate included in such Funding Notice (each, an “Original Borrowing Base Certificate”) (and any certification related thereto contained therein or in the Credit Documents) and (2) the Company shall deliver to Administrative Agent, each Class A Managing Agent, the Class B Agent, the Custodian and the Paying Agent a revised Funding Notice no later than 1:00 p.m. (New York City time) at least one (1) Business Day in advance of the proposed Credit Date and such revised Funding Notice (and the corresponding Borrowing Base Certificate (each, a “Replacement Borrowing Base Certificate”)) shall be modified solely to make adjustments necessary to exclude any such Receivable that would not qualify as an Eligible Receivable by virtue of clause (h) of the Eligibility Criteria including any reductions due to any resulting Excess Concentration Amounts, if any. Each Funding Notice shall be delivered with a Borrowing Base Certificate reflecting sufficient Class A Revolving Availability and Class B Revolving Availability, as applicable, for the requested Revolving Loans and a Borrowing Base Report.

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(iii)    Each Lender not in a Class A Lender Group shall make the amount of its Revolving Loan available to the Paying Agent, and each Lender in a Class A Lender Group shall make the amount of its Class A Revolving Loan available to its applicable Class A Managing Agent who shall make such Revolving Loan available to the Paying Agent, in each case, not later than 1:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, and the Paying Agent shall remit such funds to the Company not later than 3:00 p.m. (New York City time) by wire transfer of same day funds in Dollars to the account of Company designated in the related Funding Notice.
(iv)    Company may borrow Class A Revolving Loans pursuant to this Section 2.1, purchase Eligible Receivables pursuant to Section 2.11(c)(vii)(C) and/or repay Revolving Loans pursuant to Section 2.11(c)(vii)(B) no more than three times a week in the aggregate. Company may borrow Class B Revolving Loans pursuant to this Section 2.1 no more than once a week (which day shall also be a day on which Company is borrowing Class A Revolving Loans pursuant to this Section 2.1, purchasing Eligible Receivables pursuant to Section 2.11(c)(vii)(C), and/or repaying Revolving Loans pursuant to Section 2.11(c)(vii)(B) or, if it is not such a day, it shall count as such a day solely for purposes of the weekly limit set forth in the immediately preceding sentence).
(e)    Deemed Requests for Revolving Loans to Pay Required Payments. All payments of principal, interest, fees and other amounts payable to Lenders of any Class under this Agreement or any Credit Document may be paid from the proceeds of Revolving Loans of such Class, made pursuant to a Funding Notice from Company pursuant to Section 2.1(d).
(f)    Class A Revolving Conduit Lender Acceptance or Rejection. If a Class A Revolving Conduit Lender shall receive a Funding Notice, such Class A Revolving Conduit Lender shall instruct the related Class A Managing Agent to accept or reject such request by no later than the close of business on the Business Day of the receipt of the applicable Funding Notice. If a Class A Revolving Conduit Lender rejects a Funding Notice, the related Class A Managing Agent shall promptly notify Company and the related Class A Revolving Committed Lender(s) of such rejection. If a Class A Revolving Conduit Lender declines to fund any portion of the Class A Revolving Loans requested of the Class A Lender Group of which it is a member in a Funding Notice, Company may cancel and rescind such Funding Notice in its entirety upon notice thereof received by the Administrative Agent and each Class A Managing Agent prior to the close of business on the Business Day immediately prior to the proposed Credit Date. At no time will a Class A Revolving Conduit Lender be obligated to make Class A Revolving Loans hereunder regardless of any notice given or not given pursuant to this Section.
(g)    Committed Lender’s Commitment.
(i)    If a Class A Revolving Conduit Lender rejects a Funding Notice and Company has not cancelled such Funding Notice in accordance with Section 2.1(f) above, or if there is no Class A Revolving Conduit Lender in a Class A Revolving Lender Group, any Class A Revolving Loan requested by Company in such Funding Notice shall be made by the related Class A Revolving Committed Lenders in such Class A Lender Group on a

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pro rata basis in accordance with their respective Committed Lender Pro Rata Share of such Class A Revolving Loan.
(ii)    The obligations of any Class A Revolving Committed Lender to make Class A Revolving Loans hereunder are several from the obligations of any other Class A Revolving Committed Lenders (whether or not in the same Class A Lender Group). The failure of any Class A Revolving Committed Lender to make Class A Revolving Loans hereunder shall not release the obligations of any other Class A Revolving Committed Lender (whether or not in the same Class A Lender Group) to make Loans hereunder, but no Class A Revolving Committed Lender shall be responsible for the failure of any other Class A Revolving Committed Lender to make any Class A Revolving Loan hereunder.
(iii)    Notwithstanding anything herein to the contrary, a Class A Revolving Committed Lender shall not be obligated to fund any Class A Revolving Loan at any time if, after giving effect to such Class A Revolving Loan, the aggregate outstanding Class A Revolving Loans funded by such Class A Revolving Committed Lender hereunder would exceed an amount equal to (i) such Class A Revolving Committed Lender’s Commitment, minus (ii) such Class A Revolving Committed Lender’s ratable share of the aggregate outstanding principal balance of the Class A Revolving Loans held by the Class A Revolving Conduit Lender(s) in such Class A Revolving Committed Lender’s Class A Lender Group.
(h)    Certain Borrowing Limitations. Notwithstanding the other provision of this Agreement:
(i)    For purposes of this Agreement, (i) each Funding Notice requesting Class A Revolving Loans and specifying a Credit Date which is thirty-one (31) or more days following the date of such Funding Notice shall constitute a “Funding Notice (31-Day)”, and each other Funding Notice shall constitute a “Funding Notice (Overnight)”, and (ii) Class A Revolving Loans made pursuant to a Funding Notice (31-Day) shall, for long as they remain outstanding (as determined pursuant to this Section 2.1(h)), constitute “Class A Revolving Loans (31-Day)”, and any other Class A Revolving Loans shall, for long as they remain outstanding (as determined pursuant to this Section 2.1(h)), constitute “Class A Revolving Loans (Overnight).”  Company hereby agrees to designate on the first page of each Funding Notice whether such Funding Notice is a Funding Notice (31-Day) or a Funding Notice (Overnight).
(ii)    Company shall not submit a Funding Notice (Overnight) and no Class A Revolving Lender shall be required to make any Class A Revolving Loans (Overnight) if, solely as a result of making such Class A Revolving Loans (Overnight), the aggregate outstanding principal amount of the Class A Revolving Loans (Overnight) would exceed 20% of the aggregate Class A Revolving Commitments. In determining the aggregate outstanding principal amount of the Class A Revolving Loans (Overnight) for purposes of this Section 2.1(h), repayments of Class A Revolving Loans shall be deemed to be allocated first to the reduction of outstanding principal amount of Class A Revolving Loans (Overnight).

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(iii)    Upon submission of a Funding Notice (31-Day), Company may request in writing that the applicable Class A Revolving Lenders waive the minimum thirty-one (31)-day notice requirement for Class A Revolving Loans (31-Day) and fund the Class A Revolving Loans requested under such Funding Notice (31-Day) on the Business Day proposed by Company in such written request (which Business Day shall be at least two (2) Business Days after the date of delivery of such Funding Notice (31-Day) if such Funding Notice (31-Day) was delivered by 11:00 a.m. (New York City time), or at least three (3) Business Days after the date of delivery of such Funding Notice (31-Day) if such Funding Notice (31-Day) was delivered after 11:00 a.m. (New York City time)). Each Class A Revolving Lender receiving such a written request may accept such request and such earlier funding date, in its sole and exclusive discretion, no later than 5:00 p.m. (New York City time) on the Business Day of its receipt of such written request (or no later than 5:00 p.m. (New York City time) on the next Business Day if it receives such written request after noon (New York City time)), and if not so accepted by each applicable Class A Revolving Lender, such request and such earlier funding date shall be deemed to have been rejected.  If such written request and such earlier funding date are so accepted, then such earlier date shall be deemed to be the Credit Date for such Funding Notice (31-Day).  Notwithstanding any such acceptance by the applicable Class A Revolving Lenders, Class A Revolving Loans made pursuant to such Funding Notice (31-Day) shall nonetheless constitute Class A Revolving Loans (31-Day) for as long as they remain outstanding (as determined pursuant to this Section 2.1(h)).
(iv)    The acceptance by a Class A Revolving Lender of an earlier Credit Date for a Class A Revolving Loan (31-Day) on one or more occasions shall not constitute a waiver, amendment or impairment of, or otherwise affect, the absolute right of such Class A Revolving Lender to receive at least thirty-one (31) days’ prior written notice before such Class A Revolving Lender is obligated to make any subsequent Revolving Loans (31-Day).
2.2    Pro Rata Shares. Subject to the rights of any Class A Revolving Conduit Lender to elect to fund or not fund a Class A Revolving Loan as described in Section 2.1, all Loans of each Class shall be made by Class A Lender Groups or Class B Revolving Lenders, as applicable, simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder.
2.3    Use of Proceeds. The proceeds of the Revolving Loans made after the Original Closing Date shall be applied by Company to (a) finance the acquisition of Eligible Receivables from Holdings pursuant to the Asset Purchase Agreement, (b) pay Transaction Costs and ongoing fees and expenses of Company hereunder and (c) in the case of Revolving Loans made pursuant to Section 2.1(e), to make payments of principal, interest, fees and other amounts owing to the Lenders under the Credit Documents. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds

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to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.
2.4    Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a)    Lenders’ Evidence of Debt. Each Lender (or, if applicable, its related Class A Managing Agent) shall maintain on its internal records an account or accounts evidencing the Obligations of Company to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Company, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern absent manifest error.
(b)    Register. Paying Agent shall maintain at its Principal Office a register for the recordation of the names and addresses of the Class A Lender Groups and the Class B Revolving Lenders and the Revolving Commitments and Loans of each Class A Lender Group and Class B Revolving Lender from time to time (the “Register”). The Register shall be available for inspection by Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. Paying Agent shall record in the Register the Revolving Commitments and the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Company. Each Class A Managing Agent and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in respect of any Loan. Company hereby designates the entity serving as Paying Agent to serve as Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.4, and Company hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Paying Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”
(c)    Revolving Loan Notes. If so requested by any Class A Managing Agent for a Class A Lender Group or Class B Revolving Lender by written notice to Company (with a copy to Administrative Agent) at any time after the Original Closing Date, Company shall execute and deliver to such Class A Managing Agent for a Class A Lender Group or Class B Revolving Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Class A Lender Group or such Class B Revolving Lender pursuant to Section 9.6), promptly after Company’s receipt of such notice) a Class A Revolving Loan Note or Class B Revolving Loan Note, as applicable, to evidence such Class A Lender Group's or Class B Revolving Lender’s Revolving Loans.
2.5    Interest on Loans.
(a)    Except as otherwise set forth herein, (i) the Class A Revolving Loans shall accrue interest daily in an amount equal to the product of (A) the unpaid principal amount thereof as of such day and (B) the Cost of Funds Rate for such day plus the Class A Applicable Margin,

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and (ii) the Class B Revolving Loans shall accrue interest daily in an amount equal to the product of (A) the unpaid principal amount thereof as of such day and (B) the Alternative Rate for such day plus the Class B Applicable Margin.
(b)    Interest payable pursuant to Section 2.5(a) shall be computed on the basis of a 360‑day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.
(c)    Except as otherwise set forth herein, interest on each Loan shall be payable in arrears (i) on and to each Interest Payment Date; (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity. Notwithstanding the foregoing, if on any Interest Payment Date occurring during a Turbo Period insufficient funds are available to pay any amount of interest, costs, fees or other amounts due on such date to the Class A Managing Agents, the Class A Revolving Lenders, the Class B Agent, or the Class B Revolving Lenders pursuant to a payment priority described in Section 2.12(b)(v), (vi), (vii), (ix), (x) or (xii), then as of such Interest Payment Date all amounts owed under such Sections shall be automatically, and without the need for action on the part of any Person, capitalized and added to the principal balance of the Class A Revolving Loans or the Class B Revolving Loans, as applicable (and the Total Utilization of Class A Revolving Commitments or the Total Utilization of Class B Revolving Commitments, as applicable, shall be deemed automatically increased by such capitalized amount(s) from and after such Interest Payment Date) in lieu of such amounts being payable in cash. Upon any such capitalization, the payment obligation of the Company as to each such amount on such Interest Payment Date shall be deemed satisfied for all purposes of this Agreement.
(d)    If applicable, each Class A Managing Agent shall deliver to Company and Paying Agent, two (2) Business Days prior to each Interest Rate Determination Date an invoice, setting forth (i) an estimate of the amount of interest payable pursuant to Section 2.5(a) to the Class A Revolving Conduit Lenders in its Class A Lender Group based on the CP Rate for each such Class A Revolving Conduit Lender for each day during the Interest Period to which such Interest Rate Determination Date relates and (ii) the amount of any variation between the amount of interest payable to each such Class A Revolving Conduit Lender for the preceding Interest Period based on such notices and estimates and accrued but unpaid interest payable pursuant to Section 2.5(a) payable to such Class A Revolving Conduit Lender for such Interest Period based on its final determination of the CP Rate for such Class A Revolving Conduit Lender for each day during such Interest Period. The amount of any shortfall in interest payable to any Class A Revolving Conduit Lender pursuant to Section 2.5(a) based on such variation shall be included in the portion of interest payable pursuant to Section 2.5(a) payable to such Class A Revolving Conduit Lenders on the next succeeding Interest Payment Date, and the amount of any overpayment of interest to any Class A Revolving Conduit Lender based on such variation shall be credited against the portion of interest

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payable pursuant to Section 2.5(a) otherwise payable to such Class A Revolving Conduit Lenders on the next succeeding Interest Payment Date.
2.6    Default Interest. Subject to Section 9.18, upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including post‑petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable in accordance with Section 2.12(b) at a rate that is 3.0% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 3.0% per annum in excess of the interest rate otherwise payable hereunder) (the “Default Interest Rate”). Payment or acceptance of the increased rates of interest provided for in this Section 2.6 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.7    Fees.
(a)    Company agrees to pay to the Person entitled to payment thereunder the amounts set forth in any Fee Letter. Company agrees to pay any Liquidation Fees payable to a Class A Revolving Lender or a Class B Revolving Lender, as applicable, in connection with a repayment of Revolving Loans pursuant to Section 2.11(c)(vii)(B).
(b)    All fees referred to in Section 2.7(a) shall be calculated on the basis of a 360‑day year and the actual number of days elapsed and shall be payable monthly in arrears on (i) each Interest Payment Date during the Revolving Commitment Period, commencing on the first such date to occur after the Closing Date, and (ii) on the Revolving Commitment Termination Date.
2.8    Revolving Commitment Termination Date. Company shall repay the Revolving Loans in full on or before the Revolving Commitment Termination Date.
2.9    Voluntary Commitment Reductions.
(a)    [Reserved].
(b)    Voluntary Commitment Reductions.
(i)    Subject to payment of any Early Termination Fee or prepayment premium described in Section 2.9(c), Company may, upon not less than three (3) Business Days’ prior written notice to Administrative Agent, each Class A Managing Agent and the Class B Agent, at any time and from time to time terminate in whole or permanently reduce in part the Revolving Commitments in an amount up to the amount by which the Class A Revolving Commitments exceed the Total Utilization of Class A Revolving Commitments or the Class B Revolving Commitments exceed the Total Utilization of Class B Revolving Commitments, as applicable, in each case at the time of such proposed termination or reduction; provided, any such partial reduction of the Class A Revolving Commitments shall

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be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount and any such partial reduction of the Class B Revolving Commitments shall be in an aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess of that amount; and provided further that any such reduction of the Class A Revolving Commitments shall effect a ratable reduction of the Class A Revolving Commitments of each Class A Revolving Committed Lender and of each Class A Lender Group’s Class A Lender Group Limit.
(ii)    Company’s notice shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Company’s notice and shall reduce the Revolving Commitment of each applicable Class A Revolving Committed Lender and/or Class B Revolving Lender proportionately to its applicable Pro Rata Share thereof.
(c)    Call Protection. If Company voluntarily reduces or terminates any Revolving Commitments as provided in Section 2.9(b) other than in connection with a Permitted Commitment Reduction, Company shall pay to Paying Agent, on behalf of the Lenders whose Revolving Commitments were terminated or reduced, on the date of such reduction or termination, the amounts (if any) described in the Undertakings Agreement.
2.10    Borrowing Base Deficiency. Company shall prepay the Revolving Loans within two (2) Business Day of the earlier of (i) an Authorized Officer, the Chief Financial Officer or Transaction Manager (or in each case, the equivalent thereof) of Company becoming aware that a Borrowing Base Deficiency exists and (ii) receipt by Company of notice from any Agent or any Lender that a Borrowing Base Deficiency exists, in each case in an amount equal to such Borrowing Base Deficiency, which shall be applied, first, to prepay the Class A Revolving Loans as necessary to cure any Class A Borrowing Base Deficiency, and, second, to prepay the Class B Revolving Loans as necessary to cure any Class B Borrowing Base Deficiency.
2.11    Controlled Accounts.
(a)    Company shall establish and maintain cash management systems reasonably acceptable to the Administrative Agent, including, without limitation, with respect to blocked account arrangements. Other than a cash management deposit account (the “Funding Account”) maintained at the Paying Agent into which proceeds of Loans may be funded at the direction of Company, Company shall not establish or maintain a Deposit Account or Securities Account other than a Controlled Account and Company shall not, and shall cause Servicer not to deposit Collections or proceeds thereof in a Securities Account or Deposit Account which is not a Controlled Account (provided, that, inadvertent and non-reoccurring errors by Servicer in applying such Collections or proceeds that are promptly, and in any event within two (2) Business Days after Servicer or Company has (or should have had in the exercise of reasonable diligence) knowledge thereof, cured shall not be considered a breach of this covenant). All Collections and proceeds of Collateral shall be subject to an express trust for the benefit of Collateral Agent on behalf of the Secured Parties and shall be delivered to Lenders for application to the Obligations or any other amount due under any other Credit Document as set forth in this Agreement.

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(b)    On or prior to the Original Closing Date, Company caused to be established and shall thereafter cause to be maintained, (i) a trust account (or sub-accounts) in the name of Company and under the sole dominion and control of, the Collateral Agent designated as the “Collection Account” in each case bearing a designation clearly indicating that the funds and other property credited thereto are held for Collateral Agent for the benefit of the Lenders and subject to the applicable Securities Account Control Agreement and (ii) a Deposit Account into which the proceeds of all Pledged Receivables, including by automatic debit from Receivables Obligors’ operating accounts, shall be deposited in the name of Company designated as the “Lockbox Account” as to which the Collateral Agent has sole dominion and control over such account for the benefit of the Secured Parties within the meaning of Section 9-104(a)(2) of the UCC pursuant to the Lockbox Account Control Agreement. The Lockbox Account Control Agreement will provide that all funds in the Lockbox Account will be swept daily into the Collection Account.
(c)    Lockbox System.
(i)    Company has established pursuant to the Lockbox Account Control Agreement and the other Control Agreements for the benefit of the Collateral Agent, on behalf of the Secured Parties, a system of lockboxes and related accounts or deposit accounts as described in Sections 2.11(a) and (b) (the “Lockbox System”) into which (subject to the proviso in Section 2.11(a)) all Collections shall be deposited.
(ii)    Company shall using a method reasonably satisfactory to Administrative Agent grant Backup Servicer (and its delegates) read-only access to the Lockbox Account.
(iii)    Company shall not establish any lockbox or lockbox arrangement without the consent of the Administrative Agent in its sole discretion, and prior to establishing any such lockbox or lockbox arrangement, Company shall cause each bank or financial institution with which it seeks to establish such a lockbox or lockbox arrangement, to enter into a control agreement with respect thereto in form and substance satisfactory to the Administrative Agent in its sole discretion.
(iv)    Without the prior written consent of the Administrative Agent, Company shall not (A) change the general instructions given to the Servicer in respect of payments on account of Pledged Receivables to be deposited in the Lockbox System or (B) change any instructions given to any bank or financial institution which in any manner redirects any Collections or proceeds thereof in the Lockbox System to any account which is not a Controlled Account.
(v)    Company acknowledges and agrees that (A) the funds on deposit in the Lockbox System shall continue to be collateral security for the Obligations secured thereby, and (B) upon the occurrence and during the continuance of an Event of Default, at the election of the Requisite Lenders, the funds on deposit in the Lockbox System may be applied as provided in Section 2.12(b).

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(vi)    Company has directed, and will at all times hereafter direct, the Servicer to direct payment from each of the Receivables Obligors on account of Pledged Receivables directly to the Lockbox System. Company agrees (A) to instruct the Servicer to instruct each Receivables Obligor to make all payments with respect to Pledged Receivables directly to the Lockbox System and (B) promptly (and, except as set forth in the proviso to this Section 2.11(c)(vi), in no event later than two (2) Business Days following receipt) to deposit all payments received by it on account of Pledged Receivables, whether in the form of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, in the Lockbox System in precisely the form in which they are received (but with any endorsements of Company necessary for deposit or collection), and until they are so deposited to hold such payments in trust for and as the property of the Collateral Agent; provided, however, that with respect to any payment received that does not contain sufficient identification of the account number to which such payment relates or cannot be processed due to an act beyond the control of the Servicer, such deposit shall be made no later than the second Business Day following the date on which such account number is identified or such payment can be processed, as applicable. Company shall cause the Servicer to use commercially reasonable efforts to promptly identify all unidentified payments.
(vii)    So long as no Event of Default has occurred and shall be continuing and a Turbo Period is not occurring, Company or its designee shall be permitted to direct the investment of the funds from time to time held in the Controlled Accounts (A) in Permitted Investments and to sell or liquidate such Permitted Investments and reinvest proceeds from such sale or liquidation in other Permitted Investments (but none of the Collateral Agent, the Administrative Agent or the Lenders shall have liability whatsoever in respect of any failure by the Controlled Account Bank to do so), with all such proceeds and reinvestments to be held in the applicable Controlled Account; provided, however, that the maturity of the Permitted Investments on deposit in the Controlled Accounts shall be no later than the Business Day immediately preceding the date on which such funds are required to be withdrawn therefrom pursuant to this Agreement, (B) to repay the Loans in accordance with Section 2.1(b), provided, however, that (w) in order to effect any such repayment from a Controlled Account, Company shall deliver to the Administrative Agent, the Paying Agent, each Class A Managing Agent and the Class B Agent a Controlled Account Voluntary Payment Notice in substantially the form of Exhibit G hereto no later than 12:00 p.m. (New York City time) on the Business Day prior to the date of any such repayment specifying the date of prepayment, the amount to be repaid per Class and the Controlled Account from which such repayment shall be made, (x) no more than three (3) borrowings of Class A Revolving Loans pursuant to Section 2.1, purchases of Eligible Receivables pursuant to Section 2.11(c)(vii)(C) and/or repayments of Revolving Loans pursuant to this Section 2.11(c)(vii)(B) may be made in any calendar week and no such repayment may occur on any Interest Payment Date, (y) the minimum amount of any such repayment on the Class A Revolving Loans shall be $250,000 and the minimum amount of any such repayment on the Class B Revolving Loans shall be $500,000, and (z) after giving effect to each such repayment, an amount equal to not less than the sum of (i) any Reserve Account Funding Amount and (ii) the aggregate of 105% of the aggregate pro forma amount of interest, fees and expenses projected to be due hereunder and under the Servicing Agreement, the Backup

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Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement, if any, for the remainder of the applicable Interest Period, based on the Accrued Interest Amount on such date and a projection of the interest to accrue on the Loans during the remainder of the applicable Interest Period using the same assumptions as are contained in the calculation of the Accrued Interest Amount, and the Total Utilization of Class A Revolving Commitments and the Total Utilization of Class B Revolving Commitments on such date (after giving effect to such repayments), shall remain in the Controlled Accounts, or (C) to purchase additional Eligible Receivables pursuant to the terms and conditions of the Asset Purchase Agreement, provided, that (w) a Borrowing Base Certificate (evidencing sufficient Revolving Availability after giving effect to the release of Collections and the making of any Loan being made on such date and that after giving effect to the release of Collections, no event has occurred and is continuing that constitutes, or would result from such release that would constitute, a Borrowing Base Deficiency, Default or Event of Default) and a Borrowing Base Report shall be delivered to the Administrative Agent, the Paying Agent, the Custodian, each Class A Managing Agent and the Class B Agent no later than 11:00 a.m. (New York City time) at least two (2) Business Days in advance of any such proposed purchase or release, (x) if such purchase of Eligible Receivables were being funded with Loans, the conditions for making such Loans on such date contained in Section 3.3(a)(iii) and Section 3.3(a)(vi) would be satisfied as of such date, (y) Company may purchase Eligible Receivables pursuant to this Section 2.11(c)(vii)(C), repay Revolving Loans pursuant to Section 2.11(c)(vii)(B) and/or borrow Class A Revolving Loans pursuant to Section 2.1 no more than three times a week in the aggregate, and provided, further, that if such withdrawal from the Collection Account does not occur simultaneously with the making of a Loan by the Lenders hereunder pursuant to the delivery of a Funding Notice, such withdrawal shall be considered a “Revolving Loan” solely for purposes of Section 2.1(d)(iv) and (z) after giving effect to such release, an amount equal to not less than the sum of (i) any Reserve Account Funding Amount and (ii) the aggregate of 105% of the aggregate pro forma amount of interest, fees and expenses projected to be due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement, if any, for the remainder of the applicable Interest Period, based on the Accrued Interest Amount on such date and a projection of the interest to accrue on the Loans during the remainder of the applicable Interest Period using the same assumptions as are contained in the calculation of the Accrued Interest Amount, and the Total Utilization of Class A Revolving Commitments and the Total Utilization of Class B Revolving Commitments on such date shall remain in the Controlled Accounts.
(viii)    All income and gains from the investment of funds in the Controlled Accounts shall be retained in the respective Controlled Account from which they were derived, until each Interest Payment Date, at which time such income and gains shall be applied in accordance with Section 2.12(a) or (b) (or, if sooner, until utilized for a repayment pursuant to Section 2.11(c)(vii)(B) or a purchase of additional Eligible Receivables pursuant to Section 2.11(c)(vii)(C)), as the case may be. As between Company and Collateral Agent, Company shall treat all income, gains and losses from the investment of amounts in the Controlled Accounts as its income or loss for federal, state and local income tax purposes.

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(d)    Transfer Accounts. Company agrees to instruct the Servicer to (i) deduct from the related Transfer Account any amounts owed to Company, and (ii) remit such amounts directly to a Controlled Account by no later than the second Business Day immediately following the deposit of such amounts in the related Transfer Account. Company shall use commercially reasonable efforts to cause each applicable Receivables Obligor to cause all amounts owing in respect of a Transfer Account Receivable to be remitted directly to the applicable Transfer Account by the applicable Processor in accordance with the applicable Processor Agreement.
(e)    Reserve Account. On or prior to the Original Closing Date, Company caused to be established and shall thereafter cause to be maintained a Deposit Account in the name of Company designated as the “Reserve Account” as to which the Collateral Agent has control over such account for the benefit of the Lenders within the meaning of Section 9-104(a)(2) of the UCC pursuant to the Blocked Account Control Agreement. The Reserve Account will be funded with funds available therefor pursuant to Section 2.12(a).
2.12    Application of Proceeds.
(a)    Application of Amounts. So long as no Event of Default has occurred and is continuing (after giving effect to the application of funds in accordance herewith on the relevant date) and a Turbo Period is not occurring, on each Interest Payment Date, all amounts in the Collection Account and in the Lockbox Account and all amounts (if any) in the Reserve Account in excess of the Reserve Account Funding Requirement as of such day shall be applied by the Paying Agent based on the Monthly Servicing Report as follows:
(i)    first, to Company, on a pari passu basis, (A) amounts sufficient for Company to maintain its limited liability company existence and to pay similar expenses up to an amount not to exceed $1,000 in any Fiscal Year, and only to the extent not previously distributed to Company during such Fiscal Year pursuant to clause (xiii) below, and (B) to pay any accrued and unpaid Servicing Fees (provided, however, that the amount of any Successor Servicer Fees payable to a Successor Servicer under this clause (i) shall not exceed $225,000 in any calendar month);
(ii)    second, on a pari passu basis, (A) to Company to pay any accrued and unpaid Backup Servicing Fees and any accrued and unpaid fees and expenses of the Custodian and the Controlled Account Bank (in respect of the Controlled Accounts), (B) to Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents, (C) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents and (D) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents; provided, however, that (1) the aggregate amount of costs, fees or indemnities payable to Administrative Agent, Collateral Agent and Paying Agent pursuant to this clause (ii) shall not exceed $450,000 in any Fiscal Year, and (2) the aggregate amount of Backup Servicing Fees payable under this clause (ii) shall not exceed $200,000 in any Fiscal Year;

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(iii)    third, on a pro rata basis, to each Class A Managing Agent, the amount of accrued interest calculated in accordance with Section 2.5(a)(i) on the Class A Revolving Loans owing to its related Class A Revolving Lenders;
(iv)    fourth, on a pro rata basis, to Class A Managing Agents in an amount necessary to reduce any Class A Borrowing Base Deficiency to zero;
(v)    fifth, on a pro rata basis, to the Class A Managing Agents to pay any Liquidation Fees, costs and other fees on the Class A Revolving Loans and expenses payable pursuant to the Credit Documents;
(vi)    sixth, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders to pay any Liquidation Fees, costs and other fees, and accrued interest calculated in accordance with Section 2.5(a)(ii) on the Class B Revolving Loans and expenses payable pursuant to the Credit Documents;
(vii)    seventh, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders in an amount necessary to reduce any Class B Borrowing Base Deficiency to zero;
(viii)    eighth, to pay to Administrative Agent, Collateral Agent or Paying Agent any costs, fees or indemnities not paid in accordance with clause (ii) above;
(ix)    ninth, to pay (A) any accrued and unpaid Servicing Fees payable to a Successor Servicer not paid in accordance with clause (i) above, and (B) any accrued and unpaid Backup Servicing Fees not paid in accordance with clause (ii) above;
(x)    tenth, to the Reserve Account an amount equal to any Reserve Account Funding Amount;
(xi)    eleventh, to pay all other Obligations or any other amount then due and payable hereunder;
(xii)     twelfth, at the election of Company, on a pro rata basis, to the Class A Managing Agents or to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders, as applicable, to repay the principal of the Class A Revolving Loans or the Class B Revolving Loans, respectively, provided, that each repayment of the Class B Revolving Loans shall be in a minimum amount of $100,000; and
(xiii)    thirteenth, prior to the Revolving Commitment Termination Date, and provided that no Borrowing Base Deficiency would occur after giving effect to such distribution, any remainder to Company or as Company shall direct consistent with Section 6.5.
(b)    Notwithstanding anything herein to the contrary, upon the occurrence and during the continuance of an Event of Default and during any Turbo Period, on each Interest

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Payment Date, all amounts in the Controlled Accounts shall be applied by the Paying Agent based on the Monthly Servicing Report as follows:
(i)    first, to Company, on a pari passu basis, (A) amounts sufficient for Company to maintain its limited liability company existence and to pay similar expenses up to an amount not to exceed $1,000 in any Fiscal Year, and only to the extent not previously distributed to Company during such Fiscal Year pursuant to Section 2.12(a)(i) or 2.12(a)(xiii) above, and (B) to pay any accrued and unpaid Servicing Fees (provided, however, that the amount of any Successor Servicer Fees payable to a Successor Servicer under this clause (i) shall not exceed $225,000 in any calendar month);
(ii)    second, on a pari passu basis, (A) to Company to pay any accrued and unpaid Backup Servicing Fees and any accrued and unpaid fees and expenses of the Custodian and the Controlled Account Bank (in respect of the Controlled Accounts), (B) to Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents, (C) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents and (D) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents, provided, however, that the aggregate amount of Backup Servicing Fees payable under this clause (ii) shall not exceed $200,000 in any Fiscal Year;
(iii)    third, on a pro rata basis, to each Class A Managing Agent the amount of accrued interest calculated in accordance with Section 2.5(a)(i) on the Class A Revolving Loans owing to its related Class A Revolving Lenders;
(iv)    fourth, on a pro rata basis, to the Class A Managing Agents until the Class A Revolving Loans are paid in full;
(v)    fifth, on a pro rata basis, to the Class A Managing Agents to pay any Senior Default Interest for such Interest Payment Date and any unpaid Senior Default Interest for any prior Interest Payment Date;
(vi)    sixth, on a pro rata basis, to the Class A Managing Agents to pay any Liquidation Fees, costs and other fees on the Class A Revolving Loans and expenses payable pursuant to the Credit Documents;
(vii)    seventh, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders to pay any Liquidation Fees, costs and other fees, and accrued interest calculated in accordance with Section 2.5(a)(ii) (but, for the avoidance of doubt, excluding any additional interest accruing under Section 2.6) on the Class B Revolving Loans and expenses payable pursuant to the Credit Documents;
(viii)    eighth, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders until the Class B Revolving Loans are paid in full;

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(ix)    ninth, on a pro rata basis, to the Class A Managing Agents to pay any additional interest accruing under Section 2.6 on the Class A Revolving Loans not paid pursuant to clause (v) above;
(x)    tenth, on a pro rata basis, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders to pay any additional interest accruing under Section 2.6 on the Class B Revolving Loans;
(xi)     eleventh, to pay (A) any accrued and unpaid Servicing Fees payable to a Successor Servicer not paid in accordance with clause (i) above, and (B) any accrued and unpaid Backup Servicing Fees not paid in accordance with clause (ii) above;
(xii)    twelfth, to pay all other Obligations or any other amount then due and payable hereunder; and
(xiii)    thirteenth, any remainder to Company.
2.13    General Provisions Regarding Payments.
(a)    All payments by Company of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and paid not later than 12:00 p.m. (New York City time) on the date due via wire transfer of immediately available funds. Funds received after that time on such due date shall be deemed to have been paid by Company on the next Business Day (provided, that any repayment made pursuant to Section 2.11(c)(vii)(B) or any application of funds by Paying Agent pursuant to Section 2.12 on any Interest Payment Date shall be deemed for all purposes to have been made in accordance with the deadlines and payment requirements described in this Section 2.13).
(b)    All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans or payments pursuant to Section 2.10) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.
(c)    Paying Agent shall promptly distribute to each Class A Managing Agent and the Class B Agent at such address as such Class A Managing Agent and such Class B Agent shall indicate in writing, the applicable Pro Rata Share of each Class A Lender Group and each Class B Revolving Lender of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Paying Agent. Each Class A Managing Agent shall allocate all payments received by it from Paying Agent under this Section 2.13(c) to the Class A Revolving Lenders in the related Class A Lender Group. Each Class B Agent shall allocate all payments received by it from Paying Agent under this Section 2.13(c) to the Class B Revolving Lenders as described in Section 2.12.
(d)    Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day

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and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.
(e)    Except as set forth in the proviso to Section 2.13(a), Paying Agent shall deem any payment by or on behalf of Company hereunder to them that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non‑conforming payment. Any such payment shall not be deemed to have been received by Paying Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Paying Agent shall give prompt notice via electronic mail to Company and Administrative Agent if any payment is non‑conforming. Any non‑conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 7.1(a). Interest shall continue to accrue on any principal as to which a non‑conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Interest Rate determined pursuant to Section 2.6 from the date such amount was due and payable until the date such amount is paid in full.
2.14    Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents, or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than such Lender would be entitled pursuant to this Agreement, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that the recovery of such Aggregate Amounts Due shall be shared by the applicable Lenders in proportion to the Aggregate Amounts Due to them pursuant to this Agreement; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Company expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all monies owing by Company to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.

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2.15    Increased Costs; Capital Adequacy.
(a)    Compensation for Increased Costs and Taxes. Subject to the provisions of Section 2.16 (which shall be controlling with respect to the matters covered thereby), in the event that any Affected Party shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Affected Party with any guideline, request or directive issued or made after the date hereof (or with respect to any Lender which becomes a Lender after the date hereof, effective after such date) by any central bank or other Governmental Authority or quasi‑Governmental Authority (whether or not having the force of law): (i) subjects such Affected Party (or its applicable lending office) to any additional Tax (other than an Excluded Tax) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Affected Party (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC or other insurance or charge or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Party; or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Affected Party (or its applicable lending office) or its obligations hereunder; and the result of any of the foregoing is to increase the cost to such Affected Party of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Affected Party (or its applicable lending office) with respect thereto; then, in any such case, if such Affected Party deems such change to be material, Company shall promptly pay to such Affected Party, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Affected Party in its sole discretion shall determine) as may be necessary to compensate such Affected Party for any such increased cost or reduction in amounts received or receivable hereunder and any reasonable expenses related thereto. Such Affected Party shall deliver to Company (with a copy to Administrative Agent and Paying Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Affected Party under this Section 2.15(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b)    Capital Adequacy Adjustment. In the event that any Affected Party shall have determined in its sole discretion (which determination shall, absent manifest effort, be final and conclusive and binding upon all parties hereto) that (i) the adoption, effectiveness, phase‑in or applicability of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or (ii) compliance by any Affected Party (or its applicable lending office) or any company controlling such Affected Party with any guideline, request or directive regarding capital adequacy

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(whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, in each case after the Amendment Effective Date, has or would have the effect of reducing the rate of return on the capital of such Affected Party or any company controlling such Affected Party as a consequence of, or with reference to, such Affected Party’s Loans or Revolving Commitments, or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Affected Party or such controlling company could have achieved but for such adoption, effectiveness, phase‑in, applicability, change or compliance (taking into consideration the policies of such Affected Party or such controlling company with regard to capital adequacy), then from time to time, within five (5) Business Days after receipt by Company from such Affected Party of the statement referred to in the next sentence, Company shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party or such controlling company on an after‑tax basis for such reduction. Such Affected Party shall deliver to Company (with a copy to Administrative Agent and Paying Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Affected Party under this Section 2.15(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error. For the avoidance of doubt, subsections (i) and (ii) of this Section 2.15 shall apply, without limitation, to all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any Governmental Authority (x) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended to the date hereof and from time to time hereafter, and any successor statute and (y) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), regardless of the date adopted, issued, promulgated or implemented.
(c)    Delay in Requests. Failure or delay on the part of any Affected Party to demand compensation pursuant to the foregoing provisions of this Section 2.15 shall not constitute a waiver of such Affected Party's right to demand such compensation, provided that Company shall not be required to compensate an Affected Party pursuant to the foregoing provisions of this Section 2.15 for any increased costs incurred or reductions suffered more than one hundred twenty (120) days prior to the date that such Affected Party notifies Company of the matters giving rise to such increased costs or reductions and of such Affected Party's intention to claim compensation therefor.
2.16    Taxes; Withholding, etc.
(a)    Payments to Be Free and Clear. Subject to Section 2.16(b), all sums payable by Company hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax imposed, levied, collected, withheld or assessed by or within the United States or any political subdivision in or of the United States or any other jurisdiction from or to which a payment is made by or on behalf of Company or by any federation or organization of which the United States or any such jurisdiction is a member at the time of payment.

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(b)    Withholding of Taxes. If Company or any other Person is required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by Company to an Affected Party under any of the Credit Documents: (i) Company shall notify Paying Agent of any such requirement or any change in any such requirement as soon as Company becomes aware of it; (ii) Company or the Paying Agent shall make such deduction or withholding and pay any such Tax to the relevant Governmental Authority before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on Company) for its own account or (if that liability is imposed on Paying Agent or such Affected Party, as the case may be) on behalf of and in the name of Paying Agent or such Affected Party; (iii) if such Tax is an Indemnified Tax, the sum payable by Company in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment (and any withholdings imposed on additional amounts payable under this paragraph), such Affected Party receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty (30) days after paying any sum from which it is required by law to make any deduction or withholding, and within thirty (30) days after the due date of payment of any Tax which it is required by clause (ii) above to pay, Company shall deliver to Paying Agent evidence satisfactory to the other Affected Parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
(c)    Indemnification by Company. Company shall indemnify each Affected Party, within ten (10) days after demand therefor, for the full amount of any additional amounts required to be paid by Company pursuant to Section 2.16(b), payable or paid by such Affected Party or required to be withheld or deducted from a payment to such Affected Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Company by an Affected Party (with a copy to the Paying Agent), or by the Paying Agent on its own behalf or on behalf of an Affected Party, shall be conclusive absent manifest error.
(d)    Indemnification by the Lenders. Each Affected Party shall severally indemnify the Paying Agent, within ten (10) days after demand therefor, for (i) any Taxes attributable to such Affected Party (but only to the extent the Company has not already indemnified the Paying Agent for such Taxes and without limiting the obligation of the Company to do so) and (ii) any Taxes attributable to such Affected Party’s failure to comply with the provisions of Section 9.6(h) relating to the maintenance of a Participant Register, in either case, that are payable or paid by the Paying Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Affected Party by the Paying Agent shall be conclusive absent manifest error. Each Affected Party hereby authorizes the Paying Agent to set off and apply any and all amounts at any time owing to such Affected Party under any Credit Document or otherwise payable by the Paying Agent to the Affected Party from any other source against any amount due to the Paying Agent.

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(e)    Evidence of Exemption From U.S. Withholding Tax.
(i)    Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non‑US Lender”) shall, to the extent it is legally entitled to do so, deliver to Paying Agent for transmission to Company, on or prior to the Original Closing Date (in the case of each Lender listed on the signature pages of the Original Credit Agreement on the Original Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Paying Agent (each in the reasonable exercise of its discretion), (A) two original copies of Internal Revenue Service Form W‑8BEN, 8BEN-E or W‑8ECI or W-8IMY (with appropriate attachments) (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to, or is eligible for a reduction in the rate of, deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (B) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver Internal Revenue Service Form W-8IMY or W‑8ECI pursuant to clause (A) above and is relying on the so called “portfolio interest exception”, a Certificate Regarding Non‑Bank Status together with two original copies of Internal Revenue Service Form W‑8BEN or 8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject, or is eligible for a reduction in the rate of, to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.16(e)(i) or Section 2.16(e)(ii) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Paying Agent for transmission to Company two new original copies of Internal Revenue Service Form W‑8BEN, 8BEN-E, W‑8IMY, or W‑8ECI, or, if relying on the “portfolio interest exception”, a Certificate Regarding Non‑Bank Status and two original copies of Internal Revenue Service Form W‑8BEN or 8BEN-E (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to confirm or establish that such Lender is not subject to, or is eligible for a reduction in the rate of, deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Paying Agent and Company of its inability to deliver any such forms, certificates or other evidence. Company shall not be required to pay any additional amount in respect of U.S. Federal withholding taxes to any Non‑US Lender under Section 2.16(b)(iii) if such Lender shall have failed (1) to deliver any forms, certificates or other evidence referred to in this Section

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2.16(e)(i) or Section 2.16(e)(ii), or (2) to notify Paying Agent and Company of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have satisfied the requirements of the first sentence of this Section 2.16(e)(i) and Section 2.16(e)(ii) on the Original Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section 2.16(e)(i) shall relieve Company of its obligation to pay any additional amounts pursuant to this Section 2.16 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.
(ii)    Any Lender that is a U.S. Person shall deliver to Company and the Paying Agent on or prior to the Original Closing Date or the date on which such Lender becomes a Lender under this Agreement pursuant to an Assignment Agreement (and from time to time thereafter upon the reasonable request of Company or the Paying Agent), executed originals of IRS Form W-9 certifying that such Lender is a U.S. Person and exempt from U.S. federal backup withholding tax.
(iii)    If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Company and the Paying Agent at the time or times reasonably requested by Company or the Paying Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Company or the Paying Agent as may be necessary for Company and the Paying Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(e)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv)    The Class B Agent shall deliver to the Paying Agent and the Company such information as is required to be delivered by the Administrative Agent pursuant to this Section 2.16.
2.17    Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.15 or 2.16, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.15 or 2.16 would be materially reduced and if, as

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determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments or Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments or Loans or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.17 unless Company agrees to pay all reasonable and incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Company pursuant to this Section 2.17 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be conclusive absent manifest error.
2.18    Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that other than at the direction or request of any regulatory agency or authority, any Lender defaults (in each case, a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan (in each case, a “Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall be applied to the Revolving Loans of other Lenders of the applicable Class as if such Defaulting Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the Revolving Loans of the applicable Class shall be applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) of such Class as if such Defaulting Lender had funded all Defaulted Loans of such Class of such Defaulting Lender, it being understood and agreed that Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans of the applicable Class that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b); (c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating any Revolving Commitment fee payable to Lenders in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee pursuant to Section 2.7 with respect to such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of Class A Revolving Commitments or the Total Utilization of Class B Revolving Commitments, as applicable, as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.18, performance by Company of its obligations hereunder and the other Credit Documents shall not be excused or otherwise modified as a result of any Funding Default or the operation of this Section 2.18. The rights and remedies against a Defaulting Lender under this Section 2.18 are in addition to other rights and remedies which Company may have against such Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default or violation of Section 8.5(c).

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2.19    Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased‑Cost Lender”) shall give notice to Company that such Lender is entitled to receive payments under Section 2.15 or 2.16, (ii) the circumstances which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Company’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five (5) Business Days after Company’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 9.5(b), the consent of Administrative Agent and Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non‑Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased‑Cost Lender, Defaulting Lender or Non‑Consenting Lender (the “Terminated Lender”), Company may, by giving written notice to any Terminated Lender of its election to do so, elect to cause such Terminated Lender and, if applicable, each Class A Revolving Lender in such Terminated Lender's Class A Lender Group (and such Terminated Lender and, if applicable, each other such Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees identified by Company (each a “Replacement Lender”) in accordance with the provisions of Section 9.6; provided, (1) on the date of such assignment, the Replacement Lender shall pay to the Terminated Lender and, if applicable, such other Lenders, an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender and, if applicable, such other Lenders, and (B) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender and, if applicable, such other Lenders, pursuant to Section 2.7; (2) on the date of such assignment, Company shall pay any amounts payable to such Terminated Lender and, if applicable, such other Lenders pursuant to Section 2.15 or 2.16 and any other amounts due to such Terminated Lender and, if applicable, such other Lenders; and (3) in the event such Terminated Lender is an Increased-Cost Lender, such assignment will result in a reduction in any claims for payments under Section 2.15 or 2.16, as applicable, and (4) in the event such Terminated Lender is a Non‑Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non‑Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and, if applicable, such other Lenders and the termination of such Terminated Lender’s Revolving Commitments and, if applicable, the Revolving Commitments of such other Lenders, such Terminated Lender and, if applicable, such other Lenders shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender and, if applicable, such other Lenders to indemnification hereunder shall survive as to such Terminated Lender and such other Lenders.
2.20    The Paying Agent.
(a)    The Lenders hereby appoint Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 2.12 shall be made by the Paying Agent based on the Monthly Servicing Report.

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(b)    The Company shall pay to the Paying Agent the applicable fees payable pursuant to the Fee Letter with the Paying Agent.
(c)    The Paying Agent hereby agrees that, subject to the provisions of this Section, it shall:
(i)    hold any sums held by it for the payment of amounts due with respect to the 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 herein provided and pay such sums to such Persons as herein provided;
(ii)    give the Administrative Agent, each Class A Managing Agent and the Class B Agent notice of any default by the Company in the making of any payment required to be made with respect to the Obligations of which it has actual knowledge;
(iii)    comply with all requirements of the Internal Revenue Code and any applicable State law with respect to the withholding from any payments made by it in respect of any Obligations of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith; and
(iv)    provide to the Agents such information as is required to be delivered under the Internal Revenue Code or any State law applicable to the particular Paying Agent, relating to payments made by the Paying Agent under this Agreement.
(d)    Each Paying Agent (other than the initial Paying Agent) shall be appointed by the Lenders with the prior written consent of the Company.
(e)    The Company shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any loss, liability or expense incurred, other than in connection with the willful misconduct, fraud, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement. All such amounts shall be payable in accordance with Section 2.12 and such indemnity shall survive the termination of this Agreement and the resignation or removal of the Paying Agent.
(f)    The Paying Agent undertakes to perform such duties, and only such duties, as are expressly set forth in this Agreement. No implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Paying Agent pursuant to and conforming to the requirements of this Agreement.
(g)    The Paying Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the direction or request of Requisite Lenders or the Administrative Agent,

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or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, no longer subject to appeal or review.
(h)    The Paying Agent shall not be charged with knowledge of any Default or Event of Default unless an authorized officer of the Paying Agent obtains actual knowledge of such event or the Paying Agent receives written notice of such event from the Company, the Servicer, any Secured Party or any Agent, as the case may be. The receipt and/or delivery of reports and other information under this Agreement by the Paying Agent shall not constitute notice or actual or constructive knowledge of any Default or Event of Default contained therein.
(i)    The Paying Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Company under this Agreement.
(j)    The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer, any Monthly Servicing Report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(k)    The Paying Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(l)    The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent or any Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or such Agent shall have offered to the Paying Agent security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(m)    Except as otherwise expressly set forth in Section 2.21, the Paying Agent 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, unless requested in writing so to do by a Lender, a Class A Managing Agent or the Administrative Agent; provided, that if the payment within a reasonable time to the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Paying Agent, not reasonably assured by the Company, the Paying Agent may require reasonable indemnity against such cost, expense or liability as a

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condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Paying Agent, shall be reimbursed by the Company to the extent of funds available therefor pursuant to Section 2.12.
(n)    The Paying Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Company, the Servicer, any Agent, any Lender or any other Person.
(o)    Any Person into which the Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Paying Agent shall be a party, or any Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, 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.
(p)    The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Collateral.
(q)    If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Company or the Servicer or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. The Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Paying Agent harmless from any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose.
(r)    The Paying Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Paying Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(s)    The Paying Agent may: (i) terminate its obligations as Paying Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Company, the Servicer and the Administrative Agent; provided, however, that, without the consent of the Administrative Agent, such resignation shall not be effective until a successor Paying Agent reasonably acceptable to the Administrative Agent and Company shall have accepted

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appointment by the Lenders as Paying Agent, pursuant hereto and shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time by written demand, of the Requisite Lenders, delivered to the Paying Agent, the Company and the Servicer. In the event of such termination or removal, the Lenders with the consent of the Company shall appoint a successor paying. If, however, a successor paying agent is not appointed by the Lenders within ninety (90) days after the giving of notice of resignation, the Paying Agent may petition a court of competent jurisdiction for the appointment of a successor Paying Agent.
(t)    Any successor Paying Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Company, the Servicer, the Administrative Agent, and to the predecessor Paying Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Paying Agent shall become effective and such successor Paying Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Paying Agent under this Agreement, with like effect as if originally named as Paying Agent. The predecessor Paying Agent shall upon payment of its fees and expenses deliver to the successor Paying Agent all documents and statements and monies held by it under this Agreement; and the Company and the predecessor Paying Agent shall execute and deliver such instruments and do such other things as may reasonably be requested for fully and certainly vesting and confirming in the successor Paying Agent all such rights, powers, duties, and obligations.
(u)    The Company shall reimburse the Paying Agent for the reasonable out-of-pocket expenses of the Paying Agent incurred in connection with the succession of any successor Paying Agent including in transferring any funds in its possession to the successor Paying Agent.
(v)    The Paying Agent shall have no obligation to invest and reinvest any cash held in the Controlled Accounts or any other moneys held by the Paying Agent pursuant to this Agreement in the absence of timely and specific written investment direction from Company. In no event shall the Paying Agent be liable for the selection of investments or for investment losses incurred thereon. The Paying Agent shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Company to provide timely written investment direction.
(w)    If the Paying Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the parties hereto pursuant to this Agreement which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, the Paying Agent shall be entitled (without incurring any liability therefor to the Company or any other Person) to (i) consult with outside counsel of its choosing and act or refrain from acting based on the advice of such counsel and (ii) refrain from taking any action until it shall be directed otherwise in writing by all of the parties hereto or by final order of a court of competent jurisdiction.
(x)    The Paying Agent shall incur no liability nor be responsible to Company or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be limited to, acts of God, strikes, work stoppages,

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acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(y)    The Paying Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Paying Agent shall not be responsible for any misconduct or negligence on the part of or for the supervision of any agent or attorney appointed with due care by it hereunder.
(z)    The Lenders hereby authorize and direct the Paying Agent to execute and deliver the Undertakings Agreement.
2.21    Duties of Paying Agent.
(a)    Borrowing Base Reports. Upon receipt of any Borrowing Base Report and the related Borrowing Base Certificate delivered pursuant to Section 2.1(d)(ii), Section 2.11(c)(vii)(B) or Section 2.11(c)(vii)(C), Paying Agent shall, on the Business Day following receipt of such Borrowing Base Report, to the extent that Paying Agent has access to all information necessary to perform the duties set forth herein:
(i)    compare the beginning Eligible Portfolio Outstanding Principal Balance set forth in such Borrowing Base Report with the aggregate Outstanding Principal Balance of the Eligible Receivables listed in the Master Record and identify any discrepancy;
(ii)    compare the number of Pledged Receivables listed in the Master Record with the number of Pledged Receivables provided to the Paying Agent by the Custodian pursuant to Section 4.3 of the Custodial Agreement as the number of Pledged Receivables for which the Custodian holds a Receivables File pursuant to the Custodial Agreement and identify any discrepancy;
(iii)    confirm that each Pledged Receivable listed in the Master Record has a unique loan identification number;
(iv)     compare the amount set forth in such Borrowing Base Report as the amount on deposit in the Collection Account with the amount shown on deposit in the Collection Account and identify any discrepancy;
(v)    in the case of a Borrowing Base Report delivered pursuant to Section 2.11(c)(vii)(B) or Section 2.11(c)(vii)(C), recalculate the amount set forth in such Borrowing Base Report as the amount that will be on deposit in the Collection Account after giving effect to the related repayment of Loans or the related purchase of Eligible Receivables set forth therein and identify any discrepancy;
(vi)    confirm that the Accrued Interest Amount and an estimate of accrued fees as of the date of repayment or the Transfer Date, as the case may be, multiplied by 105%, is the amount set forth in such Borrowing Base Request as 105% of the estimated amount of accrued interest and fees and identify any discrepancy;

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(vii)    recalculate the Class A Revolving Availability and the Class B Revolving Availability based on the Class A Borrowing Base and the Class B Borrowing Base set forth in such Borrowing Base Report and the Total Utilization of Class A Revolving Commitments and the Total Utilization of Class B Revolving Commitments set forth in the Paying Agent’s records and identify any discrepancies;
(viii)    in the case of a Borrowing Base Report delivered pursuant to Section 3.3(a)(i), (A) confirm that the Class A Revolving Loans requested in the related Funding Request are not greater than the Class A Revolving Availability and the amount of Class B Revolving Loans requested in the related Funding Request are not greater than the Class B Revolving Availability and (B) confirm that, after giving effect to such Revolving Loans, the Total Utilization of Class A Revolving Loans will not exceeds the Class A Revolving Commitments and the Total Utilization of Class B Revolving Loans will not exceed the Class B Revolving Commitments; and
(xii)    notify the Class A Managing Agents and the Class B Agent of the results of such review.
(b)    Monthly Servicing Reports. Upon receipt of any Monthly Servicing Report delivered pursuant to Section 5.1(e), Paying Agent shall, to the extent that Paying Agent has access to all information necessary to perform the duties set forth herein:
(i)    compare the Eligible Portfolio Outstanding Principal Balance set forth therein with the aggregate Outstanding Principal Balance of the Eligible Receivables listed in the Master Record and identify any discrepancy;
(ii)    confirm the aggregate repayments of Revolving Loans during the period covered by the Monthly Servicing Report set forth therein with the Borrowing Base Reports delivered to Paying Agent pursuant to Section 2.11(c)(vii)(B) during such period and identify any discrepancies;
(iii)    compare the amount set forth therein as the amount on deposit in the Collection Account with the amount shown on deposit in the Collection Account and identify any discrepancy;
(iv)    compare the amount of accrued and unpaid interest and unused fees payable to the Class A Revolving Lenders and the amount of accrued and unpaid interest and unused fees payable to the Class B Revolving Lenders, respectively, set forth therein to the amounts set forth in the related invoices received by Paying Agent and identify any discrepancies;
(v)    compare the amount of Servicing Fees payable to the Servicer set forth therein to the amount set forth in the related invoice received by Paying Agent and identify any discrepancy;

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(vi)    compare the amount of Backup Servicing Fees and expenses payable to the Backup Servicer set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(vii)    compare the amount of fees and expenses payable to the Custodian set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(viii)    compare the amount of fees and expenses payable to the Collateral Agent set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(ix)    compare the amount of fees and expenses payable to the Paying Agent set forth therein to the amounts set forth in the related invoice submitted by Paying Agent and identify any discrepancy;
(x)    recalculate the Class A Revolving Availability and the Class B Revolving Availability based on the Class A Borrowing Base and the Class B Borrowing Base set forth therein and the Total Utilization of Class A Revolving Commitments and the Total Utilization of Class B Revolving Commitments set forth in the Paying Agent’s records and identify any discrepancies; and
(xi)    notify the Class A Managing Agents and the Class A Agent of the results of such review.
(c)    Direct Competitor List. The Paying Agent shall maintain the List of Direct Competitors described in clause (a) of the definition of “Direct Competitor”, and upon receipt of any update to such list as described in such definition, the Paying Agent shall promptly notify the Administrative Agent and each Lender of such update (and thereafter the Paying Agent shall maintain the List of Direct Competitors as so updated).
(d)    For the avoidance of doubt, Paying Agent’s sole responsibility with respect to the obligations set forth in Sections 2.21(a) and (b) is to compare or confirm information in the Borrowing Base Report or Monthly Servicing Report, as applicable, in accordance with Section 2.21 based on the information indicated therein received by Paying Agent from Company, the Servicer or the Custodian, as the case may be. Paying Agent’s sole responsibility with respect to the obligations set forth in Sections 2.21(c) is to maintain and provide notice of updates to the list described therein as required by the terms of such Section.

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2.22    Intention of Parties. It is the intention of the parties that the Loans be characterized as indebtedness for federal income tax purposes. The terms of the Loans shall be interpreted to further this intention and neither the Lenders nor Company will take an inconsistent position on any federal, state or local tax return.
SECTION 3.    CONDITIONS PRECEDENT
3.1    Conditions Precedent to Effectiveness of the Existing Credit Agreement. The Existing Credit Agreement became effective on the Second Amendment Effective Date subject to the satisfaction of the conditions precedent set forth in Section 3.2 of the Existing Credit Agreement.
3.2    Conditions Precedent to Effectiveness of the Third Amended and Restated Credit Agreement. The amendment and restatement of the Existing Credit Agreement provided for hereby shall become effective on the Amendment Effective Date subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions on or before the Amendment Effective Date:
(a)    Credit Documents and Related Agreements. Each Class A Managing Agent and the Class B Agent shall have received copies of this Agreement, the Class B Revolving Loan Note, the Undertakings Agreement and each Fee Letter dated as of the Amendment Effective Date (collectively, the “Credit Document Amendments”), originally executed and delivered by each applicable Person.
(b)    Organizational Documents; Incumbency. Each Class A Managing Agent and the Class B Agent shall have received (i) copies of each Organizational Document executed and delivered by Company and Holdings, as applicable, and, to the extent applicable, (x) certified as of the Amendment Effective Date or a recent date prior thereto by the appropriate governmental official and (y) certified by its secretary or an assistant secretary as of the Amendment Effective Date, in each case as being in full force and effect without modification or amendment; (ii) signature and incumbency certificates of the officers of such Person executing the Credit Document Amendments to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each of Company and Holdings approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Document Amendments to which it is a party or by which it or its assets may be bound as of the Amendment Effective Date, certified as of the Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each of Company and Holdings’ jurisdiction of incorporation, organization or formation and, with respect to Company, in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Amendment Effective Date; and (v) such other documents as any Class A Managing Agent may reasonably request.
(c)    Reserved.

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(d)    Transaction Costs. On or prior to the Amendment Effective Date, Company shall have delivered to Administrative Agent, each Class A Managing Agent and the Class B Agent Company’s reasonable best estimate of the Transaction Costs (other than fees payable to any Agent).
(e)    Governmental Authorizations and Consents. Company and Holdings shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to be obtained by them, in connection with the transactions contemplated by the Credit Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to each Class A Managing Agent and the Class B Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(f)    Opinions of Counsel to Company and Holdings. Each Class A Managing Agent and the Class B Agent and counsel to Administrative Agent shall have received originally executed copies of the favorable written opinions of DLA Piper (US) LLP, counsel for Company and Holdings, as to such other matters as any Class A Managing Agent or Class B Revolving Lender may reasonably request, dated as of the Amendment Effective Date and otherwise in form and substance reasonably satisfactory to each Class A Managing Agent and the Class B Agent (and Company hereby instructs, and Holdings shall instruct, such counsel to deliver such opinions to Agents and Lenders).
(h)    Fees. Company shall have paid all fees payable by it on the Amendment Effective Date pursuant to the Fee Letters (which amounts may be paid with the proceeds of a Credit Extension).
(i)    Amendment Effective Date Certificate. Holdings and Company shall have delivered to each Class A Managing Agent and the Class B Agent an originally executed Amendment Effective Date Certificate, together with all attachments thereto.
(k)    No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable discretion of any Class A Managing Agent or the Class B Agent, singly or in the aggregate, materially impairs any of the transactions contemplated by the Credit Documents or that would reasonably be expected to result in a Material Adverse Effect.
(l)    No Material Adverse Change. Since December 31, 2015, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
(m)    No Default or Event of Default. No Default, Event of Default or Servicer Default shall have occurred and be continuing.

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(n)    Rating of Revolving Loans. The Class A Managing Agent for the Deutsche Bank Class A Lender Group shall have received a letter from DBRS, Inc. to the effect that the Class A Revolving Loans are rated “A(low).” The Class B Agent for the Class B Revolving Lenders shall have received a letter from DBRS, Inc. to the effect that the Class B Revolving Loans are rated “BBB(low).”
(o)    Completion of Proceedings. All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto shall be satisfactory in form and substance to each Class A Managing Agent and counsel to Administrative Agent, and each Class A Managing Agent and counsel to Administrative Agent shall have received all such counterpart originals or certified copies of such documents as they may reasonably request.
Each Agent and Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.
3.3    Conditions to Each Credit Extension.
(a)    Conditions Precedent. The obligation of each Lender to make any Loan on any Credit Date is subject to the satisfaction, or waiver in accordance with Section 9.5, of any condition set forth in the Undertakings Agreement and the following conditions precedent:
(i)    Administrative Agent, Paying Agent, Custodian, each Class A Managing Agent and the Class B Agent shall have received a fully executed and delivered Funding Notice together with a Borrowing Base Certificate, evidencing sufficient Revolving Availability with respect to the requested Loans, and a Borrowing Base Report;
(ii)    both before and after making any Revolving Loans requested on such Credit Date, the Total Utilization of Class A Revolving Commitments shall not exceed the Class A Borrowing Base and the Total Utilization of Class B Revolving Commitments shall not exceed the Class B Borrowing Base;
(iii)    as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, other than those representations and warranties which are qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects on and as of that Credit Date, except, in each case, to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects, or true and correct in all respects, as the case may be on and as of such earlier date, provided, that the representations and warranties in any Original Borrowing Base Certificate shall be excluded from the certification in this Section 3.3(a)(iii) to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(d)(ii);

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(iv)    as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v)    the Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent shall have received the Borrowing Base Report for the Business Day prior to the Credit Date which shall be delivered on a pro forma basis for the first Credit Date hereunder;
(vi)    in accordance with the terms of the Custodial Agreement, Company has delivered, or caused to be delivered to the Custodian, the Receivable File related to each Receivable that is, on such Credit Date, being transferred and delivered to Company pursuant to the Asset Purchase Agreement, and the Collateral Agent has received a Collateral Receipt and Exception Report from the Custodian, which Collateral Receipt and Exception Report is acceptable to the Collateral Agent in its Permitted Discretion.
Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the Permitted Discretion of such Agent or Requisite Lenders such request is warranted under the circumstances.
Notwithstanding anything contained herein to the contrary, the Paying Agent shall not be responsible or liable for determining whether any conditions precedent to making a Loan have been satisfied.
(b)    Notices. Any Funding Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent.
SECTION 4.    REPRESENTATIONS AND WARRANTIES
In order to induce Agents and Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, Company represents and warrants to each Agent and Lender that (i) each and every of its representations and warranties contained in the Existing Credit Agreement was true and correct as of the Second Amendment Effective Date and each Credit Date thereafter prior to the Amendment Effective Date (excluding any representation and warranty (A) that was breached, directly or indirectly, solely as a result of a breach or failure to comply with Section 4.23 of the Existing Asset Purchase Agreement or (B) contained in Section 4.7 of the Existing Credit Agreement that was breached by Company as a result of the breach by Holdings of a representation and warranty contained in Part 1 of Schedule A to the Existing Asset Purchase Agreement if Holdings shall have satisfied its obligations in respect of such breach under Section 3.01(b) of the Existing Asset Purchase Agreement), and (ii) on the Amendment Effective Date, each Credit Date after the Amendment Effective Date and on each Transfer Date, that the following statements are true and correct:
4.1    Organization; Requisite Power and Authority; Qualification; Other Names. Company (a) is duly organized or formed, validly existing and in good standing under the laws of

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its jurisdiction of organization or formation as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and would not reasonably be expected to result in a Material Adverse Effect. Company does not operate or do business under any assumed, trade or fictitious name. Company has no Subsidiaries.
4.2    Capital Stock and Ownership. The Capital Stock of Company has been duly authorized and validly issued and is fully paid and non‑assessable. As of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Company is a party requiring, and there is no membership interest or other Capital Stock of Company outstanding which upon conversion or exchange would require, the issuance by Company of any additional membership interests or other Capital Stock of Company or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of Company. Schedule 4.2 correctly sets forth the ownership interest of Company as of the Amendment Effective Date.
4.3    Due Authorization. The execution, delivery and performance of the Credit Documents to which Company is a party have been duly authorized by all necessary action of Company.
4.4    No Conflict. The execution, delivery and performance by Company of the Credit Documents to which it is party and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate in any material respect any provision of any law or any governmental rule or regulation applicable to Company, any of the Organizational Documents of Company, or any order, judgment or decree of any court or other Governmental Authority binding on Company; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Company; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Company (other than any Permitted Liens); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Company, except for such approvals or consents which have been obtained.
4.5    Governmental Consents. The execution, delivery and performance by Company of the Credit Documents to which Company is a party and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Original Closing Date other than (a) those that have already been obtained and are in full force and effect, or (b) any consents or approvals the failure of which to obtain will not have a Material Adverse Effect.

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4.6    Binding Obligation. Each Credit Document to which Company is a party has been duly executed and delivered by Company and is the legally valid and binding obligation of Company, enforceable against Company in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
4.7    Eligible Receivables. Each Receivable that is identified by Company as an Eligible Receivable in a Borrowing Base Certificate satisfies all of the criteria set forth in the definition of Eligibility Criteria (other than any Receivable identified as an Eligible Receivable in any Original Borrowing Base Certificate to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(d)(ii)).
4.8    Historical Financial Statements. The Historical Financial Statements and any financial statements delivered to the Agents and the Lenders pursuant Section 5.1(b) or (c) after the Amendment Effective Date were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year‑end adjustments.
4.9    Reserved.
4.10    No Material Adverse Effect. Since December 31, 2015, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
4.11    Adverse Proceedings, etc. There are no Adverse Proceedings (other than counter claims relating to ordinary course collection actions by or on behalf of Company) pending against Company that challenges Company’s right or power to enter into or perform any of its obligations under the Credit Documents to which it is a party or that individually or in the aggregate are material to Company.  Company is not (a) in violation of any applicable laws in any material respect, or (b) subject to or in default with respect to any judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other Governmental Authority.
4.12    Payment of Taxes. Except as otherwise permitted under Section 5.3, all material tax returns and reports of Company required to be filed by it have been timely filed, and all material taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon Company and upon its properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. Company knows of no proposed tax assessment against Company which is not being actively contested by Company in good faith and by appropriate proceedings; provided, such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

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4.13    Title to Assets. Company has no fee, leasehold or other property interests in any real property assets. Company has good and valid title to all of its assets reflected in the most recent financial statements delivered pursuant to Section 5.1. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens. All Liens purported to be created in any Collateral pursuant to any Collateral Document in favor of Collateral Agent are First Priority Liens.
4.14    No Indebtedness. Company has no Indebtedness, other than Indebtedness incurred under (or contemplated by) the terms of this Agreement or otherwise permitted hereunder.
4.15    No Defaults. Company is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists which, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, would not reasonably be expected to result in a Material Adverse Effect.
4.16    Material Contracts. Company is not a party to any Material Contracts.
4.17    Government Contracts. Company is not a party to any contract or agreement with any Governmental Authority, and the Pledged Receivables are not subject to the Federal Assignment of Claims Act (31 U.S.C. Section 3727) or any similar state or local law.
4.18    Governmental Regulation. Company is not subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. Company is not a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.
4.19    Margin Stock. Company is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to Company will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
4.20    Employee Benefit Plans. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. Company does not maintain or contribute to any Employee Benefit Plan.
4.21    Certain Fees. No broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby.
4.22    Solvency; Fraudulent Conveyance. Company is and, upon the incurrence of any Credit Extension by Company on any date on which this representation and warranty is made, will

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be, Solvent. Company is not transferring any Collateral with any intent to hinder, delay or defraud any of its creditors. Company shall not use the proceeds from the transactions contemplated by this Agreement to give preference to any class of creditors. Company has given fair consideration and reasonably equivalent value in exchange for the sale of the Receivables by Holdings under the Asset Purchase Agreement.
4.23    Compliance with Statutes, etc. Company is in compliance in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property.
4.24    Matters Pertaining to Related Agreements.
(a)    Delivery. Company has delivered, or caused to be delivered, to each Agent and each Lender complete and correct copies of (i) each Related Agreement and of all exhibits and schedules thereto as of the Original Closing Date, and (ii) copies of any material amendment, restatement, supplement or other modification to or waiver of each Related Agreement entered into after the Original Closing Date.
(b)    The Asset Purchase Agreement creates a valid transfer and assignment to Company of all right, title and interest of Holdings in and to all Pledged Receivables and all Related Security conveyed to Company thereunder and Company has a First Priority perfected security interest therein. Company has given reasonably equivalent value to Holdings in consideration for the transfer to Company by Holdings of the Pledged Receivables and Related Security pursuant to the Asset Purchase Agreement.
(c)    Each Receivables Program Agreement creates a valid transfer and assignment to Holdings of all right, title and interest of the Receivables Account Bank in and to all Receivables and Related Security conveyed or purported to be conveyed to Holdings thereunder. Holdings has given reasonably equivalent value to the Receivables Account Bank in consideration for the transfer to Holdings by the Receivables Account Bank of the Receivables and Related Security pursuant to the applicable Receivables Program Agreement.
4.25    Disclosure. No documents, certificates, written statements or other written information furnished to Lenders by or on behalf of Holdings or Company for use in connection with the transactions contemplated hereby, taken as a whole, contains any untrue statement of a material fact, or taken as a whole, omits to state a material fact (known to Holdings or Company, in the case of any document not furnished by either of them) necessary in order to make the statements contained therein not misleading in light of the circumstances in which the same were made, provided, that, projections and pro forma financial information contained in such materials were prepared based upon good faith estimates and assumptions believed by the preparer thereof to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material.

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4.26    Patriot Act. To the extent applicable, Company and Holdings are in compliance, in all material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the “Act”). No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended to the date hereof and from time to time hereafter, and any successor statute.
4.27    Remittance of Collections. Company represents and warrants that each remittance of Collections by it hereunder to any Agent, any Class A Managing Agent or any Lender hereunder will have been (a) in payment of a debt incurred by Company in the ordinary course of business or financial affairs of Company and (b) made in the ordinary course of business or financial affairs.
SECTION 5.    AFFIRMATIVE COVENANTS
Company covenants and agrees that until the Termination Date, Company shall perform (or cause to be performed, as applicable) all covenants in this Section 5.
5.1    Financial Statements and Other Reports. Unless otherwise provided below, Company or its designee will deliver to each Agent and each Lender:
(a)    Reserved.
(b)    Quarterly Financial Statements. Promptly after becoming available, and in any event within forty-five (45) days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter) of each Fiscal Year, the consolidated balance sheet of (i) Holdings and (ii) the Company, in each case, as at the end of such Fiscal Quarter and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings and Company, in each case, for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Financial Officer Certification with respect thereto;
(c)    Annual Financial Statements. Promptly after becoming available, and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheets of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification with respect thereto; and (ii) with respect to such consolidated financial statements a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Holdings, and reasonably satisfactory to the Administrative Agent (which report shall be unqualified as to going concern

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and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Holdings as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards) (such report shall also include (x) a detailed summary of any audit adjustments; (y) a reconciliation of any audit adjustments or reclassifications to the previously provided quarterly financials; and (z) restated quarterly financials for any impacted periods); and (iii) the balance sheets of Company as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Company for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification with respect thereto;
(d)    Compliance Certificates. Together with each delivery of financial statements of each of Holdings and Company pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
(e)    Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of (i) Holdings and (ii) Company delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to Administrative Agent;
(f)    Collateral Reporting.
(i)    On each Monthly Reporting Date, with each Funding Notice, and at such other times as any Agent or Lender shall request in its Permitted Discretion, a Borrowing Base Certificate (calculated as of the close of business of the previous Monthly Period or as of a date no later than three (3) Business Days prior to such request), together with a reconciliation to the most recently delivered Borrowing Base Certificate and Borrowing Base Report, in form and substance reasonably satisfactory to Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent. Each Borrowing Base Certificate delivered to Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent shall bear a signed statement by an Authorized Officer certifying the accuracy and completeness in all material respects of all information included therein. The execution and delivery of a Borrowing Base Certificate (other than any Original Borrowing Base Certificate to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(d)(ii)) shall in each instance constitute a representation and warranty by Company to Administrative Agent, Paying Agent, each Class A Managing Agent and each Class B Revolving Lender that each Receivable included

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therein as an “Eligible Receivable” is, in fact, an Eligible Receivable. In the event any request for a Loan, or a Borrowing Base Certificate or other information required by this Section 5.1(f) is delivered to Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent by Company electronically or otherwise without signature, such request, or such Borrowing Base Certificate or other information shall, upon such delivery, be deemed to be signed and certified on behalf of Company by an Authorized Officer and constitute a representation to Administrative Agent, Paying Agent, each Class A Managing Agent and each Class B Revolving Lender as to the authenticity thereof. The Administrative Agent shall have the right to review and adjust any such calculation of the Borrowing Base to reflect exclusions from Eligible Receivables or such other matters as are necessary to determine the Borrowing Base, but in each case only to the extent the Administrative Agent is expressly provided such discretion by this Agreement.
(ii)    On each Monthly Reporting Date, (A) the Monthly Servicing Report to Administrative Agent, Paying Agent, each Class A Managing Agent and the Class B Agent on the terms and conditions set forth in the Servicing Agreement, and (B) the Master Record to the Paying Agent. Notwithstanding any other provision of the Credit Documents, no Lender or Agent (other than the Paying Agent) shall have a right to receive the Master Record.
(g)    Legal Update. Together with each delivery of a Compliance Certificate pursuant to Section 5.1(d) and otherwise promptly upon any Authorized Officer’s knowledge thereof, written notice of the occurrence of any material legal developments reasonably expected to have a significant adverse impact on Holdings’ commercial loan program (or, if there are no such material legal developments since the last update provided by Company pursuant to this Section 5.1(g), a written confirmation that there are no such legal developments since such last update).
(h)    Notice of Default. Promptly upon an Authorized Officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Holdings or Company with respect thereto; (ii) that any Person has given any notice to Holdings or Company or taken any other action with respect to any event or condition set forth in Section 7.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Holdings or Company, as applicable, has taken, is taking and proposes to take with respect thereto;
(i)    Notice of Litigation. Promptly upon an Authorized Officer of Company obtaining knowledge of an Adverse Proceeding (whether pending or, to the knowledge of Company or Holdings, threatened in writing) (i) against Company, Holdings, or any Subsidiary thereof or any of their respective property, whether not previously disclosed in writing by Company to Lenders or any material development in any such Adverse Proceeding (including any adverse ruling or significant adverse development in any Adverse Proceeding) that would be reasonably expected

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to have a significant adverse impact on Company or Holdings or any Subsidiary thereof, or (ii) otherwise affecting Company, Holdings, or any Subsidiary thereof or any of their respective property that would be reasonably expected to result in a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to Company or Holdings to enable Lenders and their counsel to evaluate such matters;
(j)    ERISA. (i) Promptly upon an Authorized Officer of Company becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each affected Pension Plan; (2) all notices received by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any affected Employee Benefit Plan of Holdings or any of its Subsidiaries thereof, or, with respect to any affected Pension Plan or affected Multiemployer Plan, any of their respective ERISA Affiliates (with respect to an affected Multiemployer Plan, to the extent that Holdings or the Subsidiary or ERISA Affiliate, as applicable, has rights to access such documents, reports or filings), as any Agent or Lender shall reasonably request;
(k)    Reserved;
(l)     Reserved;
(m)    Information Regarding Collateral. Prior written notice to Collateral Agent of any change (i) in Company’s corporate name, (ii) in Company’s identity, corporate structure or jurisdiction of organization, or (iii) in Company’s Federal Taxpayer Identification Number. Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Collateral Documents;
(n)    Public Reporting. The obligations in Sections 5.1(b) and (c) in respect of Holdings’ financial statements may be satisfied by furnishing, at the option of Holdings, the applicable financial statements as described above or Holdings’ Annual Report on Form 10-K or Holdings’ Quarterly Report on Form 10-Q, as filed with the SEC, as applicable;
(o)    Other Information.
(i)    not later than Friday of each week (or if such day is not a Business Day, the immediately preceding Business Day) in which a Borrowing Base Report has not otherwise been delivered hereunder, a Borrowing Base Report; and

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(ii)    such material information and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested by any Agent or Lender, in each case, which relate to Company’s or Holdings’ financial or business condition or the Collateral.
5.2    Existence. Except as otherwise permitted under Section 6.8, Company will at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business.
5.3    Payment of Taxes and Claims. Company will pay all material Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim. Company will not file or consent to the filing of any consolidated income tax return with any Person (other than Holdings or any of its Subsidiaries). In addition, Company agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by any Governmental Authority that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any Credit Document.
5.4    Insurance. Company shall cause Holdings to maintain or cause to be maintained, with financially sound and reputable insurers, (a) all insurance required to be maintained under the Servicing Agreement, (b) business interruption insurance reasonably satisfactory to Administrative Agent, and (c) casualty insurance, such public liability insurance, third party property damage insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self‑insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Each Agent and Lender hereby agrees and acknowledges that the insurance maintained by Holdings on the Original Closing Date satisfies the requirements set forth in this Section 5.4.
5.5    Inspections; Compliance Audits; Regulatory Review.
(a)    Company will permit or cause to be permitted, as applicable, any authorized representatives designated by any Agent or any Lender to visit and inspect any of the properties of Company or Holdings, at any time, and from time to time upon reasonable advance notice and during normal working hours, to (i) inspect, copy and take extracts from its financial and accounting

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records, and to discuss its affairs, finances and accounts with any Person, including, without limitation, employees of Company or Holdings and independent public accountants and (ii) verify the compliance by Company or Holdings with the Credit Agreement, the other Credit Documents and/or the Underwriting Policies, as applicable. Company agrees to pay Agents’ then customary charge for field examinations and audits and the preparation of reports thereof performed or prepared (A) at any time during the existence of a Default or an Event of Default and (B) otherwise up to three (3) times in any calendar year, provided Company shall not be obligated to pay more than $150,000 in the aggregate during any twelve-month period in connection with any examination or audit described in this Section 5.5(a)(ii)(B). If any Agent engages any independent certified public accountants or other third-party provider to prepare any such report, such Agent shall make such report available to any Class A Manager or Lender, upon request, provided, that delivery of any such report may be conditioned on prior receipt by such independent certified public accountants or other third party provider of the acknowledgements and agreements that such independent certified public accountants or third party provider customarily requires of recipients of reports of that kind.
(b)    At any time during the existence of an Event of Default and otherwise one (1) time in any calendar quarter, the Administrative Agent or its designee, may, at Company’s expense, perform a compliance review (a “Compliance Review”) with five (5) Business Days’ prior written notice to verify the compliance by Company and Holdings with Requirements of Law related to the Pledged Receivables and to review the materials prepared in accordance with Section 5.5(d). Company shall, and shall cause Holdings to, cooperate with all reasonable requests and provide the Administrative Agent with all necessary assistance and information in connection with each such Compliance Review. In connection with any such Compliance Review, Company will permit any authorized representatives designated by the Administrative Agent to review Company’s form of Receivable Agreements, Underwriting Policies, information processes and controls, compliance practices and procedures and marketing materials (“Materials”). Such authorized representatives may make written recommendations regarding Company’s compliance with applicable Requirements of Law, and Company shall consult in good faith with the Administrative Agent regarding such recommendations. In connection with any Compliance Review pursuant to this Section 5.5(b), the Administrative Agent agrees to use a single regulatory counsel.
(c)    In connection with any inspection pursuant to Section 5.5(a) or a Compliance Review, the Administrative Agent or its designee may contact a Receivables Obligor as reasonably necessary to perform such inspection or Compliance Review, as the case may be, provided, however, that such contact shall be made in the name of, and in cooperation with, Holdings and Company, unless Holdings (i) has failed to so cooperate for at least ten (10) Business Days after receiving a written request from the Administrative Agent requesting such cooperation, or (ii) is no longer the “Servicer” under the Servicing Agreement.
5.6    Lenders Meetings. Company shall, and shall cause Holdings to, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at Company’s corporate offices (or at such other

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location as may be agreed to by Company and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent.
5.7    Compliance with Laws. Company shall, and shall cause Holdings to, comply with the Requirements of Law, noncompliance with which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.8    Separateness. Company shall at all times comply with Section 5(d), Section 7, Sections 9(e) and (f), Section 10, Section 28, Section 30 and Section 31 (or any successor sections) of the Limited Liability Company Agreement, and shall not violate or cause to be violated the assumptions made with respect to Company in any opinion letter pertaining to substantive consolidation delivered to Lenders in connection with the Credit Documents.
5.9    Further Assurances. At any time or from time to time upon the request of any Agent or Lender, Company will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as such Agent or Lender may reasonably request in order to effect fully the purposes of the Credit Documents, including providing Lenders with any information reasonably requested pursuant to Section 9.21. In furtherance and not in limitation of the foregoing, Company shall take such actions as the Administrative Agent or any Class A Revolving Lender may reasonably request from time to time to ensure that the Obligations are secured by substantially all of the assets of Company.
5.10    Communication with Accountants. Company authorizes Administrative Agent to communicate directly with Company’s independent certified public accountants and authorizes and shall instruct such accountants to communicate directly with Administrative Agent and authorizes such accountants to (and, upon Administrative Agent’s request therefor (at the request of any Agent), shall request that such accountants) communicate to Administrative Agent information relating to Company with respect to the business, results of operations and financial condition of Company (including the delivery of audit drafts and letters to management), provided that advance notice of such communication is given to Company, and Company is given a reasonable opportunity to cause an officer to be present during any such communication. Company agrees that the Administrative Agent may communicate with Company’s independent certified public accountants pursuant to this Section 5.9 (a) at any time (i) during the existence of a Default or an Event of Default, (ii) upon any event or circumstance which has a Material Adverse Effect or (iii) upon any material change (as determined by the Administrative Agent in its Permitted Discretion) in Holdings’ or Company’s accounting principles and policies and (b) otherwise, up to two (2) times in any calendar year. The failure of Company to be present during such communication after given such reasonable opportunity shall in no way impair the rights of the Administrative Agent under this Section 5.9.
5.11    Special Covenants Regarding CRR Compliance. Holdings, in its capacity as sole member of Company, represents that, on the Original Closing Date, its membership interest in the Company (the “Retained Interest”) represents a net economic interest in the Receivables which is not less than 5% of the aggregate Outstanding Principal Balance of the Receivables, except to the extent permitted under the Risk Retention Requirements, and the Retained Interest takes the form of the first loss tranche in accordance with Article 404(1)(d) of the CRR, as represented by overcollateralization with respect to each Receivable. Holdings agrees that, from the Original

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Closing Date until the Termination Date, it shall, for the benefit of each Lender and each Class A Managing Agent and each holding company of any Lender or any Class A Managing Agent that is required to comply with the requirements of the CRR, unless each such Class A Managing Agent shall otherwise consent in writing: (a)    hold such membership interest on an ongoing basis until the Termination Date; provided, that Holdings shall not be restricted by this Section 5.10(a) from transferring one or more senior interests in the membership interest, so long as it maintains the most subordinate interest in such membership interest and such subordinate interest satisfies the requirements of Article 404(1)(d) of the CRR (the “Minimum Retained Membership Interest”);
(b)    not sell or subject the Minimum Retained Membership Interest to any hedge, credit risk mitigation or short position that is not permitted under the Risk Retention Requirements;
(c)    for the purpose of each Monthly Servicing Report, confirm to the Servicer that it continues to comply with subsections (a) and (b) above;
(d)    provide notice promptly to each Class A Managing Agent and the Class B Agent in the event it has breached subsections (a) or (b) above;
(e)    notify each Class A Managing Agent and the Class B Agent of any change to the form of retention of the Retained Interest; and
(f)    provide all information which any Class A Managing Agent or the Class B Agent reasonably requests in order for such Class A Managing Agent or the Class B Agent to comply with its obligations under the Risk Retention Requirements with respect to the Loans made by it hereunder.
5.12    Acquisition of Receivables from Holdings. With respect to each Pledged Receivable, Company shall (a) acquire such Receivable pursuant to and in accordance with the terms of the Asset Purchase Agreement, (b) take all actions necessary to perfect, protect and more fully evidence Company’s ownership of such Receivable, including, without limitation, executing or causing to be executed (or filing or causing to be filed) such other instruments or notices as may be necessary or appropriate, and (c) take all additional action that the Administrative Agent may reasonably request to perfect, protect and more fully evidence the respective interests of Company, the Agents, and the Lenders.
5.13    No Adverse Selection. Company shall cause Holdings, when selecting any Receivable sold to the Company hereunder, to comply with the Selection Procedures.
5.14    Class B Revolving Lender Information Rights. Company shall provide to the Class B Agent, which shall promptly forward to each Class B Revolving Lender, (a) substantially contemporaneously with its provision to the Administrative Agent any written information required to be provided to the Administrative Agent under any Credit Document, and (b) prompt written notice of (i) any Event of Default under this Agreement and (ii) any written waiver or consent provided under, or any amendment of, any Credit Document.

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5.15    Minimum Sales Requirement. (a)    With respect to each Fiscal Quarter in which the average daily unpaid principal amount of the Class A Revolving Loans is less than 90% of the average daily Class A Revolving Commitments during such Fiscal Quarter, Holdings shall have sold during such Fiscal Quarter Receivables to Company selected by it in accordance with the Selection Procedures in an amount (with respect to any Fiscal Quarter, the “Available Eligible Receivables Amount”) equal to at least 50% of the excess of (A) the aggregate Outstanding Principal Balance of all Eligible Receivables originated by Holdings or originated by a Receivables Account Bank and sold to Holdings or an Affiliate of Holdings during such Fiscal Quarter over (B) the sum of (i) the aggregate Outstanding Principal Balance of such Receivables originated during such Fiscal Quarter that Holdings is obligated to sell, or may sell in order to maximize the funds available thereunder to Holdings, to a special-purpose Subsidiary of Holdings in connection with one or more term securitization transactions involving the issuance of securities of a fixed not variable amount rated at least investment grade by one or more nationally recognized statistical rating organizations, and (ii) the aggregate Outstanding Principal Balance of all such Receivables originated during such Fiscal Quarter that are Marketplace Receivables. For all purposes of the foregoing, (1) with respect to any Fiscal Quarter, any such Receivables that are originated in such Fiscal Quarter but sold to Company or another Subsidiary of Holdings or as a Marketplace Receivable in the immediately succeeding Fiscal Quarter shall be deemed to have been originated in the Fiscal Quarter in which they were sold, and (2) each percentage under this Section 5.15(a) shall be calculated based on the original Outstanding Principal Balances of the applicable Receivables.
(b)    During any Monthly Period, the Administrative Agent may in its Permitted Discretion request that Holdings calculate and report to the Administrative Agent its month-to-date satisfaction of the requirements of Section 5.15(a) (it being understood that any such result shall be delivered for informational purposes only and shall not be deemed to require Holdings to comply with the requirements of Section 5.15(a) on an intra-month basis).
(c)    When Holdings selects Receivables to sell to Company or any other Subsidiary of Holdings that has incurred Funded Indebtedness for the purposes of financing Receivables with substantially similar eligibility criteria, it shall utilize the Selection Procedures.
SECTION 6.    NEGATIVE COVENANTS
Company covenants and agrees that, until the Termination Date, Company shall perform (or cause to be performed, as applicable) all covenants in this Section 6.
6.1    Indebtedness. Company shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except the Obligations.
6.2    Liens. Company shall not directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Company, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property,

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asset, income or profits under the UCC of any State or under any similar recording or notice statute, except Permitted Liens.
6.3    Equitable Lien. If Company shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, it shall make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.
6.4    No Further Negative Pledges. Except pursuant to the Credit Documents Company shall not enter into any Contractual Obligation prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired.
6.5    Restricted Junior Payments. Company shall not through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that, Restricted Junior Payments may be made by Company from time to time with respect to any amounts distributed to Company in accordance with Section 2.12(a)(xiii).
6.6    Subsidiaries. Company shall not form, create, organize, incorporate or otherwise have any Subsidiaries.
6.7    Investments. Company shall not, directly or indirectly, make or own any Investment in any Person, including without limitation any Joint Venture, except Investments in Cash, Permitted Investments and Receivables (and property received from time to time in connection with the workout or insolvency of any Receivables Obligor), and Permitted Investments in the Controlled Accounts.
6.8    Fundamental Changes; Disposition of Assets; Acquisitions. Company shall not enter into any transaction of merger or consolidation, or liquidate, wind‑up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired (other than, provided no Event of Default pursuant to Section 7.1(a), 7.1(g), 7.1(h) or 7.1(p) has occurred and is continuing, Permitted Asset Sales; provided that Permitted Asset Sales under clause (d) of the definition thereof shall be permitted at all times subject to receipt of the consent required therein), or acquire by purchase or otherwise (other than acquisitions of Eligible Receivables, or Permitted Investments in a Controlled Account (and property received from time to time in connection with the workout or insolvency of any Receivables Obligor)) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person.
6.9    Sales and Lease‑Backs. Company shall not, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether

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real, personal or mixed), whether now owned or hereafter acquired, which Company (a) has sold or transferred or is to sell or to transfer to any other Person, or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company to any Person in connection with such lease.
6.10    Transactions with Shareholders and Affiliates. Company shall not, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder of ten percent (10%) or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or of any such holder other than the transactions contemplated or permitted by the Credit Documents and the Related Agreements.
6.11    Conduct of Business. From and after the Original Closing Date, Company shall not engage in any business other than the businesses engaged in by Company on the Original Closing Date.
6.12    Fiscal Year. Company shall not change its Fiscal Year‑end from December 31st.
6.13    Servicer; Backup Servicer; Custodian
(a)    Company shall use its commercially reasonable efforts to cause Servicer, the Backup Servicer and the Custodian to comply at all times with the applicable terms of the Servicing Agreement, the Backup Servicing Agreement and the Custodial Agreement. The Company may not (i) terminate, remove, replace Servicer, Backup Servicer or the Custodian or (ii) subcontract out any portion of the servicing or permit third party servicing other than the Backup Servicer, except, in each case, with the consent of the Requisite Lenders in their Permitted Discretion. The Administrative Agent may not terminate, remove, or replace the Servicer except in accordance with the Servicing Agreement. The Administrative Agent may not terminate, remove, or replace the Backup Servicer or the Custodian except with the prior consent of Company (such consent not to be unreasonably withheld); provided, however, that the Administrative Agent may terminate and replace the Backup Servicer at any time without the consent of Company after the occurrence and during the continuance of an Event of Default or Servicer Default.
(b)    Upon the occurrence of a Hot Backup Servicer Event, the Administrative Agent may instruct the Backup Servicer to provide “hot” backup servicing under the Backup Servicing Agreement (provided that, if after a Hot Backup Servicer Event to occur hereunder, a Hot Backup Servicer Event Cure occurs, the Administrative Agent shall, at the direction of Company, instruct the Backup Servicer to (i) stop providing hot” backup servicing under the Backup Servicing Agreement and (ii) again begin providing only “warm” backup servicing under the Backup Servicing Agreement). Company shall pay all reasonable and customary fees, costs and expenses of the Backup Servicer.
6.14    Acquisitions of Receivables. Company may not acquire Receivables from any Person other than Holdings pursuant to the Asset Purchase Agreement.

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6.15    Independent Manager. Company shall not fail at any time to have at least one independent manager (an “Independent Manager”) who:
(a)    is provided by a nationally recognized provider of independent directors;
(b)    is not and has not been employed by Company or Holdings or any of their respective Subsidiaries or Affiliates as an officer, director, partner, manager, member (other than as a special member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Company or Holdings or any of their respective Affiliates within the five years immediately prior to such individual’s appointment as an Independent Manager, provided that this paragraph (b) shall not apply to any person who serves as an independent director or an independent manager for any Affiliate of any of Company or Holdings;
(c)    is not, and has not been within the five years immediately prior to such individual’s appointment as an Independent Manager, a customer or creditor of, or supplier to, Company or Holdings or any of their respective Affiliates who derives any of its purchases or revenue from its activities with Company or Holdings or any of their respective Affiliates thereof (other than a de minimis amount);
(d)    is not, and has not been within the five years immediately prior to such individual’s appointment as an Independent Manager, a person who controls or is under common control with any Person described by clause (b) or (c) above;
(e)    does not have, and has not had within the five years immediately prior to such individual’s appointment as an Independent Manager, a personal services contract with Company or Holdings or any of their respective Subsidiaries or Affiliates, from which fees and other compensation received by the person pursuant to such personal services contract would exceed 5% of his or her gross revenues during the preceding calendar year;
(f)    is not affiliated with a tax-exempt entity that receives, or has received within the five years prior to such appointment as an Independent Manager, contributions from Company or Holdings or any of their respective Subsidiaries or Affiliates, in excess of the lesser of (i) 3% of the consolidated gross revenues of Holdings and its Subsidiaries during such fiscal year and (ii) 5% of the contributions received by the tax-exempt entity during such fiscal year;
(g)    is not and has not been a shareholder (or other equity owner) of any of Company or Holdings or any of their respective Affiliates within the five years immediately prior to such individual’s appointment as an Independent Manager;
(h)    is not a member of the immediate family of any Person described by clause (b) through (g) above;
(i)    is not, and was not within the five years prior to such appointment as an Independent Manager, a financial institution to which Company or Holdings or any of their respective Subsidiaries or Affiliates owes outstanding Indebtedness for borrowed money in a sum exceeding more than 5% of Holdings’ total consolidated assets;

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(j)    has prior experience as an independent director or manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy; and
(k)    has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
Upon Company learning of the death or incapacity of an Independent Manager, Company shall have ten (10) Business Days following such death or incapacity to appoint a replacement Independent Manager. Any replacement of an Independent Manager will be permitted only upon (a) two (2) Business Days’ prior written notice to each Agent and Lender, (b) Company’s certification that any replacement manager will satisfy the criteria set forth in clauses (a)-(i) of this Section 6.15 and (c) the Administrative Agent’ written consent to the appointment of such replacement manager. For the avoidance of doubt, other than in the event of the death or incapacity of an Independent Manager, Company shall at all times have an Independent Manager and may not terminate any Independent Manager without the prior written consent of the Administrative Agent, which consent the Administrative Agent may withhold in its sole discretion.
6.16    Organizational Agreements and Credit Documents. Except as otherwise expressly permitted by other provisions of this Agreement or any other Credit Document, Company shall not (a) enter into any contract with any Person other than the Credit Documents, any Related Agreement to which it is a party, and an agreement related to the appointment of the Independent Manager and process agent, in each case, as of the Original Closing Date or any agreement entered into in connection with a Permitted Asset Sale; (b) amend, restate, supplement or modify, or permit any amendment, restatement, supplement or modification to, its Organizational Documents, without obtaining the prior written consent of the Requisite Lenders to such amendment, restatement, supplement or modification, as the case may be; (c) agree to any termination, amendment, restatement, supplement or other modification to, or waiver of, or permit any termination, amendment, restatement, supplement or other modification to, or waivers of, any of the provisions of any Credit Document without the prior written consent of the Requisite Lenders. Company shall not agree to, and shall cause Holdings not to, amend, restate, supplement or modify in any material respect any Receivables Program Agreement without providing prior written notice thereof to the Administrative Agent, each Class A Managing Agent and the Class B Agent and obtaining the consent thereto of the Requisite Lenders; provided, however that the Requisite Lenders shall be deemed to have consented to any such amendment, restatement, supplement or modification if the Requisite Lenders do not object to such proposed amendment, restatement, supplement or modification in writing to Company within seven (7) Business Days of the Administrative Agent’s receipt of written notice of such proposed amendment, restatement, supplement or modification.
6.17    Changes in Underwriting or Other Policies; Certain Methodologies. Company shall not agree to, and shall cause Holdings not to, make any change or modification to the

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Underwriting Policies without providing prior written notice thereof to the Administrative Agent, each Class A Managing Agent and the Class B Agent (collectively, the “Notice Parties”). Company shall not agree to, and shall cause Holdings not to, make any Material Underwriting Policy Change, including any change or modification to the Underwriting Policies of which the Notice Parties receives written notice that either the Administrative Agent or the Requisite Class B Revolving Lenders, in the exercise of their respective Permitted Discretion, determines to be a Material Underwriting Policy Change and notifies Company of such determination within seven (7) Business Days of their receipt of such notice, without the prior written consent of the Requisite Class A Lenders and the Requisite Class B Revolving Lenders (such consent not to be unreasonably withheld, conditioned or delayed). Company shall not agree to, and shall cause the Servicer not to, make any change to the Servicer’s methodology for calculating the unpaid principal balance of Pledged Receivables without the prior written consent of the Requisite Class A Lenders and the Requisite Class B Revolving Lenders (such consent not to be unreasonably withheld, conditioned or delayed).
6.18    Receivable Forms. Company shall not acquire Receivables which are not on the form of applicable Receivable Agreement attached to the Undertakings Agreement (or any successor form approved after the Amendment Effective Date in accordance with this Section 6.18). Company shall provide, or cause Holdings to provide, prior written notice to Administrative Agent, each Class A Managing Agent and the Class B Agent of any proposed change or variation to the form of any Receivable Agreement, including a reasonably detailed description of the proposed change or variation (a “Notice of Amendment”). The Administrative Agent shall, within five (5) Business Days of Administrative Agent’s receipt of a Notice of Amendment, notify Company if the Administrative Agent, in its Permitted Discretion, has determined that such proposed change or variation is material (a “Material Change Notice”), and upon receipt of such Material Change Notice, Company shall not, and shall cause Holdings not to, make any change or variation set forth in the Notice of Amendment without the prior written consent of the Requisite Lenders, unless such change or variation is required by any Requirement of Law. The Requisite Lenders may reasonably withhold such consent until they have received a satisfactory opinion of Company's counsel regarding compliance of such revised form with any Requirement of Law reasonably expected to be applicable thereto. If, within five (5) Business Days of Administrative Agent’s receipt of a Notice of Amendment, the Administrative Agent has not provided a Material Change Notice to Company or Holdings, Company or Holdings may make the change or variation to the applicable form of Receivable Agreement proposed in such Notice of Amendment.
SECTION 7.    EVENTS OF DEFAULT
7.1    Events of Default. If any one or more of the following events shall occur.
(a)    Failure to Make Payments When Due. Other than with respect to a Borrowing Base Deficiency, failure by Company to pay (i) when due, the principal of and premium, if any, on any Loan whether at stated maturity (including on the Revolving Commitment Termination Date), by acceleration or otherwise; (ii) within two (2) Business Days after its due date, any interest on any Loan or any fee due hereunder; or (iii) within thirty (30) days after its due date, any other amount due hereunder; or

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(b)    Default in Other Agreements. (i) Failure of Holdings or any Subsidiary of Holdings (other than Company) to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness for borrowed money with a principal amount in excess of $1,000,000, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by Holdings or any Subsidiary of Holdings (other than Company) with respect to any other material term of (a) one or more items of Indebtedness for borrowed money with a principal amount in excess of $1,000,000, or (b) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness for borrowed money, and, in each case, such failure, breach or default, as the case may be, results in the acceleration of amounts owed thereunder, provided that any such failure, breach or default, as the case may be, and acceleration shall constitute an Event of Default hereunder only after the Administrative Agent shall have provided written notice to Company that such failure, breach or default constitutes an Event of Default hereunder; or
(c)    Breach of Certain Covenants. Failure of Company to perform or comply with any term or condition contained in Section 2.3, Section 2.11, Section 5.1(a), Section 5.1(h), Section 5.2, Section 5.6, Section 5.7 or Section 6 (other than Sections 6.13), or failure to distribute Collections in accordance with Section 2.12; provided that any failure of Company to perform or comply with any term or condition contained in Section 6.17 or 6.18 shall constitute an Event of Default hereunder only after the Administrative Agent shall have provided written notice to Company that such breach constitutes an Event of Default hereunder;
(d)    Breach of Representations, etc. Any representation or warranty, certification or other statement made or deemed made by Company or Holdings (or Holdings as Servicer) in any Credit Document or in any statement or certificate at any time given by Company or Holdings (or Holdings as Servicer) in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect, other than any representation, warranty, certification or other statement which is qualified by materiality or “Material Adverse Effect”, in which case, such representation, warranty, certification or other statement shall be true and correct in all respects, in each case, as of the date made or deemed made and such default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an Authorized Officer of Company or Holdings becoming aware of such default, or (ii) receipt by Company of notice from any Agent or Lender of such default; or
(e)    Other Defaults Under Credit Documents. Company or Holdings shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents other than any such term referred to in any other Section of this Section 7.1 and such default shall not have been remedied or waived within (i) other than with respect to any breach of Section 5.1(f), thirty (30) days after the earlier of (A) an Authorized Officer of Company or Holdings becoming aware of such default, or (B) receipt by Company or Holdings of notice from Administrative Agent or any Lender of such default, or (ii) with respect to any breach of Section 5.1(f), such default shall not have been remedied or waived within two (2) Business Days (provided that the two (2) Business Day grace period described in this Section 7.1(e)(ii) may be utilized no more than three (3) times during any period of twelve (12) consecutive Monthly Periods); or

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(f)    Breach of Portfolio Performance Covenants. A breach of any Portfolio Performance Covenant shall have occurred as of any Interest Payment Date; or
(g)    Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of Company or Holdings in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against Company or Holdings under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Company or Holdings, or over all or a substantial part of its respective property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or Holdings for all or a substantial part of its respective property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or Holdings, and any such event described in this clause (ii) shall continue for sixty (60) days without having been dismissed, bonded or discharged; or
(h)    Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or Holdings shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its respective property; or Company or Holdings shall make any assignment for the benefit of creditors; or (ii) Company or Holdings shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of Company or Holdings (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7.1(g); or
(i)    Judgments and Attachments.
(i)    Any money judgment, writ or warrant of attachment or similar process (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Company or any of its assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days; or
(ii)    Any money judgment, writ or warrant of attachment or similar process involving in any individual case or in the aggregate at any time an amount in excess of $1,000,000 (in any case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Holdings (or Holdings as Servicer) or any of its assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days; or

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(iii)    Any tax lien or lien of the PBGC shall be entered or filed against Company or Holdings (involving, with respect to Holdings only, an amount in excess of $1,000,000) or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of ten (10) days;
(j)    Dissolution. Any order, judgment or decree shall be entered against Company or Holdings decreeing the dissolution or split up of Company or Holdings, as the case may be, and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days; or
(k)    Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to result in a Material Adverse Effect during the term hereof or result in a Lien being imposed on the Collateral; or (ii) Company shall establish or contribute to any Employee Benefit Plan; or
(l)    Change of Control. A Change of Control shall occur; or
(m)    Servicing Agreement. A Servicer Default shall have occurred and be continuing; or
(n)    Backup Servicer Default. The Backup Servicing Agreement shall terminate for any reason and, provided that the Administrative Agent shall have used commercially reasonable efforts to timely engage a replacement Backup Servicer following such termination, within ninety (90) days of such termination no replacement agreement with an alternative backup servicer shall be effective; or
(o)    Borrowing Base Deficiency; Repurchase Failure. (i) Failure by Company to pay any Borrowing Base Deficiency within two (2) Business Days after the due date thereof, or (ii) failure of Holdings to repurchase any Receivable as and when required under the Asset Purchase Agreement; or
(p)    Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof, (i) this Agreement or any Collateral Document ceases to be in full force and effect (other than in accordance with its terms) or shall be declared null and void by a court of competent jurisdiction or the enforceability thereof shall be impaired in any material respect, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document (in each case, other than (A) by reason of a release of Collateral in accordance with the terms hereof or thereof or (B) the satisfaction in full of the Obligations and any other amount due hereunder or any other Credit Document in accordance with the terms hereof); or (ii) any of the Credit Documents for any reason, other than the satisfaction in full of all Obligations and any other amount due hereunder or any other Credit Document (other than contingent indemnification obligations for which demand has not been made), shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void by a court of competent jurisdiction or a party thereto or Holdings, as the case may be, shall repudiate its obligations thereunder or shall contest the validity or enforceability of any Credit Document in writing; or

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(q)    Breach of Financial Covenants. A breach of any Financial Covenant shall have occurred; or
(r)    Investment Company Act. Holdings or Company become subject to any federal or state statute or regulation which may render all or any portion of the Obligations unenforceable, or Company becomes a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940;
THEN, upon the occurrence of any Event of Default, the Administrative Agent may, and shall, at the written request of the Requisite Lenders, take any of the following actions: (w) upon notice to the Company, terminate the Revolving Commitments, if any, of each Lender having such Revolving Commitments, (x) upon notice to the Company, declare the unpaid principal amount of and accrued interest on the Loans and all other Obligations immediately due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company; (y) direct the Collateral Agent to enforce any and all Liens and security interests created pursuant to the Collateral Documents and (z) take any and all other actions and exercise any and all other rights and remedies of the Administrative Agent under the Credit Documents; provided that upon the occurrence of any Event of Default described in Section 7.1(g) or 7.1(h), the unpaid principal amount of and accrued interest on the Loans and all other Obligations shall immediately become due and payable, and  the Revolving Commitments shall automatically and immediately terminate, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company.  In addition, pursuant to the Servicing Agreement, the Administrative Agent may terminate the Servicing Agreement and appoint a Successor Servicer upon the occurrence of a Servicer Default.
SECTION 8.    AGENTS
8.1    Appointment of Agents. Each Class A Revolving Lender hereby authorizes Deutsche Bank AG, New York Branch to act as Administrative Agent to the Class A Revolving Lenders hereunder and under the other Credit Documents and each Class A Revolving Lender hereby authorizes Deutsche Bank AG, New York Branch, in such capacity, to act as its agent in accordance with the terms hereof and the other Credit Documents. Each Lender hereby authorizes Deutsche Bank AG, New York Branch, to act as the Collateral Agent on its behalf under the Credit Documents. DBSI is hereby appointed Syndication Agent and Documentation Agent hereunder. Each Agent hereby agrees to act upon the express conditions contained herein and the other Credit Documents, as applicable. The provisions of this Section 8 are solely for the benefit of Agents and Lenders and neither Company nor Holdings shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent (other than Administrative Agent) shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings or any of its Subsidiaries. In performing its functions and duties hereunder, Administrative Agent shall act solely as an agent of the Class A Revolving Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for any Class B Revolving Lender, Holdings or any of its Subsidiaries. Each Class B Revolving

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Lender hereby authorizes Deutsche Bank AG, New York Branch to act as an agent on behalf of the Class B Revolving Lenders in accordance with the terms hereof and the other Credit Documents (the “Class B Agent”). Upon any such appointment of a Class B Agent, any delivery, notice or similar requirement to be sent to or received from the Class B Revolving Lenders hereunder or in any other Credit Document shall instead be sent to or received from the Class B Agent, on behalf of the Class B Revolving Lenders. In performing its functions and duties hereunder, the Class B Agent shall act solely as an agent of the Class B Revolving Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for any Class A Managing Agent, Class A Revolving Lender, Holdings or any of its Subsidiaries. Each of Syndication Agent and Documentation Agent, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the Original Closing Date, DBSI, in its capacity as Syndication Agent or in its capacity as Documentation Agent, shall not have any obligations but shall be entitled to all benefits of this Section 8.
8.2    Powers and Duties. Each Lender irrevocably authorizes each Agent (other than Administrative Agent) to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Class A Revolving Lender irrevocably authorizes Administrative Agent to take such action on such Class A Revolving Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Credit Documents. Each such Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No such Agent shall have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any such Agent any obligations in respect hereof or any of the other Credit Documents except as expressly set forth herein or therein.
8.3    General Immunity.
(a)    No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of Company or Holdings to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of Company or Holdings or any other Person liable for the payment of any Obligations or any other amount due hereunder or any other Credit Document, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit

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Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, Paying Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the component amounts thereof.
(b)    Exculpatory Provisions Relating to Administrative Agent. Neither Administrative Agent nor any of its officers, partners, directors, employees or agents shall be liable to Class A Revolving Lenders for any action taken or omitted by Administrative Agent under or in connection with any of the Credit Documents except to the extent caused by Administrative Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. Administrative Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until Administrative Agent shall have received instructions in respect thereof from Requisite Class A Lenders (or such other Lenders as may be required to give such instructions under Section 9.5) and, upon receipt of such instructions from Requisite Class A Lenders (or such other Lenders, as the case may be), Administrative Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and Company), accountants, experts and other professional advisors selected by it; and (ii) no Class A Revolving Lender shall have any right of action whatsoever against Administrative Agent as a result of Administrative Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Class A Lenders (or such other Lenders as may be required to give such instructions under Section 9.5).
(c)    Exculpatory Provisions Relating to Other Agents. No Agent (other than Administrative Agent) nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. Each such Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 9.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each such Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to

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have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and Company), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any such Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 9.5).
8.4    Agents Entitled to Act as Lender. Any agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection herewith and otherwise without having to account for the same to Lenders.
8.5    Lenders’ Representations, Warranties and Acknowledgment.
(a)    Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdings and Company in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdings and Company. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.
(b)    Each Class A Managing Agent and each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Original Closing Date.
8.6    Right to Indemnity.
(a)    Administrative Agent. The Class A Revolving Committed Lenders in each Class A Lender Group, in proportion to their respective Committed Lender Pro Rata Shares of the Pro Rata Share of such Class A Lender Group, severally agrees to indemnify Administrative Agent, its Affiliates and their respective officers, partners, directors, trustees, employees and agents (each, an “AA Indemnitee Agent Party”), to the extent that such AA Indemnitee Agent Party shall not have been reimbursed by Company or Holdings, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and

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disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such AA Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such AA Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH AA INDEMNITEE AGENT PARTY; provided, no Class A Revolving Committed Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such AA Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order. If any indemnity furnished to any AA Indemnitee Agent Party for any purpose shall, in the opinion of such AA Indemnitee Agent Party, be insufficient or become impaired, such AA Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided, in no event shall this sentence require any Class A Revolving Committed Lender in a Class A Lender Group to indemnify any AA Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Class A Revolving Lender’s Committed Lender Pro Rata Share of such Class A Lender Group’s Pro Rata Share thereof; and provided further, this sentence shall not be deemed to require any Class A Revolving Committed Lender to indemnify any AA Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
(b)    Other Agents. Each Lender (or, in the case of any Class A Lender Group, each Class A Revolving Committed Lender in such Class A Lender Group, in proportion to its Committed Lender Pro Rata Share), in proportion to its Pro Rata Share, severally agrees to indemnify each Agent (other than Administrative Agent), their Affiliates and their respective officers, partners, directors, trustees, employees and agents of each Agent (each, an “Indemnitee Agent Party”), to the extent that such Indemnitee Agent Party shall not have been reimbursed by Company or Holdings, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the

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acts indemnified against until such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof (or, in the case of any Class A Revolving Committed Lender in a Class A Lender Group, such Class A Revolving Committed Lender’s Committed Lender Pro Rata Share of the Pro Rata Share of such Class A Lender Group thereof); and provided further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
8.7    Successor Administrative Agent and Collateral Agent.
(a)    Administrative Agent.
(i)    Administrative Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to the Class A Managing Agents and Company. Upon any such notice of resignation, Requisite Class A Lenders shall have the right, upon five (5) Business Days’ notice to Company, to appoint a successor Administrative Agent provided, that the appointment of a successor Administrative Agent shall require (so long as no Default or Event of Default has occurred and is continuing) Company’s approval, which approval shall not be unreasonably withheld, delayed or conditioned. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Credit Documents, and (ii) take such other actions, as may be necessary or appropriate in connection with the appointment of such successor Administrative Agent, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder. If Administrative Agent is a Class A Revolving Lender or an Affiliate thereof on the date on which the Revolving Commitment Termination Date shall have occurred and all Class A Revolving Loans and all other Obligations owing to the Class A Lender Groups have been paid in full in cash, such Administrative Agent shall provide immediate notice of resignation to the Company, and the Requisite Class B Revolving Lenders shall have the right, upon five (5) Business Days’ notice to the Company, to appoint a successor Administrative Agent; provided, that the appointment of any successor Administrative Agent that is not a Class B Revolving Lender or an Affiliate thereof shall require (so long as no Default or Event of Default has occurred and is continuing) Company’s approval, which approval shall not be unreasonably withheld, delayed or conditioned.

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(ii)    Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to one of its Affiliates without the prior written consent of, or prior written notice to, Company or the Class A Revolving Lenders; provided that Company and the Class A Revolving Lenders may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Company and the Class A Revolving Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Credit Documents.
(b)    Collateral Agent.
(i)    Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders and Company. Upon any such notice of resignation, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to Company, to appoint a successor Collateral Agent provided, that the appointment of a successor Collateral Agent shall require (so long as no Default or Event of Default has occurred and is continuing) Company’s approval, which approval shall not be unreasonably withheld, delayed or conditioned. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent and the retiring Collateral Agent shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under the Credit Documents, and (ii) execute and deliver to such successor Collateral Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the appointment of such successor Collateral Agent and the assignment to such successor Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the provisions of this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent hereunder.
(ii)    Notwithstanding anything herein to the contrary, Collateral Agent may assign its rights and duties as Collateral Agent hereunder to one of its Affiliates without the prior written consent of, or prior written notice to, Company or the Lenders; provided that Company and the Lenders may deem and treat such assigning Collateral Agent as Collateral Agent for all purposes hereof, unless and until such assigning Collateral Agent provides written notice to Company and the Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Collateral Agent hereunder and under the other Credit Documents.

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8.8    Collateral Documents. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Collateral and the Collateral Documents. Subject to Section 9.5, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 9.5) have otherwise consented. Anything contained in any of the Credit Documents to the contrary notwithstanding, Company, the Agents and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Collateral Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations or any other amount due hereunder as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale. Notwithstanding any other provision of the Credit Documents, prior to consummating any such public or private sale, the Collateral Agent shall provide the Class B Revolving Lenders with the right (exercisable for a period of one (1) Business Day after written notice) to purchase any such Collateral for cash in immediately available funds at a price equal to $0.03125 higher than the next highest legitimate and observable third-party bid.
SECTION 9.    MISCELLANEOUS
9.1    Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to Company, Syndication Agent, Collateral Agent, Administrative Agent or Documentation Agent shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Class A Managing Agent or Lender, the address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing. Each notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided, no notice to any Agent shall be effective until received by such Agent, provided, however, that Company may deliver, or cause to be delivered, the Borrowing Base Certificate, Borrowing Base Report and any financial statements or reports (including any collateral performance tests) by electronic mail pursuant to procedures approved by the Administrative Agent until any Agent or Lender notifies Company that it can no longer receive such documents using electronic mail. Any Borrowing Base Certificate, Borrowing Base Report or financial statements or reports sent to an electronic mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient

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(such as by the “return receipt requested” function, if available, return electronic mail or other written acknowledgement), provided, that if such document is sent after 5:00 p.m. Eastern Standard time, such document shall be deemed to have been sent at the opening of business on the next Business Day.
9.2    Expenses. Company agrees to pay promptly (a) (i) all the Administrative Agent’s actual, reasonable and documented out-of-pocket costs and expenses (including reasonable and customary fees and expenses of Simpson Thacher & Bartlett, counsel to the Administrative Agent) of negotiation, preparation, execution and administration of the Credit Documents, including the Credit Document Amendments, and any consents, waivers or other amendments or modifications to the Credit Documents, (ii) all the Paying Agent’s actual, reasonable and documented out-of-pocket costs and expenses (including reasonable and customary fees and expenses of counsel to the Paying Agent) in connection with the negotiation, preparation, execution and administration of the Credit Documents and any consents, amendments, waivers or other modifications thereto, including the Credit Document Amendments, (iii) the reasonable and customary fees and expenses of a single counsel to KeyBank National Association (as successor by merger to Key Equipment Finance, Inc.) in connection with the negotiation, preparation and execution of the Credit Document Amendments and any consents or waivers of, or other amendments or modifications to, the Credit Documents, and in connection with the administration of the Credit Documents and (iv) the reasonable and customary fees and expenses of a single counsel to the Class B Revolving Lender in connection with the negotiation, preparation and execution of the Credit Document Amendments and any consents or waivers of, or other amendments or modifications to, the Credit Documents, and in connection with the administration of the Credit Documents; (b) all the actual, documented out-of-pocket costs and reasonable out-of-pocket expenses of creating, perfecting and enforcing Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable and documented out-of-pocket fees, expenses and disbursements of a single counsel for all Agents; (c) subject to the terms of this Agreement (including any limitations set forth in Section 5.5), all the Administrative Agent’s actual, reasonable and documented out-of-pocket costs and reasonable fees, expenses for, and disbursements of any of Administrative Agent’s, auditors, accountants, consultants or appraisers incurred by Administrative Agent; (d) subject to the terms of this Agreement, all the actual, reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (e) subject in all cases to any express limitations set forth in any Credit Document, all other actual, reasonable and documented out-of-pocket costs and expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby; and (f) after the occurrence of a Default or an Event of Default, all documented, out-of-pocket costs and expenses, including reasonable attorneys’ fees, and costs of settlement, incurred by any Agent or any Lender in enforcing any Obligations of or in collecting any payments due from Company or Holdings hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral) or in connection with any refinancing or restructuring of the credit arrangements

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provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.
9.3    Indemnity.
(a)    In addition to the payment of expenses pursuant to Section 9.2, whether or not the transactions contemplated hereby shall be consummated, Company agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Affected Party and each Agent, their Affiliates and their respective officers, partners, directors, trustees, employees and agents (each, an “Indemnitee”), from and against any and all Indemnified Liabilities, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE excluding any amounts not otherwise payable by Company under Section 2.16(b)(iii); provided, Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order of that Indemnitee. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 9.3 may be unenforceable in whole or in part because they are violative of any law or public policy, Company shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.
(b)    To the extent permitted by applicable law, Company shall not assert, and Company hereby waives, any claim against any Affected Party or Agent and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Revolving Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Company hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
9.4    Reserved.
9.5    Amendments and Waivers.
(a)    Requisite Lenders’ Consent. Subject to Sections 9.5(b) and 9.5(c), no amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by Company or Holdings therefrom, shall in any event be effective without the written concurrence of Company, Administrative Agent and the Requisite Lenders.

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(b)    Affected Lenders’ Consent. Without the written consent of each Lender (other than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i)    extend the scheduled final maturity of any Loan or Revolving Loan Note;
(ii)    waive, reduce or postpone any scheduled repayment (but not prepayment);
(iii)    reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.8) or any fee payable hereunder;
(iv)    extend the time for payment of any such interest or fees;
(v)    reduce the principal amount of any Loan;
(vi)    (x) amend the definition of “Class A Borrowing Base” or “Class B Borrowing Base” or (y) amend, modify, terminate or waive Section 2.12, Section 2.13 or Section 2.14 or any provision of this Section 9.5(b) or Section 9.5(c);
(vii)    amend the definition of “Requisite Lenders”, “Requisite Class A Lenders,” “Requisite Class B Revolving Lenders,” “Class A Revolving Exposure,” “Class B Revolving Exposure,” “Committed Lender Pro Rata Share,” “Pro Rata Share,” “Applicable Class A Advance Rate,” “Applicable Class B Advance Rate,” “Class A Revolving Availability,” “Class B “Revolving Availability” or any definition used therein; provided, with the consent of Administrative Agent, Company and the Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Original Closing Date;
(viii)    release all or substantially all of the Collateral except as expressly provided in the Credit Documents; or
(ix)    consent to the assignment or transfer by Company or Holdings of any of its respective rights and obligations under any Credit Document.
(c)    Other Consents. No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by Company or Holdings therefrom, shall:
(i)    increase any Revolving Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Revolving Commitment of any Lender;

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(ii)    amend, modify, terminate or waive any provision of Section 3.3(a) with regard to any Credit Extension of the Class A Revolving Lenders without the consent of the Requisite Class A Lenders; or amend, modify, terminate or waive any provision of Section 3.3(a) with regard to any Credit Extension of the Class B Revolving Lenders without the consent of the Requisite Class B Revolving Lenders;
(iii)    amend the definitions of “Eligibility Criteria” or “Eligible Receivables Obligor” or amend any portion of Appendix C without the consent of each of the Requisite Class A Lenders and the Requisite Class B Revolving Lenders;
(iv)    amend or modify any provision of Sections 2.11, other than Sections 2.11(c)(vii) and 2.11(e), without the consent of each of the Requisite Class A Lenders and the Requisite Class B Revolving Lenders; provided, however, that, notwithstanding the foregoing, any such amendment or modification during the continuance of any Hot Backup Servicer Event, Event of Default or Servicer Default shall only require the consent of the Requisite Lenders;
(v)    amend or modify any provision of Section 7.1 without the consent of each of the Requisite Class A Lenders and the Requisite Class B Revolving Lenders; provided, however, that, notwithstanding the foregoing, any waiver of the occurrence of a Default or an Event of Default shall only require the consent of the Requisite Lenders; or
(vi)    amend, modify, terminate or waive any provision of Section 8 as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.
(d)    Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to, with the concurrence of the Requisite Class A Lenders or any Class A Revolving Lender, execute amendments, modifications, waivers or consents on behalf of the Requisite Class A Lenders or such Class A Revolving Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Company or Holdings in any case shall entitle Company or Holdings to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 9.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by Company, on Company. Notwithstanding anything to the contrary contained in this Section 9.5, if the Administrative Agent and Company shall have jointly identified an obvious error or any error or omission of a technical nature, in each case that is immaterial (as determined by the Administrative Agent in its sole discretion), in any provision of the Credit Documents, then the Administrative Agent (as applicable, and in its respective capacity thereunder, the Administrative Agent or Collateral Agent) and Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent by the Requisite Lenders if the same is not objected to in writing by the Requisite Lenders within five (5) Business Days following receipt of notice thereof.
9.6    Successors and Assigns; Participations.

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(a)    Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. Neither Company’s rights or obligations hereunder nor any interest therein may be assigned or delegated by it without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, Indemnitee Agent Parties under Section 8.6, Indemnitees under Section 9.3, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Register. Company, Paying Agent, Administrative Agent, Class B Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Revolving Commitment or Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and accepted by Administrative Agent and recorded in the Register as provided in Section 9.6(e). Prior to such recordation, all amounts owed with respect to the applicable Revolving Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Revolving Commitments or Loans.
(c)    Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Revolving Commitment or Loans owing to it or other Obligations (provided, however, that each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Loan and any related Revolving Commitments) to any Person constituting an Eligible Assignee. Each such assignment pursuant to this Section 9.6(c) (other than an assignment to any Person meeting the criteria of clause (i) of the definition of the term of “Eligible Assignee”) shall be in an aggregate amount of not less than $15,000,000 (or such lesser amount as may be agreed to by Company and Administrative Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving Loans.
(d)    Mechanics. The assigning Lender and the assignee thereof shall execute and deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.16(e).
(e)    Notice of Assignment. Upon the Administrative Agent’s or Class B Agent’s, as applicable, receipt and acceptance of a duly executed and completed Assignment Agreement and any forms, certificates or other evidence required by this Agreement in connection therewith,

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Administrative Agent or Class B Agent, as applicable, shall (i) provide Paying Agent with written notice of such assignment, and Paying Agent shall record the information contained in such notice in the Register, (ii) give prompt notice thereof to Company, and (iii) maintain a copy of such Assignment Agreement.
(f)    Representations and Warranties of Assignee. Each Lender, upon execution and delivery of the Existing Credit Agreement or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Original Closing Date or as of the applicable Effective Date (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Revolving Commitments or Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its Revolving Commitments or Loans for its own account in the ordinary course of its business and without a view to distribution of such Revolving Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 9.6, the disposition of such Revolving Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(g)    Effect of Assignment. Subject to the terms and conditions of this Section 9.6, as of the “Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 9.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided, anything contained in any of the Credit Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising prior to the effective date of such assignment; (iii) the Revolving Commitments shall be modified to reflect the Revolving Commitment of such assignee and any Revolving Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any Revolving Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Revolving Loan Notes to Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Revolving Loan Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
(h)    Participations. Each Lender shall have the right at any time to sell one or more participations to any Person (other than Holdings, any of its Subsidiaries or any of its Affiliates or a Direct Competitor) in all or any part of its Revolving Commitments, Loans or in any other Obligation. The holder of any such participation, other than an Affiliate of the Lender granting

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such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Loan or Revolving Loan Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post‑default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Revolving Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by Company of any of its rights and obligations under this Agreement, or (iii) release all or substantially all of the Collateral under the Collateral Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating. Company agrees that each participant shall be entitled to the benefits of Sections 2.15 and 2.16 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (c) of this Section; provided, (i) a participant shall not be entitled to receive any greater payment under Section 2.15 or 2.16 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the participant acquired the applicable participation, unless the sale of the participation to such participant is made with Company’s prior written consent, and (ii) a participant that would be a Non‑US Lender if it were a Lender shall not be entitled to the benefits of Section 2.16 unless a Company (through a Designated Officer) is notified of the participation at the time it is sold to such participant and such participant agrees, for the benefit of Company, to comply with Section 2.16 as though it were a Lender. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 9.4 as though it were a Lender, provided such Participant agrees to be subject to Section 2.14 as though it were a Lender. Any Lender that sells such a participation shall, acting solely for this purpose as an agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in such participation and other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person other than Company (through a Designated Officer), including the identity of any Participant or any information relating to a Participant’s interest or obligations under any Credit Document, except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Paying Agent (in its capacity as Paying Agent) shall have no responsibility for maintaining a Participant Register. The Register shall be available for inspection by any Designated Officer of Company at any reasonable time and from time to time upon reasonable prior notice. Company shall not disclose the identity of any Participant of any Lender or any information relating to such Participant's interest or obligation to any Person, provided that Company may make (1) disclosures of such information to Affiliates of such Lender and to their agents and advisors

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provided that such Persons are informed of the confidential nature of the information and will be instructed to keep such information confidential, and (2) disclosures required or requested by any Governmental Authority or representative thereof or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided, that unless specifically prohibited by applicable law or court order, Company shall make reasonable efforts to notify the applicable Lender of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of Company by such Governmental Authority) for disclosure of any such non‑public information prior to disclosure of such information.
(i)    Certain Other Assignments. In addition to any other assignment permitted pursuant to this Section 9.6:
(i)    any Lender may assign, pledge and/or grant a security interest in, all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Revolving Loan Notes, if any, to secure obligations of such Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided, no Lender, as between Company and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further, in no event shall the applicable Federal Reserve Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder; and
(ii)    any Class A Revolving Conduit Lender may (i) with notice to the Company, and with the consent of the Managing Agent for the Lender Group of which it is a member, assign at any time all or any portion of its rights and obligations hereunder and interests herein to (A) any other Lender, (B) any commercial paper conduit managed by such Class A Revolving Conduit Lender’s sponsor or administrator bank if the Commercial Paper of such commercial paper conduit have short-term ratings from S&P and Moody’s that are equivalent to or higher than the short-term ratings by S&P and Moody’s of the Commercial Paper of such Class A Revolving Conduit Lender, (C) any Affiliate of such Class A Revolving Conduit Lender’s sponsor bank or (D) any Liquidity Provider with respect to such Class A Revolving Conduit Lender.
9.7    Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
9.8    Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of Company set forth in Sections 2.15, 2.16, 9.2, 9.3, and 9.10, the agreements of

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Lenders set forth in Sections 2.14, 8.3(b) and 8.6 and the agreements of all parties hereto set forth in Sections 9.22 and 9.23 shall survive the payment of the Loans and the termination hereof.
9.9    No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
9.10    Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of Company or any other Person or against or in payment of any or all of the Obligations or any other amount due hereunder. To the extent that Company makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent, Collateral Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
9.11    Severability. In case any provision in or obligation hereunder or any Revolving Loan Note or other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
9.12    Obligations Several; Actions in Concert. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. Anything in this Agreement or any other Credit Document to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or any Revolving Loan Note or otherwise with respect to the Obligations without first obtaining the prior written consent of the applicable Agent (other than the Paying Agent) or Requisite Lenders (as applicable), it being the intent of Lenders that any such action to protect or enforce rights under

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this Agreement and any Revolving Loan Note or otherwise with respect to the Obligations shall be taken in concert and at the direction or with the consent of Agent or Requisite Lenders (as applicable).
9.13    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
9.14    APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.15    CONSENT TO JURISDICTION.
(A)    ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 9.1 AND TO ANY PROCESS AGENT SELECTED IN ACCORDANCE WITH SECTION 3.1 ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (d) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
(B)    COMPANY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 9.1 OR ON CORPORATION SERVICE COMPANY, 1180 AVENUE OF THE AMERICAS, SUITE 120, NEW YORK, NEW YORK 10036 AND HEREBY APPOINTS CORPORATION SERVICE COMPANY, AS ITS AGENT TO RECEIVE SUCH SERVICE OF PROCESS. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST COMPANY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE. IN THE EVENT CORPORATION SERVICE COMPANY SHALL NOT BE ABLE TO ACCEPT SERVICE OF PROCESS AS AFORESAID AND IF COMPANY SHALL NOT MAINTAIN AN OFFICE IN NEW YORK CITY, COMPANY SHALL

115
 

PROMPTLY APPOINT AND MAINTAIN AN AGENT QUALIFIED TO ACT AS AN AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THE COURTS SPECIFIED IN THIS SECTION 9.15 ABOVE, AND ACCEPTABLE TO THE ADMINISTRATIVE AGENT, AS COMPANY’S AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON COMPANY’S BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING.
9.16    WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
9.17    Confidentiality. Each Agent and Lender shall hold all non‑public information regarding Holdings and its Subsidiaries and their businesses obtained by such Lender or Agent confidential and shall not disclose such information; provided, however, that, in any event, a Lender or Agent may make (a) disclosures of such information to Affiliates of such Lender or Agent and to their agents, auditors, attorneys and advisors (and to other persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 9.17) provided that such Persons are informed of the confidential nature of the information and agree to keep, or with respect to the Collateral Agent and Paying Agent such Persons will be instructed to keep, such information confidential, (b) disclosures of such information to any other Lender or Agent, (c) disclosures of such information reasonably

116
 

required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by such Lender of any Revolving Loans or any participations therein, provided that no disclosure shall be made to any Direct Competitor except in connection with an assignment or potential assignment to a Direct Competitor that is an Eligible Assignee and such Persons are informed of the confidential nature of the information and agree to hold such confidential information substantially in accordance with the terms of this Section 9.17, (d) disclosure to any rating agency when required by it, (e) disclosure to any Lender’s financing source or the directors, trustees, officers, employees, agents, attorneys, independent or internal auditors, financial advisors or other professional advisors of such financing source who, in each case, agree to hold confidential such confidential information substantially in accordance with this Section 9.17, (f) disclosures required by any applicable statute, law, rule or regulation or requested by any Governmental Authority or representative thereof or by any regulatory body or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided, that unless specifically prohibited by applicable law or court order, each Lender or Agent shall make reasonable efforts to notify Company of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender or Agent by such Governmental Authority) for disclosure of any such non‑public information prior to disclosure of such information, and (e) any other disclosure authorized by the Company in writing in advance. Notwithstanding the foregoing, (i) the foregoing shall not be construed to prohibit the disclosure of any information that is or becomes publicly known or information obtained by a Lender or Agent from sources other than the Company other than as a result of a disclosure by an Agent or Lender known (or that should have reasonably been known) to be in violation of this Section 9.17, and (ii) on or after the Original Closing Date, the Administrative Agent may, at its own expense issue news releases and publish “tombstone” advertisements and other announcements generally describing this transaction in newspapers, trade journals and other appropriate media (which may include use of logos of Company or Holdings) (collectively, “Trade Announcements”). Company shall not issue, and shall cause Holdings not to issue, any Trade Announcement using the name of any Agent or Lender, or their respective Affiliates or referring to this Agreement or the other Credit Documents, or the transactions contemplated thereunder except (x) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (y) with the prior approval of Administrative Agent (such approval not to be unreasonably withheld).
9.18    Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Company shall pay to Administrative Agent an amount equal

117
 

to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Company to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to Company. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.
9.19    Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.
9.20    Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof.
9.21    Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Company that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies Company, which information includes the name and address of Company and other information that will allow such Lender or Administrative Agent, as applicable, to identify Company in accordance with the Act.
9.22    Limitation of Liability.
(a)    Notwithstanding anything to the contrary contained herein, the obligations of the Class A Revolving Conduit Lenders under this Agreement are solely the corporate obligations of each such Class A Revolving Conduit Lender and shall be payable only at such time as funds are actually received by, or are available to, such Class A Revolving Conduit Lender in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Class A Revolving Conduit Lender and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Class A Revolving Conduit Lender. Each party hereto agrees that the payment of any claim (as defined in Section 101 of Title 11 of the Bankruptcy Code) of any such party shall be subordinated to the payment in full of all Commercial Paper.
(b)    No recourse under any obligation, covenant or agreement of any Class A Revolving Conduit Lender contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such Class A Revolving Conduit Lender or any of its Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of such Class A Revolving Conduit Lender, and that no personal liability whatever shall attach to or be

118
 

incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any Class A Revolving Conduit Lender or any of its Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of such Class A Revolving Conduit Lender contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by any Class A Revolving Conduit Lender of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or fraudulent omissions made by them.
9.23    No Proceedings. Company, each Lender, each Managing Agent and each Agent each hereby agrees that it will not institute against any Class A Revolving Conduit Lender any proceeding under any Debtor Relief Laws so long as any Commercial Paper issued by such Conduit Lender shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Commercial Paper shall have been outstanding.
9.24    Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
[Remainder of page intentionally left blank]


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

ON DECK CAPITAL, INC., for purposes of Sections 5.11 and 5.15 only

By:    /s/ Howard Katzenberg    
Name:    Howard Katzenberg
Title:    Chief Financial Officer


ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC, as Company

By:    /s/ Howard Katzenberg    
Name:    Howard Katzenberg
Title:    Chief Financial Officer


DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent and Collateral Agent

By:    /s/ Nicole Byrns    
Name:    Nicole Byrns
Title:    Director

By:    /s/ Peter Sabino    
Name:     Peter Sabino
Title:    Vice President


DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent, Documentation Agent and Lead Arranger

By:    /s/ Nicole Byrns    
Name:    Nicole Byrns
Title:    Director

By:    /s/ Peter Sabino    
Name:     Peter Sabino
Title:    Vice President


 




                    
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent

By:    /s/ Lucy Hsieh    
Name:    Lucy Hsieh
Title:    Assistant Vice President

By:    /s/ Michelle Lee    
Name:    Michelle Lee
Title:    Vice President

DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Class A Revolving Lender

By:    /s/ Nicole Byrns    
Name:    Nicole Byrns
Title:    Director

By:    /s/ Peter Sabino    
Name:     Peter Sabino
Title:    Vice President


DEUTSCHE BANK AG, NEW YORK BRANCH, as Class B Agent

By:    /s/ Nicole Byrns    
Name:    Nicole Byrns
Title:    Director

By:    /s/ Peter Sabino    
Name:     Peter Sabino
Title:    Vice President


Exhibit
Exhibit 10.2

ONDECK ASSET SECURITIZATION TRUST II LLC,
as Issuer


and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee

______________________________

BASE INDENTURE
Dated as of May 17, 2016

______________________________

Asset Backed Notes
(Issuable in Series of Notes)





TABLE OF CONTENTS




 
 
 
Page

ARTICLE 1.
 
 
 
 
DEFINITIONS AND INCORPORATION BY REFERENCE
1

Section 1.1.
 
Definitions
1

Section 1.2.
 
Cross-References
1

Section 1.3.
 
Accounting and Financial Determinations; No Duplication
1

Section 1.4.
 
Rules of Reconstruction
2

 
 
 
 
ARTICLE 2.
 
 
 
 
THE NOTES
2

Section 2.1.
 
Designation and Terms of Notes
2

Section 2.2.
 
Notes Issuable in Series
3

Section 2.3.
 
Execution and Authentication
5

Section 2.4.
 
Registration of Transfer and Exchange of Notes
6

Section 2.5.
 
Mutilated, Destroyed, Lost or Stolen Notes
9

Section 2.6.
 
Appointment of Paying Agent
10

Section 2.7.
 
Persons Deemed Owners
11

Section 2.8.
 
Noteholder List
11

Section 2.9.
 
Treasury Notes
12

Section 2.10.
 
Book-Entry Notes
12

Section 2.11.
 
Definitive Notes
13

Section 2.12.
 
Global Note
14

Section 2.13.
 
Principal and Interest
14

Section 2.14.
 
Cancellation
15

 
 
 
 
ARTICLE 3.
 
 
 
 
SECURITY
15

Section 3.1.
 
Grant of Security Interest
15

Section 3.2.
 
Transaction Documents
17

Section 3.3.
 
Release of Issuer Assets
17

Section 3.4.
 
Officer's Certificate
18

Section 3.5.
 
Stamp, Other Similar Taxes and Filing Fees
18

 
 
 
 
ARTICLE 4.
 
 
 
 
REPORTS
 
Section 4.1.
 
Servicer Reports
18

Section 4.2.
 
Communication to Noteholders
19

Section 4.3.
 
Rule 144A Information
19

Section 4.4.
 
Reports by the Issuer
19

Section 4.5.
 
Reports by the Indenture Trustee
20


i


TABLE OF CONTENTS
(continued)
Page


 
 
 
 
ARTICLE 5.
 
 
 
 
ALLOCATION AND APPLICATION OF COLLECTIONS
20

Section 5.1.
 
Issuer Accounts
20

Section 5.2.
 
Collections of Money
21

Section 5.3.
 
Collections and Allocations
21

 
 
 
 
ARTICLE 6.
 
 
 
 
DISTRIBUTIONS
23

Section 6.1.
 
Distributions in General
23

Section 6.2.
 
Optional Prepayment Notes
23

 
 
 
 
ARTICLE 7.
 
 
 
 
REPRESENTATIONS AND WARRANTIES
23

Section 7.1.
 
Existence and Power
23

Section 7.2.
 
Authorization
24

Section 7.3.
 
Binding Effect
24

Section 7.4.
 
Litigation
24

Section 7.5.
 
No ERISA Plan
24

Section 7.6.
 
Tax Filings and Expenses
25

Section 7.7.
 
Disclosure
25

Section 7.8.
 
Investment Company Act
25

Section 7.9.
 
Regulations T, U and X
25

Section 7.10.
 
No Consent
26

Section 7.11.
 
Solvency
26

Section 7.12.
 
Security Interests
26

Section 7.13.
 
Binding Effect of Certain Agreements
27

Section 7.14.
 
Non Existence of Other Agreements
27

Section 7.15.
 
Compliance with Contractual Obligations and Laws
27

Section 7.16.
 
Other Representations
27

Section 7.17.
 
Ownership of the Issuer
28

 
 
 
 
ARTICLE 8.
 
 
 
 
COVENANTS
28

Section 8.1.
 
Payment of Notes
28

Section 8.2.
 
Maintenance of Office or Agency
28

Section 8.3.
 
Payment of Obligations
29

Section 8.4.
 
Conduct of Business and Maintenance of Existence
29

Section 8.5.
 
Compliance with Laws
29

Section 8.6.
 
Inspection of Property, Books and Records
29


ii

TABLE OF CONTENTS
(continued)
Page


Section 8.7.
 
Compliance with Transaction Documents; Issuer Assets
29

Section 8.8.
 
Notice of Defaults
31

Section 8.9.
 
Notice of Material Proceedings
31

Section 8.10.
 
Further Requests
31

Section 8.11.
 
Protection of Issuer Assets
31

Section 8.12.
 
Annual Opinion of Counsel
32

Section 8.13.
 
Liens
32

Section 8.14.
 
Other Indebtedness
32

Section 8.15.
 
Mergers
33

Section 8.16.
 
Sales of Issuer Assets
33

Section 8.17.
 
Acquisition of Assets
33

Section 8.18.
 
Legal Name; Location Under Section 9-301
33

Section 8.19.
 
Organizational Documents
33

Section 8.20.
 
Investments
33

Section 8.21.
 
Non-Petition; No Other Agreements
33

Section 8.22.
 
Other Business
34

Section 8.23.
 
Maintenance of Separate Existence
34

Section 8.24.
 
Use of Proceeds of Notes
34

Section 8.25.
 
No ERISA Plan
34

Section 8.26.
 
Dividends
34

Section 8.27.
 
Tax Matters
34

Section 8.28.
 
Purchase and Sale of Assets
34

 
 
 
 
ARTICLE 9.
 
 
 
 
REMEDIES
35

Section 9.1.
 
Events of Default
35

Section 9.2.
 
Acceleration of Maturity; Rescission and Annulment
36

Section 9.3.
 
Collection of Indebtedness and Suits for Enforcement by the Indenture Trustee
36

Section 9.4.
 
Remedies; Priorities
38

Section 9.5.
 
Optional Preservation of the Issuer Assets
40

Section 9.6.
 
Limitation on Suits
40

Section 9.7.
 
Unconditional Rights of Noteholders to Receive Principal and Interest
41

Section 9.8.
 
Restoration of Rights and Remedies
41

Section 9.9.
 
Rights and Remedies Cumulative
41

Section 9.10.
 
Delay or Omission Not a Waiver
41

Section 9.11.
 
Control by Noteholders
42

Section 9.12.
 
Waiver of Past Defaults
42

Section 9.13.
 
Undertaking for Costs
43

Section 9.14.
 
Waiver of Stay or Extension Laws
43


iii

TABLE OF CONTENTS
(continued)
Page


Section 9.15.
 
Action on Notes
43

 
 
 
 
ARTICLE 10.
 
 
 
 
THE INDENTURE TRUSTEE
44

Section 10.1.
 
Duties of the Indenture Trustee
44

Section 10.2.
 
Rights of the Indenture Trustee
45

Section 10.3.
 
Indenture Trustee's Disclaimer
48

Section 10.4.
 
Indenture Trustee May Own Notes
48

Section 10.5.
 
Notice of Defaults
48

Section 10.6.
 
Compensation; Indemnity
49

Section 10.7.
 
Eligibility Requirements for Indenture Trustee
49

Section 10.8.
 
Resignation or Removal of Indenture Trustee
50

Section 10.9.
 
Successor Indenture Trustee by Merger
51

Section 10.10.
Appointment of Co-Trustee or Separate Trustee
52

Section 10.11.
Representations and Warranties of Indenture Trustee
53

Section 10.12.
Preferential Collection of Claims Against the Issuer
54

 
 
 
 
ARTICLE 11.
 
 
 
 
DISCHARGE OF INDENTURE
54

Section 11.1.
 
Termination of the Issuer's Obligations
54

Section 11.2.
 
Application of Trust Money
55

Section 11.3.
 
Repayment to the Issuer
55

 
 
 
 
ARTICLE 12.
 
 
 
 
AMENDMENTS
55

Section 12.1.
 
Without Consent of the Noteholders
55

Section 12.2.
 
With Consent of the Noteholders
56

Section 12.3.
 
Supplements
58

Section 12.4.
 
Revocation and Effect of Consents
58

Section 12.5.
 
Notation on or Exchange of Notes
58

Section 12.6.
 
The Indenture Trustee to Sign Amendments, etc.
58

Section 12.7.
 
Conformity with Trust Indenture Act
58

 
 
 
 
ARTICLE 13.
 
 
 
 
MISCELLANEOUS
59

Section 13.1.
 
Compliance Certificates
59

Section 13.2.
 
Forms of Documents Delivered to Indenture Trustee
60

Section 13.3.
 
Actions of Noteholders
61

Section 13.4.
 
Notices
62

Section 13.5.
 
Conflict with TIA
64

Section 13.6.
 
Rules by the Indenture Trustee
64


iv

TABLE OF CONTENTS
(continued)
Page


Section 13.7.
 
Duplicate Originals
64

Section 13.8.
 
Benefits of Indenture
64

Section 13.9.
 
Payment on Business Day
64

Section 13.10.
Governing Law
65

Section 13.11.
Severability of Provisions
65

Section 13.12.
Counterparts
65

Section 13.13.
Successors
65

Section 13.14.
Table of Contents, Headings, etc.
65

Section 13.15.
Recording of Indenture
65

Section 13.16.
No Petition
66

Section 13.17.
Non-Recourse
66

Section 13.18.
Waiver of Jury Trial
66

Section 13.19.
Submission to Jurisdiction
66

 
 
 
 
EXHIBIT A
 
Form of Deposit Report
 
EXHIBIT B
 
Form of Settlement Statement
 
 
 
 
 




v



BASE INDENTURE, dated as of May 17, 2016, between ONDECK ASSET SECURITIZATION TRUST II LLC, a special purpose limited liability company established under the laws of Delaware, as issuer (the “Issuer”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee (in such capacity, the “Indenture Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the execution and delivery of this Base Indenture to provide for the issuance from time to time of one or more Series of Asset Backed Notes (the “Notes”), issuable as provided in this Base Indenture; and
WHEREAS, all things necessary to make this Base Indenture a legal, valid and binding agreement of the Issuer, 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;
NOW, THEREFORE, for and in consideration of the premises and the receipt of the Notes by the Noteholders, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Noteholders, as follows:
ARTICLE 1.

DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.    Definitions.
Certain capitalized terms used herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms in the Definitions List attached hereto as Schedule I (the “Definitions List”), as such Definitions List may be amended, restated, modified, or supplemented from time to time in accordance with the provisions hereof.
Section 1.2.    Cross-References.
Unless otherwise specified, references in this Base Indenture and in each other Transaction Document to any Article or Section are references to such Article or Section of this Base Indenture or such other Transaction Document, as the case may be and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
Section 1.3.    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

1




the purpose of the Indenture, such determination or calculation shall be made, to the extent applicable and except as otherwise specified in the 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 or under any other Transaction Documents shall be made without duplication.
Section 1.4.    Rules of Construction.
In the Indenture (including any schedules, exhibits and annexes thereto), unless the context otherwise requires:
(i)    the singular includes the plural and vice versa;
(ii)    references to an agreement or document are to such agreement or document as amended, supplemented, restated and otherwise modified from time to time and to any successor agreement or document, as applicable (whether or not already so stated);
(iii)    unless specifically stated otherwise, all references to any statute, rule or regulation are to such statute, rule or regulation as amended, restated, supplemented or otherwise modified from time to time and to any successor statute, rule or regulation;
(iv)    reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by the Indenture, and reference to any Person in a particular capacity only refers to such Person in such capacity;
(v)    reference to any gender includes the other gender;
(vi)    “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term;
(vii)    with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”;
(viii)    references to the "related Monthly Period" with respect to any Payment Date mean the Monthly Period that immediately precedes such Payment Date; and
(ix)    references to the “related Payment Date” with respect to any Monthly Period mean the Payment Date that immediately follows such Monthly Period.
ARTICLE 2.
    

THE NOTES
Section 2.1.    Designation and Terms of Notes.

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(a)    Each Series of Notes and any Class thereof shall be issued in fully registered form (the “Registered Notes”), substantially in the form specified in the applicable Indenture Supplement, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted hereby or by the related Indenture Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined to be appropriate by the Authorized Officer executing such Notes, as evidenced by his execution of the Notes. All Notes of any Series of Notes, except as specified in the related Indenture Supplement, shall be equally and ratably entitled as provided herein to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery, all in accordance with the terms and provisions of this Base Indenture and the applicable Indenture Supplement. The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture is unlimited. Each Series of Notes shall be issued in the denominations set forth in the related Indenture Supplement.
Section 2.2.    Notes Issuable in Series.
(a)    The Notes may be issued in one or more Series. Each Series of Notes shall be created by an Indenture Supplement.
(b)    Notes of a new Series of Notes from time to time may be executed by the Issuer and delivered to the Indenture Trustee for authentication and thereupon the same shall be authenticated and delivered by the Indenture Trustee upon the receipt by the Indenture Trustee of an Issuer Request at least two Business Days (or, in the case of the initial Series of Notes, on the Series Closing Date for such Series of Notes and, in the case of any other Series of Notes, such shorter time as is acceptable to the Indenture Trustee) in advance of the related Series Closing Date and upon delivery by the Issuer to the Indenture Trustee, and receipt by the Indenture Trustee, of the following:
(i)    an Issuer Order authorizing and directing the authentication and delivery of the Notes of such new Series of Notes by the Indenture Trustee and specifying the designation of such new Series of Notes, the Initial Invested Amount (or the method for calculating such Initial Invested Amount) of such new Series of Notes and the Note Rate (or the method for allocating interest payments or other cash flows to such Series), if any, with respect to such Series;
(ii)    an Indenture Supplement satisfying the criteria set forth in this Section 2.2(b) executed by the Issuer and specifying the Principal Terms of such new Series of Notes;
(iii)    a Tax Opinion;
(iv)    written confirmation from each Rating Agency that the Rating Agency Condition shall have been satisfied with respect to such issuance;

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(v)    an Officer’s Certificate of the Issuer, that after giving effect to the issuance of such new Series of Notes on the related Series Closing Date, (i) neither an Amortization Event nor a Potential Amortization Event with respect to any Series of Notes (other than any Series of Notes that will be refinanced with the proceeds of such new Series of Notes) is continuing or will occur as a result of such issuance, (ii) the issuance of the new Series of Notes will not result in any breach of any of the terms, conditions or provisions of or constitute a default under any indenture, mortgage, deed of trust or other agreement or instrument to which the Issuer is a party or by which it or its property is bound or any order of any court or administrative agency entered in any suit, action or other judicial or administrative proceeding to which the Issuer is a party or by which it or its property may be bound or to which it or its property may be subject, (iii) all conditions precedent provided in this Base Indenture and the related Indenture Supplement with respect to the authentication and delivery of the new Series of Notes have been complied with, and (iv) all representations and warranties of the Issuer set forth in the Indenture and each Transaction Document are true and correct in all material respects (to the extent any such representations and warranties do not incorporate a materiality limitation in their terms) as of the Series Closing Date.
(vi)    such other documents, instruments, certifications, agreements or other items as the Indenture Trustee may reasonably require.
(c)    In conjunction with the issuance of a new Series of Notes, the parties hereto shall execute an Indenture Supplement, which shall specify the relevant terms with respect to such newly issued Series of Notes, which may include without limitation:
(i)    its name or designation;
(ii)    the Initial Invested Amount of such Series or the method of calculating the Initial Invested Amount of such Series;
(iii)    the Note Rate (or formula for the determination thereof) with respect to such Series;
(iv)    the Series Closing Date;
(v)    each Rating Agency rating such Series, if any;
(vi)    the name of the Clearing Agency, if any;
(vii)    the interest payment date or dates and the date or dates from which interest shall accrue;
(viii)    the Legal Final Payment Date and the Series Termination Date;
(ix)    the method of allocating Collections with respect to such Series, including the Invested Percentage;

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(x)    the method by which the principal amount of Notes of such Series shall amortize or accrete;
(xi)    the names of any Series Accounts to be used by such Series and the terms governing the operation of any such accounts and the use of moneys therein;
(xii)    the Series Servicing Fee and the Series Backup Servicing Fee;
(xiii)    the terms on which the Notes of such Series may be redeemed, repurchased or remarketed to other investors;
(xiv)    any deposit of funds to be made into any Series Account on the Series Closing Date;
(xv)    the number of Classes of such Series, and if more than one Class, the rights and priorities of each such Class;
(xvi)    the priority of any Series of Notes with respect to any other Series of Notes;
(xvii)    the interest rate hedges required to be maintained with respect to such Series, if any; and
(xviii)    any other relevant terms of such Series (including whether or not such Series will be pledged as collateral for an issuance by an Affiliate Issuer) that do not change the terms of any Series of Notes Outstanding and that do not prevent the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding with respect to the issuance of such new Series of Notes (all such terms, the “Principal Terms” of such Series).
The terms of such Indenture Supplement may modify or amend the terms of this Base Indenture solely as applied to such new Series of Notes.
(d)    Unless otherwise specified in a Series Supplement for a new Series of Notes, the Issuer may direct the Indenture Trustee to deposit all or a portion of the net proceeds from the issuance of such new Series of Notes into a Series Account for another Series of Notes and may specify that the proceeds from the sale of such new Series of Notes may be used to reduce the Invested Amount of another Series of Notes.
Section 2.3.    Execution and Authentication.
(a)    The Notes shall, upon issue pursuant to Section 2.2, be executed on behalf of the Issuer by an Authorized Officer and delivered by the Issuer to the Indenture Trustee for authentication and redelivery as provided herein. If an Authorized Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.

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(b)    At any time and from time to time after the execution and delivery of this Base Indenture, the Issuer may deliver Notes of any particular Series of Notes executed by the Issuer to the Indenture Trustee for authentication, together with one or more Issuer Orders for the authentication and delivery of such Notes, and the Indenture Trustee, in accordance with such Issuer Order and this Base Indenture, shall authenticate and deliver such Notes. If specified in the related Indenture Supplement for any Series of Notes, the Indenture Trustee shall authenticate and deliver outside the United States the Global Note that is issued upon original issuance thereof, upon receipt of an Issuer Order, to the Depository against payment of the purchase price therefor. If specified in the related Indenture Supplement for any Series of Notes, the Indenture Trustee shall authenticate Book-Entry Notes that are issued upon original issuance thereof, upon receipt of an Issuer Order, to a Clearing Agency, or its nominee as provided in Section 2.10 against payment of the purchase price thereof.
(c)    No Note shall be entitled to any benefit under the 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 the Indenture Trustee by the manual signature of a Responsible Officer. Such signatures on such certificate shall be conclusive evidence, and the only evidence, that the Note has been duly authenticated under the Indenture. The Indenture Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. Unless limited by the term of such appointment, an authenticating agent may authenticate Notes whenever the Indenture Trustee may do so. Each reference in this Base Indenture to authentication by the Indenture Trustee includes authentication by such agent. The Indenture Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Notes of a Series of Notes issued under the within mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee
By: ________________________________
        Authorized Signatory
(d)    Each Note shall be dated and issued as of the date of its authentication by the Indenture Trustee.
(e)    Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Note to the Indenture Trustee for cancellation as provided in Section 2.14, together with a written statement (which need not comply with Section 13.2 and need not be accompanied by an Opinion of Counsel) stating that such Note has never been issued and sold by the Issuer, for all purposes of the Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of the Indenture.
Section 2.4.    Registration of Transfer and Exchange of Notes.

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(a)    The Issuer shall cause to be kept at the office or agency to be maintained by a transfer agent and registrar (the “Transfer Agent and Registrar”), 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 of each Series of Notes (unless otherwise provided in the related Indenture Supplement) and of transfers and exchanges of the Notes as herein provided. Deutsche Bank Trust Company Americas 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. Deutsche Bank Trust Company Americas shall be permitted to resign as Transfer Agent and Registrar upon 30 days’ written notice to the Indenture Trustee; provided, however, that such resignation shall not be effective and Deutsche Bank Trust Company Americas shall continue to perform its duties as Transfer Agent and Registrar until the Indenture Trustee has appointed a successor Transfer Agent and Registrar with the written consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by the Issuer as the Transfer Agent and Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Transfer Agent and Registrar and of the location, and any change in the location, of the Transfer Agent and Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof.
An institution succeeding to the corporate agency business of the Transfer Agent and Registrar shall continue to be the Transfer Agent and Registrar without the execution or filing of any paper or any further act on the part of the Indenture Trustee or such Transfer Agent and Registrar.
The Transfer Agent and Registrar shall maintain in The City of New York (and, if so specified in the related Indenture Supplement for any Series of Notes, any other city designated in such Indenture Supplement) an office or offices or agency or agencies where Notes may be surrendered for registration of transfer or exchange. The Transfer Agent and Registrar initially designates DB Services Americas, Inc., MSJCK01-0218, 5022 Gate Parkway, Suite 200, Jacksonville, Florida 32256, Attention: Shareholder Services for such purposes. The Transfer Agent and Registrar shall give prompt written notice to the Indenture Trustee, the Issuer and to the Noteholders of any change in the location of such office or agency.
Upon surrender for registration of transfer of any Note at the office or agency of the Transfer Agent and Registrar, if the requirements of Section 2.4(b) and Section 8-401(a) of the UCC are met, the Issuer shall execute and after the Issuer has executed, the Indenture Trustee shall authenticate and (if the Transfer Agent and Registrar is different than the Indenture Trustee, then the Transfer Agent and Registrar shall) deliver to the Noteholder, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations, of the same Class and a like aggregate principal amount.
At the option of any Holder of Registered Notes, Registered Notes may be exchanged for other Registered Notes of the same Series of Notes in authorized denominations

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of like aggregate principal amount, upon surrender of the Registered Notes to be exchanged at any office or agency of the Transfer Agent and Registrar maintained for such purpose.
Whenever any Notes of any Series of Notes are so surrendered for exchange, if the requirements of Section 8-401(a) of the UCC are met, the Issuer shall execute and after the Issuer has executed, the Indenture Trustee shall authenticate and (if the Transfer Agent and Registrar is different than the Indenture Trustee, then the Transfer Agent and Registrar shall) deliver to the Noteholder, the Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of the Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Indenture Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing, unless otherwise provided in the related Indenture Supplement, with a medallion signature guarantee, and (ii) accompanied by such other documents as the Indenture Trustee may require.
The preceding provisions of this Section 2.4 notwithstanding, the Indenture Trustee or the Transfer Agent and Registrar, as the case may be, shall not be required to register the transfer or exchange of any Note of any Series of Notes for a period of 15 days preceding the due date for any payment in full of the Notes of such Series.
Unless otherwise provided in the related Indenture Supplement, 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.
All Notes surrendered for registration of transfer and exchange shall be canceled by the Transfer Agent and Registrar and disposed of in a manner satisfactory to the Indenture Trustee. The Indenture Trustee shall cancel and destroy any Global Notes upon its exchange in full for Definitive Notes.
The Issuer shall execute and 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 the Indenture and the Notes.
None of the Indenture Trustee, the Transfer Agent or the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depository participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates

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and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
The Indenture Trustee, the Transfer Agent, the Registrar and the Paying Agent shall have no responsibility for any actions taken or not taken by the Depository.
(b)    Unless otherwise provided in the related Indenture Supplement, registration of transfer of Registered Notes containing a legend relating to the restrictions on transfer of such Registered Notes (which legend shall be set forth in the Indenture Supplement relating to such Notes) shall be effected only if the conditions set forth in such related Indenture Supplement are satisfied.
Section 2.5.    Mutilated, Destroyed, Lost or Stolen Notes.
If (a) 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 (b) there is delivered to the Transfer Agent and Registrar and the Indenture Trustee such security or indemnity as may be reasonably required by them to save each of them harmless, then provided that the requirements of Section 8-405 of the UCC are met, the Issuer shall execute and after the Issuer has executed, the Indenture Trustee shall 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 new Note of like tenor and aggregate principal amount; provided, however, that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become or within seven days shall be due and payable, 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 (within the meaning of Section 8-303 of the UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer, the Transfer Agent and Registrar 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, the Transfer Agent and Registrar or the Indenture Trustee in connection therewith.
In connection with the issuance of any new Note under this Section 2.5, the Indenture Trustee or the Transfer Agent and Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Indenture Trustee and the Transfer Agent and Registrar) connected therewith. Any duplicate Note issued pursuant to this Section 2.5 shall

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constitute an original contractual obligation of the Issuer whether or not the lost, stolen or destroyed note shall be found at any time.
Section 2.6.    Appointment of Paying Agent.
(a)    The Indenture Trustee may appoint a Paying Agent with respect to the Notes. The Indenture Trustee hereby appoints Deutsche Bank Trust Company Americas as the initial Paying Agent. The Paying Agent shall have the revocable power to withdraw funds and make distributions to Noteholders from the appropriate account or accounts maintained for the benefit of Noteholders as specified in this Base Indenture or the related Indenture Supplement for any Series of Notes pursuant to Article 5. The Indenture Trustee may revoke such power and remove the Paying Agent, if the Indenture Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under the Indenture in any material respect or for other good cause. The Indenture Trustee shall notify each Rating Agency, if any, of the removal of any Paying Agent. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice to the Indenture Trustee. In the event that any Paying Agent shall no longer be the Paying Agent, the Indenture Trustee shall appoint a successor to act as Paying Agent (which shall be a bank or trust company and may be the Indenture Trustee) with the written consent of the Issuer, which consent shall not be required if such successor Paying Agent is the Indenture Trustee. Any reference in the Indenture to the Paying Agent shall include any co-paying agent unless the context requires otherwise.
(b)    The Indenture Trustee shall cause each Paying Agent (other than itself) 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:
(i)    hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii)    give the Indenture Trustee notice of any default by the Issuer of which it 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 Notes if at any time it ceases to meet the standards required to be met by the Paying Agent at the time of its appointment; and
(v)    comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes

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imposed thereon and with respect to any applicable reporting requirements in connection therewith.
An institution succeeding to the corporate agency business of the Paying Agent shall continue to be the Paying Agent without the execution or filing of any paper or any further act on the part of the Indenture Trustee or such Paying Agent.
(c)    Subject to applicable laws with respect to escheat of funds, any money held by the Indenture Trustee or any Paying Agent or a Clearing Agency in trust for the payment of any amount due with respect to any Note 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 Request; and the Holder of such Note 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 or 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 written direction and 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, and in a newspaper customarily published on each Business Day and of general circulation in London, if applicable, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 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 2.7.    Persons Deemed Owners.
Prior to due presentation of a Note for registration of transfer, the Indenture Trustee, the Paying Agent and the Transfer Agent and Registrar shall treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving distributions pursuant to Article 5 (as described in any Indenture Supplement) and for all other purposes whatsoever, and neither the Indenture Trustee, the Paying Agent nor the Transfer Agent and Registrar shall be affected by any notice to the contrary.
Section 2.8.    Noteholder List.
The Indenture Trustee will furnish or cause to be furnished by the Transfer Agent and Registrar to the Issuer or the Paying Agent, within five Business Days after receipt by the Indenture Trustee of a written request therefor from the Issuer or the Paying Agent, respectively, in writing, a list in such form as the Issuer or the Paying Agent may reasonably require, of the names and addresses of the Noteholders of each Series of Notes as of the most recent Record Date for payments to such Noteholders. Unless otherwise provided in the related Indenture Supplement, Noteholders of any Series of Notes having an aggregate principal amount aggregating not less than 10% of the Invested Amount of such Series (the “Applicants”) may apply in writing to the Indenture Trustee, and if such application states that the Applicants desire

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to communicate with other Noteholders of any Series of Notes with respect to their rights under the 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 to its reasonable satisfaction by such Applicants for its costs and expenses, shall 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 held by the Indenture Trustee and shall give the Issuer notice that such request has been made, within five Business Days after the receipt of such application. Such list shall be as of a date no more than 45 days prior to the date of receipt of such Applicants’ request. Every Noteholder, by receiving and holding a Note, agrees with the Indenture Trustee that neither the Indenture Trustee nor the Transfer Agent and Registrar shall be held liable by reason of the disclosure of any such information as to the names and addresses of the Noteholders hereunder, regardless of the source from which such information was obtained.
The Indenture Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders of each Series of Notes. If the Indenture Trustee is not the Transfer Agent and Registrar, the Issuer shall furnish to the Indenture Trustee at least seven Business Days before each Payment Date and at such other time as the Indenture Trustee may request in writing, a list in such form and as of such date as the Indenture Trustee may reasonably require of the names and addresses of Noteholders of each Series of Notes.
Section 2.9.    Treasury Notes.
In determining whether the Noteholders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or any Affiliate of the Issuer (other than an Affiliate Issuer) shall be considered as though they are not Outstanding, except that for the purpose of determining whether the Indenture Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of which the Indenture Trustee has received written notice of such ownership shall be so disregarded. The Issuer shall promptly furnish to the Indenture Trustee written notice of the acquisition, transfer or other ownership of any Notes by the Issuer or any Affiliate of the Issuer (other than an Affiliate Issuer); provided that the failure to furnish such notice shall not affect any other rights or obligations hereunder, and shall not under any circumstance constitute an Event of Default, an Amortization Event with respect to any Series of Notes, or any other default or adverse consequence under the Transaction Documents. Absent written notice to the Indenture Trustee of such ownership, the Indenture Trustee shall not be deemed to have knowledge of the identity of the individual beneficial owners of the Notes. Upon request of the Indenture Trustee, the Issuer shall promptly furnish to the Indenture Trustee an Officer’s Certificate listing and identifying all Notes, if any, known by the Issuer to be owned or held by, or for the account of, the Issuer or any Affiliate of the Issuer (other than an Affiliate Issuer), and the Indenture Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are entitled to participate in any direction, waiver, consent for the purpose of any such determination.

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Section 2.10.    Book-Entry Notes.
Unless otherwise provided in any related Indenture Supplement, the Notes, upon original issuance, shall be issued in the form of typewritten Notes representing the Book-Entry Notes, to be delivered to the depository specified in such Indenture Supplement (the “Depository”) which shall be the Clearing Agency, on behalf of such Series of Notes. The Notes of each Series of Notes shall, unless otherwise provided in the related Indenture Supplement, initially be registered on the Note Register in the name of the Clearing Agency or the nominee of the Clearing Agency. No Beneficial Owner will receive a definitive note representing such Beneficial Owner’s interest in the related Series of Notes, except as provided in Section 2.11. Unless and until definitive, fully registered Notes of any Series of Notes (“Definitive Notes”) have been issued to Beneficial Owners pursuant to Section 2.11:
(a)    the provisions of this Section 2.10 shall be in full force and effect with respect to each such Series;
(b)    the Issuer, the Paying Agent, the Transfer Agent and Registrar and the Indenture Trustee may deal with the Clearing Agency and the applicable Clearing Agency Participants for all purposes (including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the sole Holder of the Notes, and shall have no obligation to the Beneficial Owners; and
(c)    the rights of Beneficial Owners of each such Series shall be exercised only through the Clearing Agency and the applicable Clearing Agency Participants and shall be limited to those established by law and agreements between such Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants, and all references in the Indenture to actions by the Noteholders shall refer to actions taken by the Clearing Agency upon instructions from the Clearing Agency Participants, and all references in the Indenture to distributions, notices, reports and statements to the Noteholders shall refer to distributions, notices, reports and statements to the Clearing Agency, as registered holder of the Notes of such Series for distribution to the Beneficial Owners in accordance with the procedures of the Clearing Agency. Pursuant to the Depository Agreement applicable to a Series of Notes, unless and until Definitive Notes of such Series are issued pursuant to Section 2.11, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal and interest on the Notes to such Clearing Agency Participants.
Section 2.11.    Definitive Notes.
(a)    The Notes of any Series of Notes, to the extent provided in the related Indenture Supplement, upon original issuance, may be issued in the form of Definitive Notes. The applicable Indenture Supplement shall set forth the legend relating to the restrictions on transfer applicable to such Definitive Notes and such other restrictions as may be applicable.
(b)    If (i) (A) the Issuer advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to discharge properly its responsibilities under

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the applicable Depository Agreement, and (B) the Indenture Trustee or the Issuer is unable to locate a qualified successor, (ii) the Issuer, at its option, advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency with respect to any Series of Notes or (iii) after the occurrence of an Event of Default or a Servicer Default, Beneficial Owners of a Majority in Interest of a Series of Notes advise the Indenture Trustee and the applicable Clearing Agency through the applicable Clearing Agency Participants in writing that the continuation of a book-entry system through the applicable Clearing Agency is no longer in the best interests of such Beneficial Owners, the Indenture Trustee shall notify all Beneficial Owners of such Series, through the applicable Clearing Agency Participants, of the occurrence of any such event and of the availability of Definitive Notes to Beneficial Owners of such Series requesting the same. Upon surrender to the Indenture Trustee of the Notes of such Series by the applicable Clearing Agency, accompanied by registration instructions from the applicable Clearing Agency for registration, the Issuer shall execute and the Indenture Trustee shall authenticate and (if the Transfer Agent and Registrar is different than the Indenture Trustee, then the Transfer Agent and Registrar shall) deliver the Definitive Notes in accordance with the instructions of the Clearing Agency. Neither the Issuer nor the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes of such Series all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency shall be deemed to be imposed upon and performed by the Indenture Trustee, to the extent applicable with respect to such Definitive Notes, and the Indenture Trustee shall recognize the Holders of the Definitive Notes of such Series as Noteholders of such Series hereunder.
Section 2.12.    Global Note.
If specified in the related Indenture Supplement for any Series of Notes, the Notes may be initially issued in the form of a single temporary Global Note (the “Global Note”) in bearer form, without interest coupons, in the denomination of the Initial Invested Amount and substantially in the form attached to the related Indenture Supplement. Unless otherwise specified in the related Indenture Supplement, the provisions of this Section 2.12 shall apply to such Global Note. The Global Note will be authenticated by the Indenture Trustee upon the same conditions, in substantially the same manner and with the same effect as the Definitive Notes. The Global Note may be exchanged in the manner described in the related Indenture Supplement for Registered Notes in definitive form.
Section 2.13.    Principal and Interest.
(a)    The principal of each Series of Notes shall be payable at the times and in the amount set forth in the related Indenture Supplement and in accordance with Section 6.1.
(b)    Each Series of Notes shall accrue interest as provided in the related Indenture Supplement and such interest shall be payable on each Payment Date for such Series in accordance with Section 6.1 and the related Indenture Supplement.

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(c)    Except as provided in the following sentence, the Person in whose name any Note is registered at the close of business on any Record Date with respect to a Payment Date for such Note shall be entitled to receive the principal and interest 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. Any interest payable at maturity shall be paid to the Person to whom the principal of such Note is payable.
(d)    If the Issuer defaults in the payment of interest on the Notes of any Series of Notes, such interest, to the extent paid on any date that is more than five Business Days after the applicable due date, shall, at the option of the Issuer, cease to be payable to the Persons who were Noteholders of such Series on the applicable Record Date and the Issuer shall pay the defaulted interest in any lawful manner, plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Noteholders of such Series on a subsequent special record date which date shall be at least five Business Days prior to the payment date, at the rate provided in the Indenture and in the Notes of such Series. The Issuer shall fix or cause to be fixed each such special record date and payment date, and at least 15 days before the special record date, the Issuer (or the Indenture Trustee, in the name of and at the expense of the Issuer) shall mail to Noteholders of such Series a notice that states the special record date, the related payment date and the amount of such interest to be paid; provided, however, that if the Issuer elects to have the Indenture Trustee mail such notice to the Noteholders of such Series in the name and at the expense of the Issuer, then the Issuer shall provide to the Indenture Trustee, at least five Business Days prior to the date such notice is to be mailed to the Noteholders of such Series, an Issuer Order requesting that the Indenture Trustee give such notice and setting forth the information to be stated in such notice.
Section 2.14.    Cancellation.
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. The Transfer Agent and Registrar shall forward to the Indenture Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Indenture Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and the principal of and all accrued interest on all such cancelled Notes shall be deemed to have been paid in full (and such payment of principal and interest shall be deemed to have been made to the relevant Noteholders) and such cancelled Notes shall be deemed no longer to be outstanding for all purposes hereunder. The Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Indenture Trustee for cancellation. All cancelled Notes held by the Indenture Trustee shall be disposed of in accordance with the Indenture Trustee’s standard disposition procedures unless the Issuer shall direct that cancelled Notes be returned to it pursuant to an Issuer Order.

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ARTICLE 3.
SECURITY
Section 3.1.    Grant of Security Interest.
(a)    To secure the Issuer Obligations, the Issuer hereby pledges, assigns, conveys, delivers, transfers and sets over to the Indenture Trustee, for the benefit of the Noteholders, and hereby grants to the Indenture Trustee, for the benefit of the Noteholders, a security interest in, all of the following property now owned or at any time hereafter acquired by the Issuer or in which the Issuer now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”):
(i)    all Pooled Loans including all Pooled Loans hereinafter acquired by the Issuer, and all Related Security with respect thereto, including all monies due and to become due to the Issuer thereon and all amounts received with respect thereto on and after the applicable Transfer Date;
(ii)    the Collection Account and the Lockbox Account, including all funds held in the Collection Account and the Lockbox Account and all securities, whether certificated or uncertificated, security entitlements, or instruments, if any, from time to time representing or evidencing investment of such amounts and all proceeds thereof, and all claims of the Issuer in and to such funds;
(iii)    each of the Transaction Documents (other than the Indenture, the Notes and any agreements relating to the issuance or the purchase of any Notes), including all monies due and to become due to the Issuer thereunder or in connection therewith, whether payable as fees, expenses, costs, indemnities, insurance recoveries, damages for the breach thereof or otherwise, and all rights, remedies, powers, privileges and claims of the Issuer under or with respect to each of such Transaction Documents (whether arising pursuant to the terms of such Transaction Documents or otherwise available to the Issuer at law or in equity), including, without limitation, the right of the Issuer to enforce each of such Transaction Documents and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to such Transaction Documents; and
(iv)    all proceeds of any and all of the foregoing including, without limitation, all present and future claims, demands, causes of action and chooses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of 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, condemnation awards, 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.

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(b)    The foregoing grant is made in trust to secure the Issuer Obligations, equally and ratably without prejudice, priority (except, with respect to any Series of Notes, as otherwise stated in the applicable Indenture Supplement) or distinction, and to secure compliance with the provisions of this Base Indenture and any Indenture Supplement, all as provided in the Indenture. The Indenture Trustee, on behalf of the Noteholders, acknowledges and accepts such grant. This Base Indenture constitutes a security agreement under the UCC.
(c)    Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Base Indenture or the rights of the Indenture Trustee hereunder, the Issuer shall be permitted, without the consent of the Indenture Trustee, to (i) agree to purchase Loans from the Seller pursuant to Section 2.01(b) of the Loan Purchase Agreement, (ii) consent to judicial proceedings by the Servicer against Obligors pursuant to Section 2(a) of the Servicing Agreement, (iii) terminate the Person acting as the Backup Servicer in accordance with Section 4.2.3 of the Backup Servicing Agreement, provided, that, prior to the effectiveness of any such termination, a Replacement Backup Servicer (as defined in the Backup Servicing Agreement) shall have been appointed in accordance with Section 4.3 of the Backup Servicing Agreement and (iv) remove the Person acting as the Custodian under the Custodial Agreement pursuant to Section 5.3(m) of the Custodial Agreement, provided, that, prior to the effectiveness of any such removal, a replacement Custodian shall have been appointed in accordance with Section 5.3(m) of the Custodial Agreement.
Section 3.2.    Transaction Documents.
Promptly following a request from the Indenture Trustee, as directed in writing by the Holders of a Majority in Interest of any Outstanding Series of Notes, to do so and at the Issuer’s expense, the Issuer agrees to take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by any party to a Transaction Document of its obligations under such Transaction Document in accordance with the applicable terms thereof, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by such party of each of its obligations under such Transaction Document. If (i) the Issuer shall have failed, within 30 days of receiving the direction of the Indenture Trustee, to take commercially reasonable action to accomplish such directions of the Indenture Trustee, (ii) the Issuer refuses to take any such action, or (iii) the Indenture Trustee reasonably determines that such action must be taken immediately, the Indenture Trustee may (without obligation) take such previously directed action and any related action permitted under the Indenture (without the need under this provision or any other provision under the Indenture to direct the Issuer to take such action), on behalf of the Issuer and the Noteholders.
Section 3.3.    Release of Issuer Assets.

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(a)    The Indenture Trustee shall when required by the provisions of this Base Indenture and any Indenture Supplement execute instruments to release property from the Lien of this Base Indenture and any Indenture Supplement, or convey the Indenture Trustee’s interest in the same. No party relying upon an instrument executed by the Indenture Trustee as provided in this Section 3.3 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.
(b)    The Indenture Trustee shall, at such time as there are no Notes Outstanding and upon notification of the conditions set forth in Article 11, release any remaining portion of the Issuer Assets from the Lien of this Base Indenture and any Indenture Supplement and release to the Issuer any funds then on deposit in the Issuer Accounts. The Indenture Trustee shall release property from the Lien of the Indenture pursuant to this Section 3.3(b) only upon receipt of an Issuer Order accompanied by an Officer’s Certificate, an Opinion of Counsel and (if the Indenture is qualified under the TIA and the TIA so requires) Independent Certificates in accordance with TIA §§ 314(c) and 314(d)(1) meeting the applicable requirements of Section 13.1.
(c)    Upon any sale of Charged-Off Loans by the Servicer pursuant to Section 2(a) of the Servicing Agreement, the Lien of the Indenture Trustee in those Charged-Off Loans shall be automatically released (without recourse, representation or warranty) without further action required on the part of the Indenture Trustee or the Issuer.
Section 3.4.    Officer’s Certificate.
Notwithstanding anything to the contrary contained herein, in any Indenture Supplement or in any Transaction Document, in connection with any request to the Indenture Trustee to take any action with respect to the release of any property from the Lien of this Base Indenture or any Indenture Supplement or to convey the Indenture Trustee’s interest in the same, the Indenture Trustee shall receive an Officer’s Certificate outlining the steps required to complete any such action, and certifying that (i) such action will not materially and adversely impair the security for the Notes or the rights of any remaining Noteholders and (ii) that all conditions precedent under the Indenture to such action have been satisfied.
Section 3.5.    Stamp, Other Similar Taxes and Filing Fees.
The Issuer shall indemnify and hold harmless the Indenture Trustee and each Noteholder from any present or future claim for liability for any stamp or other similar tax and any penalties or interest with respect thereto, that may be assessed, levied or collected by any jurisdiction in connection with the Indenture (to the extent relating to the Notes or the Collateral). The Issuer shall pay, or reimburse the Indenture Trustee for, any and all amounts in respect of, all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts that may be payable or reasonably determined to be payable in respect of the execution, delivery, performance and/or enforcement of the Indenture.
ARTICLE 4.


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REPORTS
Section 4.1.    Servicer Reports.
The Issuer will maintain, or cause to be maintained, copies of each report delivered to it by the Servicer under the Servicing Agreement, and will make such reports available to the Indenture Trustee upon request, solely for the benefit of the Noteholders of the applicable Series of Notes, and the Indenture Trustee shall make such reports available to such Noteholders as provided under the terms of the Transaction Documents.
In addition, the Issuer will deliver or cause to be delivered to the Indenture Trustee:
(i)    prior to 3:00 P.M. (New York City time) on each Deposit Date, a copy of a report, substantially in the form of Exhibit A, with such changes thereto as are mutually acceptable to the Issuer and the Indenture Trustee from time to time (a “Deposit Report”), prepared and delivered by the Servicer to the Issuer pursuant to the Servicing Agreement, setting forth the aggregate amount of Collections deposited in the Collection Account on such Deposit Date; and
(ii)    prior to 2:00 P.M. (New York City time) on each Monthly Reporting Date, a copy of a settlement statement, substantially in the form of Exhibit B (a “Settlement Statement”), prepared and delivered by the Servicer to the Issuer pursuant to the Servicing Agreement, setting forth the information required to be set forth therein under the Servicing Agreement and each Indenture Supplement and such other information as the Indenture Trustee may reasonably request.
Section 4.2.    Communication to Noteholders.
(a)    If the Indenture is qualified under the TIA, the Noteholders may communicate pursuant to TIA §312(b) with other Noteholders with respect to their rights under the Indenture or under the Notes.
(b)    If the Indenture is qualified under the TIA, the Issuer, the Indenture Trustee and the Transfer Agent and Registrar shall have the protection of TIA §312(c).
Section 4.3.    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 provide to any Noteholder or Beneficial Owner and to any prospective purchaser of Notes designated by such Noteholder or Beneficial Owner upon the request of such Noteholder or Beneficial Owner or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under the Securities Act.

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Section 4.4.    Reports by the Issuer.
(a)    Unless otherwise specified in the related Indenture Supplement, prior to Noon (New York City time) on each Monthly Reporting Date, the Issuer shall deliver to the Indenture Trustee and the Paying Agent, and the Indenture Trustee shall forward to each Noteholder of each Series of Notes Outstanding, the Monthly Settlement Statement with respect to such Series.
(b)    Unless otherwise specified in the related Indenture Supplement, on or before January 31 of each calendar year, beginning with calendar year 2017, the Indenture Trustee shall furnish to each Person who at any time during the preceding calendar year was a Noteholder of a Series of Notes a statement prepared by or on behalf of the Issuer containing the information which is required to be contained in the Monthly Settlement Statements with respect to such Series aggregated for such calendar year or the applicable portion thereof during which such Person was a Noteholder, together with such other customary information (consistent with the treatment of the Notes as debt) as the Issuer deems necessary or desirable to enable the Noteholders to prepare their tax returns (each such statement, an “Annual Noteholders’ Tax Statement”). Such obligations of the Issuer to prepare and the Indenture Trustee to distribute the Annual Noteholders’ Tax Statement 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 4.5.    Reports by the Indenture Trustee.
If the Indenture is qualified under the TIA, within 60 days after each March 31, beginning on March 31 in the first year after the Indenture is qualified under the TIA, if required by TIA § 313(a), the Indenture Trustee shall mail to each Noteholder as required by TIA § 313(c) a brief report dated as of such date that complies with TIA § 313(a). The Indenture Trustee also shall comply with TIA § 313(b). A copy of each such report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Securities and Exchange 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.
ARTICLE 5.
    
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 5.1.    Issuer Accounts.
(a)    Establishment of Collection Account. On or prior to the date hereof, the Issuer, the Collection Account Depository and the Indenture Trustee shall have entered into the Collection Account Control Agreement pursuant to which the Issuer shall establish and maintain the Collection Account for the benefit of the Noteholders. If at any time the Collection Account is no longer an Eligible Deposit Account, the Issuer shall (i) cause the Collection Account to be moved to a Qualified Trust Institution or Qualified Institution, (ii)

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cause the depositary maintaining the new Collection Account to enter into a new Collection Account Control Agreement on terms substantially similar to the existing Collection Account Control Agreement and (iii) deliver to the Indenture Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Indenture Trustee, to the effect that the new Collection Account Control Agreement is effective to create a first priority, perfected security interest in favor of the Indenture Trustee in the Collection Account.
(b)    Establishment of Lockbox Account. On or prior to the date hereof, the Issuer, the Lockbox Account Depository and the Indenture Trustee shall have entered into the Lockbox Account Control Agreement pursuant to which the Issuer shall establish and maintain the Lockbox Account for the benefit of the Noteholders. If at any time the Lockbox Account is no longer an Eligible Deposit Account, the Issuer shall (i) cause the Lockbox Account to be moved to a Qualified Trust Institution or Qualified Institution, (ii) cause the depositary maintaining the new Lockbox Account to enter into a new Lockbox Account Control Agreement on terms substantially similar to the existing Lockbox Account Control Agreement and (iii) deliver to the Indenture Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Indenture Trustee, to the effect that the new Lockbox Account Control Agreement is effective to create a first priority, perfected security interest in favor of the Indenture Trustee in the Lockbox Account.
(c)    Series Accounts. If so provided in the related Indenture Supplement, the Issuer, for the benefit of the related Noteholders, shall establish and maintain one or more Series Accounts and/or administrative subaccounts of the Collection Account to facilitate the proper allocation of Collections in accordance with the terms of such Indenture Supplement. Each such Series Account shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders of such Series. Each such Series Account will be an Eligible Deposit Account, if so provided in the related Indenture Supplement and will have the other features and be applied as set forth in the related Indenture Supplement.
(d)    Administration of the Collection Account and the Lockbox Account. The funds on deposit in the Collection Account and the Lockbox Account shall remain uninvested.
Section 5.2.    Collections of Money.
Except as otherwise 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 the Indenture. The Indenture Trustee shall apply all such money received by it as provided in the Indenture. Except as otherwise provided in the Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Issuer Assets, the Indenture Trustee may (without obligation) take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. Any such

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action shall be without prejudice to any right to claim a Potential Event of Default or Event of Default under the Indenture and any right to proceeds thereafter as provided in Article 9.
Section 5.3.    Collections and Allocations.
(a)    Collections in General. Until this Base Indenture and all Indenture Supplements are terminated pursuant to Section 11.1, the Issuer shall cause all Collections due and to become due to the Issuer or the Indenture Trustee, as the case may be, under or in connection with the Collateral (other than any amounts constituting Overpayment Amounts) to be remitted directly into the Collection Account or the Lockbox Account in accordance with Section 2(a)(i) of the Servicing Agreement. The Issuer agrees that if any Collections shall be received by the Issuer in an account other than the Collection Account or the Lockbox Account, such monies, instruments, cash and other proceeds will not be commingled by the Issuer with any of its other funds or property, if any, but will be held separate and apart therefrom and shall be held in trust by the Issuer for, and immediately (but in any event within two Business Days from receipt) remitted to, the Collection Account or the Lockbox Account, as applicable. Any Collections that are received by the Indenture Trustee pursuant to this Base Indenture shall be promptly deposited in the Collection Account and shall be applied as provided in this Article 5.
(b)    Allocations for Noteholders. On each Deposit Date, the Issuer shall allocate the Collections deposited into the Collection Account on such Deposit Date in accordance with this Article 5 and shall instruct the Indenture Trustee to withdraw the required amounts from the Collection Account and make the required deposits in any Series Account in accordance with this Article 5, as modified by any Indenture Supplement. The Issuer shall make such deposits or payments on the date indicated therein in immediately available funds or as otherwise provided in the Indenture Supplement for any Series of Notes. The Issuer has agreed to furnish to the Indenture Trustee or the Paying Agent, as applicable, written instructions to make the aforementioned withdrawals and payments from the Collection Account and any Series Accounts specified herein or in any Indenture Supplement. The Indenture Trustee and the Paying Agent shall promptly follow any such written instructions.
(c)    Sharing Collections. In the manner described in the related Indenture Supplement, to the extent that Collections that are allocated to any Series of Notes on a Deposit Date are not needed to make payments to Noteholders of such Series of Notes or required to be deposited in a Series Account for such Series Notes on such Deposit Date, such Collections may, at the direction of the Issuer, be applied to cover principal payments due to or for the benefit of Noteholders of another Series of Notes. Any such reallocation will not result in a reduction in the Invested Amount of the Series of Notes to which such Collections were initially allocated.
(d)    Allocations After Certain Events of Default. If all Series of Notes Outstanding shall have been declared to be immediately due and payable pursuant to Section 9.2 as a result of the occurrence of an Event of Default defined in clause (d) or (e) of Section 9.1, then to the extent that Collections that are allocated to any Series of Notes on a Payment Date are not needed to make payments of principal of, or interest on, the Notes of such Series,

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such Collections shall be applied to cover principal payments due on the Notes of all other Series of Notes then Outstanding on a pro rata basis based on the Invested Percentages of such other Series of Notes.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY INDENTURE SUPPLEMENT WITH RESPECT TO ANY SERIES OF NOTES.]
ARTICLE 6.

DISTRIBUTIONS
Section 6.1.    Distributions in General.
(a)    Unless otherwise specified in the applicable Indenture Supplement, on each Payment Date, the Paying Agent shall pay to the Noteholders of each Series of Notes of record on the preceding Record Date the amounts payable thereto hereunder by wire transfer or check mailed first-class postage prepaid to such Noteholder at the address for such Noteholder appearing in the Note Register except that with respect to Notes registered in the name of a Clearing Agency or its nominee, such amounts shall be payable by wire transfer of immediately available funds released by the Indenture Trustee or the Paying Agent from the applicable Series Account no later than 2:00 P.M. (New York City time) on the Payment Date for credit to the account designated by such Clearing Agency or its nominee, as applicable. The final payment of any Definitive Note, however, will be made only upon presentation and surrender of such Definitive Note at the offices or agencies specified in the notice of final distribution with respect to such Definitive Note on a Payment Date that is a Business Day in the place of presentation.
(b)    Unless otherwise specified in the applicable Indenture Supplement (i) all distributions to Noteholders of all Classes within a Series of Notes will have the same priority and (ii) in the event that on any date of determination the amount available to make payments to the Noteholders of a Series of Notes is not sufficient to pay all sums required to be paid to such Noteholders on such date, then the Noteholders of each Class of such Series will receive its ratable share (based upon the aggregate amount due to each such Class) of the aggregate amount available to be distributed in respect of the Notes of such Series.
Section 6.2.    Optional Prepayment Notes.
To the extent provided in an Indenture Supplement related to a Series of Notes, the Issuer shall have the option to prepay all Outstanding Notes of such Series or of a Class of such Series at such times, for the amounts and as otherwise specified in such Indenture Supplement.
ARTICLE 7.

REPRESENTATIONS AND WARRANTIES

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The Issuer hereby represents and warrants, for the benefit of the Indenture Trustee and the Noteholders, as follows as of each Series Closing Date:
Section 7.1.    Existence and Power.
The Issuer is (a) a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, (b) is duly qualified to do business as a foreign limited liability company and in good standing under the laws of each jurisdiction where the character of its property, the nature of its business or the performance of its obligations make such qualification necessary, except to the extent that the failure to so qualify would not reasonably be expected to result in a Material Adverse Effect, and (c) has all limited liability company powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and for purposes of the transactions contemplated by this Base Indenture and the other Transaction Documents, except to the extent that the failure to have all powers and governmental licenses, authorizations, consents and approvals would not reasonably be expected to result in a Material Adverse Effect.
Section 7.2.    Authorization.
The execution, delivery and performance by the Issuer of this Base Indenture, the related Indenture Supplement and the other Transaction Documents to which it is a party (a) is within the Issuer’s limited liability company powers, (b) have been duly authorized by all necessary limited liability company action, (c) require no action by or in respect of, or filing with, any governmental body, agency or official which has not been obtained and (d) do not contravene, or constitute a default under, any Requirement of Law or any provision of the Issuer Certificate of Formation or the Issuer Limited Liability Company Agreement or result in the creation or imposition of any Lien on any of the Issuer Assets, except for Permitted Liens. This Base Indenture and each of the other Transaction Documents to which the Issuer is a party has been executed and delivered by a duly authorized officer of the Issuer.
Section 7.3.    Binding Effect.
This Base Indenture and each other Transaction Document is a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
Section 7.4.    Litigation.
There is no action, suit or proceeding pending against or, to the knowledge of the Issuer, threatened against or affecting the Issuer before any court or arbitrator or any Governmental Authority that is reasonably likely to have a Material Adverse Effect or which in

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any manner draws into question the validity or enforceability of this Base Indenture, any Indenture Supplement or any other Transaction Document or the ability of the Issuer to perform its obligations hereunder or thereunder.
Section 7.5.    No ERISA Plan.
The Issuer has not established and does not maintain or contribute to any Pension Plan that is covered by Title IV of ERISA and will not do so as long as any Notes are Outstanding.
Section 7.6.    Tax Filings and Expenses.
The Issuer has filed all federal tax returns which are required to be filed (whether informational returns or not), and has paid all taxes due, if any, pursuant to said returns or pursuant to any assessment received by the Issuer, except such taxes, if any, as are being contested in good faith and for which adequate reserves have been set aside on its books. The Issuer has timely filed all state and local tax returns and reports that, to its knowledge, are required to be filed by it, and has paid all taxes, assessments, fees and other governmental charges levied or imposed upon it or its property, income, business, franchises or assets otherwise due and payable, except those that are being contested in good faith by proper proceedings diligently conducted and for which adequate reserves have been set aside on its books or where failure to file or pay such taxes, assessments, fees and other governmental charges would not reasonably be expected to have a Material Adverse Effect. The Issuer has paid all fees and expenses required to be paid by it in connection with the conduct of its business, the maintenance of its existence and its qualification as a foreign limited liability company authorized to do business in each State in which it is required to so qualify, except where failure to pay such fees and expenses would not reasonably be expected to have a Material Adverse Effect.
Section 7.7.    Disclosure.
All certificates, reports, statements, documents and other information furnished to the Indenture Trustee by or on behalf of the Issuer pursuant to any provision of this Base Indenture or any Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this Base Indenture or any Transaction Document, shall, at the time the same are so furnished, be complete and correct to the extent necessary to give the Indenture Trustee true and accurate knowledge of the subject matter thereof in all material respects, and the furnishing of the same to the Indenture Trustee shall constitute a representation and warranty by the Issuer made on the date the same are furnished to the Indenture Trustee to the effect specified herein.
Section 7.8.    Investment Company Act.
The Issuer is not, and is not controlled by, an “investment company” within the meaning of, and is not required to register as an “investment company” under, the Investment Company Act of 1940.

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Section 7.9.    Regulations T, U and X.
The proceeds of the Notes will not be used to purchase or carry any “margin stock” (as defined or used in the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof). The Issuer is not engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock.
Section 7.10.    No Consent.
No consent, action by or in respect of, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required for the valid execution and delivery of this Base Indenture or any Indenture Supplement or for the performance of any of the Issuer’s obligations hereunder or thereunder or under any other Transaction Document other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been obtained by the Issuer prior to such Series Closing Date or as contemplated in Section 7.12.
Section 7.11.    Solvency.
Both before and after giving effect to the transactions contemplated by this Base Indenture and the other Transaction Documents, the Issuer is solvent within the meaning of the Bankruptcy Code and the Issuer is not the subject of any voluntary or involuntary case or proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy or insolvency law and no Insolvency Event has occurred with respect to the Issuer.
Section 7.12.    Security Interests.
The Issuer hereby represents and warrants to the Indenture Trustee and the Noteholders that as of the date hereof and each Series Closing Date:
(a)    This Base Indenture creates a valid and continuing security interest (as defined in the UCC) in all of its right, title and interest in, to and under the Collateral in favor of the Indenture Trustee, which security interest is prior to all other Liens other than Permitted Liens and is enforceable as such as against creditors of and purchasers from the Issuer.
(b)    The Pooled Loans constitute “accounts,” “payment intangibles” or the proceeds thereof under the UCC, each of the Collection Account and the Lockbox Account constitutes a “deposit account” under the UCC, and the remaining Collateral constitutes “general intangibles” under the UCC.
(c)    It owns and has good and marketable title to the Collateral, free and clear of all Liens other than Permitted Liens.

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(d)    Other than the security interest granted to the Indenture Trustee under this Base Indenture, it has not pledged, assigned, sold or granted a security interest in the Collateral. It has not authorized the filing of, nor is it aware of, any financing statements against the Issuer that include a description of collateral covering the Collateral other than any financing statement relating to any security interest granted pursuant hereto. It is not aware of any judgment or tax lien filings against the Issuer.
(e)    The Issuer has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing offices in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Indenture Trustee hereunder. Any financing statements filed or to be filed against the Issuer in favor of the Indenture Trustee in connection herewith describing the Collateral contains or will contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Indenture Trustee.”
Notwithstanding any other provision of this Base Indenture, the perfection representations contained in this Section 7.12 shall be continuing, and remain in full force and effect until such time as all obligations hereunder and under the Notes have been finally and fully paid and performed. No failure or delay on the part of the Indenture Trustee in exercising any right, remedy, power or privilege with respect to this Base Indenture, together with any Indenture Supplement, shall operate as a waiver thereof nor shall any single or partial exercise of any right, remedy, power or privilege with respect to this Base Indenture, together with any Indenture Supplement, preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 7.13.    Binding Effect of Certain Agreements.
Each of the Transaction Documents (other than this Base Indenture) is in full force and effect and there are no outstanding Events of Default or Potential Events of Default.
Section 7.14.    Non Existence of Other Agreements.
(a)    Other than as permitted by Section 8.14 and Section 8.21, (i) the Issuer is not a party to any contract or agreement of any kind or nature and (ii) the Issuer is not subject to any obligations or liabilities of any kind or nature in favor of any third party, including, without limitation, any Contingent Obligations.
(b)    The Issuer has not engaged in any activities since its formation other than (i) activities incidental to its formation, (ii) the authorization and issue of Series of Notes from time to time, (iii) the execution of the Transaction Documents to which it is a party and (iv) the performance of the activities referred to in or contemplated by the Transaction Documents.

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Section 7.15.    Compliance with Contractual Obligations and Laws.
The Issuer is not (i) in violation of the Issuer Certificate of Formation or the Issuer Limited Liability Company Agreement, (ii) in violation of any Requirement of Law to which it or its property or assets may be subject or (iii) in violation of any Contractual Obligation with respect to the Issuer.
Section 7.16.    Other Representations.
All representations and warranties of the Issuer made in each Transaction Document to which it is a party are true and correct (in all material respects to the extent any such representations and warranties do not incorporate a materiality limitation in their terms) and are repeated herein as though fully set forth herein.
Section 7.17.    Ownership of the Issuer.
All of the issued and outstanding membership interests in the Issuer are owned by OnDeck, all of which membership interests have been validly issued, are fully paid and non-assessable and are owned of record by OnDeck free and clear of all Liens other than Permitted Liens; provided, however, that any membership interests in the Issuer (the “SPV Issuer Equity”) may be pledged for the benefit of one or more Pledged Equity Secured Parties pursuant to any Pledged Equity Security Agreement as long as such Pledged Equity Security Agreement contains the Required Standstill Provisions.. The Issuer has no subsidiaries and owns no capital stock of, or other equity interest in, any Person.
ARTICLE 8.
COVENANTS
Section 8.1.    Payment of Notes.
The Issuer shall pay the principal of (and premium, if any) and interest on the Notes pursuant to the provisions of this Base Indenture and any applicable Indenture Supplement. Unless otherwise set forth in the applicable Indenture Supplement, principal and interest shall be considered paid on the date due if the Paying Agent holds on that date money designated for and sufficient to pay all principal and interest then due.
Section 8.2.    Maintenance of Office or Agency.
The Issuer will maintain an office or agency (which may be an office of the Indenture Trustee or the Transfer Agent and Registrar) where Notes may be surrendered for registration of transfer or exchange. The Issuer will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served

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at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.
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 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.
Notwithstanding anything contained in this Section 8.2 to the contrary, the Indenture Trustee shall not serve as an agent or office for the purpose of service of process on behalf of the Issuer.
Section 8.3.    Payment of Obligations.
The Issuer will pay and discharge, at or before maturity, all of its respective material obligations and liabilities, including, without limitation, tax liabilities and other governmental claims, except where the same may be contested in good faith by appropriate proceedings, and will maintain, in accordance with GAAP, reserves as appropriate for the accrual of any of the same.
Section 8.4.    Conduct of Business and Maintenance of Existence.
The Issuer will maintain its existence as a limited liability company under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction where the character of its property, the nature of its business or the performance of its obligations make such qualification necessary.
Section 8.5.    Compliance with Laws.
The Issuer will comply in all respects with all Requirements of Law and all applicable laws, ordinances, rules, regulations, and requirements of Governmental Authorities except where the necessity of compliance therewith is contested in good faith by appropriate proceedings and where such noncompliance would not be reasonably likely to result in a Material Adverse Effect.
Section 8.6.    Inspection of Property, Books and Records.
The Issuer will keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to the Issuer Assets and its business activities in accordance with GAAP; and will permit the Indenture Trustee to visit and inspect any of its properties, to examine and make abstracts from any of its books and records and to discuss its affairs, finances and accounts with its officers, directors and employees, all at such reasonable times upon reasonable notice and as often as may reasonably be requested.

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Section 8.7.    Compliance with Transaction Documents; Issuer Assets.
(a)    Except as otherwise provided in Section 3.1(c) and Section 8.7(d), the Issuer will not take any action and will use its commercially reasonable efforts not to permit any action to be taken by others that would release any Person from any of such Person’s covenants or obligations under any instrument or agreement included in the Issuer Assets or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except, in each case as expressly provided in this Base Indenture, any other Transaction Document or such other instrument or agreement.
(b)    The Issuer shall punctually perform and observe all of its obligations and agreements contained in this Base Indenture, the other Transaction Documents and in the instruments and agreements included in the Issuer Assets, including but not limited to preparing (or causing to be prepared) and filing (or causing to be filed) all UCC financing statements and continuation statements required to be filed by the terms of the Indenture in accordance with and within the time periods provided for herein.
(c)    The Issuer may contract with other Persons to assist it in performing its duties under the Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Servicer pursuant to Section 2(a)(vii) of the Servicing Agreement to assist the Issuer in performing its duties under the Indenture and the Issuer hereby identifies the Servicer to the Indenture Trustee for purposes of this Section 8.7(c).
(d)    Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Base Indenture or the rights of the Indenture Trustee hereunder, the Issuer agrees that it will not (i) amend, modify, waive, supplement, terminate, surrender, or discharge, or agree to any amendment, modification, supplement, termination, waiver, surrender, or discharge of, the terms of any of the Issuer Assets, including any of the Transaction Documents (other than the Indenture, the amendment of which shall be governed by Article 12), or consent to the assignment of any such Transaction Document by any other party thereto; or (ii) waive timely performance or observance by the Seller, the Servicer, the Backup Servicer or the Custodian under any Transaction Document to which such Person is a party other than any Transaction Document that relates solely to a Series of Notes; (each action described in clauses (i) and (ii) above, a “Transaction Document Action”), in each case, without (A) the prior written consent of the Requisite Noteholders, (B) satisfaction of the Rating Agency Condition with respect to each Outstanding Series of Notes in respect of such Transaction Document Action and (C) satisfaction of any other applicable conditions as may be set forth in any Indenture Supplement; provided, that, if any such Transaction Document Action does not materially adversely affect the Noteholders of one or more, but not all, Series of Notes (as substantiated by an Officer’s Certificate of the Issuer to such effect), any such Series of Notes that is not materially adversely affected by such Transaction Document Action shall be deemed not to be Outstanding for purposes of obtaining such consent (and the related calculation of Requisite Noteholders

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shall be modified accordingly); provided, further, if any such Transaction Document Action does not materially adversely affect any Noteholders (as substantiated by an Officer’s Certificate of the Issuer to such effect), the Issuer shall be entitled to effect such action without the prior written consent of the Indenture Trustee or any Noteholder; provided, further, if any such Transaction Document Action adversely affects the rights, protections, indemnities, duties or obligations of (i) the Indenture Trustee, such Transaction Documents Action shall require the prior written consent of the Indenture Trustee, or (ii) the Custodian, such Transaction Document Action shall require the prior written consent of the Custodian. It shall not be necessary for the consent of any Person pursuant to this Section 8.7(d) for such Person to approve the particular form of any proposed amendment, but it shall be sufficient if such Person consents to the substance thereof. For the avoidance of doubt, any amendment, modification, waiver, supplement, termination or surrender of any Transaction Document relating solely to a particular Series of Notes shall be deemed not to materially adversely affect the Noteholders of any other Series of Notes.
Section 8.8.    Notice of Defaults.
Promptly (and in any event within three Business Days) upon an Authorized Officer of the Issuer becoming aware of any Potential Amortization Event with respect to a Series of Notes, Amortization Event with respect to a Series of Notes, Servicer Default, Potential Servicer Default, Event of Default or Potential Event of Default, the Issuer shall give the Indenture Trustee written notice thereof, together with an Officer’s Certificate, setting forth the details thereof and any action with respect thereto taken or contemplated to be taken by the Issuer.
Section 8.9.    Notice of Material Proceedings.
Promptly (and in any event within three Business Days) upon an Authorized Officer of the Issuer becoming aware thereof, the Issuer shall give the Indenture Trustee written notice of the commencement or existence of any proceeding by or before any Governmental Authority against or affecting the Issuer that is reasonably likely to have a Material Adverse Effect.
Section 8.10.    Further Requests.
The Issuer will promptly furnish to the Indenture Trustee such further instruments and such other information as, and in such form as, the Indenture Trustee may reasonably request in connection with the transactions contemplated by this Base Indenture, any Indenture Supplement and the other Transaction Documents.
Section 8.11.    Protection of Issuer Assets.
The Issuer shall take all actions necessary to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the Noteholders, a first Lien on and a first priority, perfected security interest in the Collateral. The Issuer will from time to time prepare (or shall cause to be prepared), execute and deliver all such supplements and amendments hereto and all such

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financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to:
(a)    maintain or preserve the Lien and security interest (and the priority thereof) of this Base Indenture and the Indenture Supplements or carry out more effectively the purposes thereof;
(b)    perfect, publish notice of or protect the validity of the Lien and security interest created by this Base Indenture and the Indenture Supplements;
(c)    enforce the rights of the Indenture Trustee and the Noteholders in any of the Issuer Assets; or
(d)    preserve and defend title to the Issuer Assets and the rights of the Indenture Trustee and the Noteholders in the Issuer Assets against the claims of all persons and parties.
The Indenture Trustee is hereby authorized to execute and file any financing statement, continuation statement or other instrument necessary or appropriate to perfect or maintain the perfection of the Indenture Trustee’s security interest in the Collateral. The Indenture Trustee shall have no obligation to prepare, monitor or determine the necessity for the filing of any financing statement, continuation statement or other instrument with respect to the perfection of the Indenture Trustee’s security interest in the Collateral, but will otherwise cooperate with the Issuer in connection with the filing of any such financing statements, continuation statements and/or other instruments.
Section 8.12.    Annual Opinion of Counsel.
On or before March 31 of each calendar year, commencing with March 31, 2017, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Base Indenture or any Supplement hereto and any other requisite documents and with respect to the authorization and filing of any financing statements and continuation statements as are necessary to maintain the perfection of the Lien and security interest created by this Base Indenture and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such Lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Base Indenture, any Supplement hereto, and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the perfection of the Lien and security interest of this Base Indenture until March 31 in the following calendar year. For the avoidance of doubt, any Opinion of Counsel furnished in connection with this Section 8.12 may be combined with other Opinions of Counsel furnished to the Indenture Trustee pursuant to the other Transaction Documents.
Section 8.13.    Liens.

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The Issuer will not create, incur, assume or permit to exist any Lien upon any of the Issuer Assets, other than (i) Liens in favor of the Indenture Trustee for the benefit of the Noteholders and (ii) other Permitted Liens.
Section 8.14.    Other Indebtedness.
The Issuer will not create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any Indebtedness other than (i) Indebtedness hereunder or under any Indenture Supplement and (ii) Indebtedness contemplated under any other Transaction Document.
Section 8.15.    Mergers.
The Issuer will not merge or consolidate with or into any other Person.
Section 8.16.    Sales of Issuer Assets.
The Issuer will not sell, lease, transfer, liquidate or otherwise dispose of any Issuer Assets, except as contemplated by the Transaction Documents.
Section 8.17.    Acquisition of Assets.
The Issuer will not acquire, by long term or operating lease or otherwise, any assets except in accordance with the terms of the Transaction Documents.
Section 8.18.    Legal Name; Location Under Section 9-301.
The Issuer will change neither its location (within the meaning of Section 9-301 of the UCC) nor its legal name without sixty days’ prior written notice to the Indenture Trustee. In the event that the Issuer desires to so change its location or legal name, the Issuer will make any required filings and prior to actually changing its location or its legal name 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 on behalf of the Noteholders in the Collateral in respect of the new location or new legal name of the Issuer and (ii) copies of all such required filings with the filing information duly noted thereon by the office in which such filings were made.
Section 8.19.    Organizational Documents.
The Issuer will not make any material amendment to the Issuer Certificate of Formation or the Issuer Limited Liability Company Agreement, unless, prior to such amendment, each Rating Agency confirms that after giving effect to such amendment the Rating Agency Condition is satisfied with respect to such amendment.
Section 8.20.    Investments.

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The Issuer will not make, incur, or suffer to exist any loan, advance, extension of credit or other investment in any Person other than in accordance with the Transaction Documents.
Section 8.21.    Non-Petition; No Other Agreements.
The Issuer shall cause each party to a Transaction Document or any other document or agreement incidental thereto, in each case, to which the Issuer is a party, to agree to a customary “non-petition” covenant. The Issuer will not enter into or be a party to any agreement or instrument other than any Transaction Document or documents and agreements incidental thereto.
Section 8.22.    Other Business.
The Issuer will not engage in any business or enterprise or enter into any transaction other than acquiring Loans and the Related Security with respect thereto pursuant to the Loan Purchase Agreement and funding the purchase price of Loans and the Related Security with respect thereto through the issuance and sale of Notes, in each case pursuant to the Transaction Documents, and incurring and paying ordinary course operating expenses and other activities related to or incidental to any of the foregoing.
Section 8.23.    Maintenance of Separate Existence.
The Issuer shall at all times comply with the separateness covenants set forth in the Issuer Limited Liability Company Agreement.
Section 8.24.    Use of Proceeds of Notes.
The Issuer shall use the net proceeds of each Series of Notes in accordance with the provisions of the related Indenture Supplement.
Section 8.25.    No ERISA Plan.
The Issuer will not establish or maintain or contribute to any Pension Plan that is covered by Title IV of ERISA.
Section 8.26.    Dividends.
The Issuer will not declare or pay any dividends or distributions on any of its membership interests, or make any purchase, redemption or other acquisition of, any of its membership interests; provided, however, that so long as no Event of Default or Amortization Event with respect to any Series of Notes has occurred and is continuing or would result therefrom, the Issuer may declare and pay distributions as permitted under applicable law.
Section 8.27.    Tax Matters.

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The Issuer shall not take (or, to the extent within its control, permit any other Person to take) any action that could reasonably be expected to cause the Issuer to be classified as any entity other than a partnership or disregarded entity within the meaning of U.S. Treasury Regulation §301.7701-3.
Section 8.28.    Purchase and Sale of Assets.
The Issuer will not acquire or dispose of assets for the primary purpose of recognizing gains or decreasing losses resulting from market value changes. The Issuer will not purchase or otherwise acquire any asset that is not an “eligible asset” within the meaning of Rule 3a-7 promulgated under the Investment Company Act; provided, however, that the Issuer may purchase or otherwise acquire an asset that is not an “eligible asset” to the extent that the purchase or acquisition of such asset is considered related or incidental to the business of purchasing or otherwise acquiring “eligible assets” under Rule 3a-7.
ARTICLE 9.
REMEDIES
Section 9.1.    Events of Default.
“Event of Default”, wherever used herein, with respect to any Series of Notes, 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):
(a)    the Securities and Exchange Commission or other regulatory body having jurisdiction reaches a final determination that the Issuer is an “investment company” within the meaning of the Investment Company Act;
(b)    the Issuer at any time receives a final determination that it will be treated as an association taxable as a corporation for federal income tax purposes;
(c)    an Insolvency Event shall have occurred with respect to the Issuer;
(d)    the default in the payment of interest on any Note when the same becomes due and payable, and such default shall continue for a period of five Business Days;
(e)    the default in the payment of principal of any Note when the same becomes due and payable;
(f)    default in the observance or performance of any covenant or agreement of the Issuer made in the Base Indenture or the Indenture Supplement for such Series of Notes (other than a covenant or agreement, a default in the observance or performance of which is

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elsewhere in this Section specifically dealt with) which default materially and adversely affects the interests of the Noteholders of such Series of Notes, and which default shall continue or not be cured for a period of thirty days (or for such longer period, not in excess of sixty days, as may be reasonably necessary to remedy such default; provided that such default is capable of remedy within sixty days or less and the Issuer delivers an Officer’s Certificate to the Indenture Trustee to the effect that the Issuer has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy such default) after there shall have been given to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by Holders of a Majority in Interest of such Series of Notes, a written notice specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(g)    the Indenture Trustee fails to have a valid and perfected first priority security interest in any material portion of the Collateral and such failure continues for five Business Days, or the Issuer, the Seller or an Affiliate of either asserts that the Indenture Trustee does not have a valid and perfected first priority security interest in any material portion of the Collateral.
Section 9.2.    Acceleration of Maturity; Rescission and Annulment.
If an Event of Default referred to in clause (c) or (g) of Section 9.1 has occurred, the unpaid principal amount of all Series of Notes, together with interest accrued but unpaid thereon, and all other amounts due to the Noteholders under this Base Indenture and each Indenture Supplement, shall immediately and without further act become due and payable.
If any Event of Default referred to in clause (a), (b), (d), or (e) of Section 9.1 has occurred and is continuing, then the Indenture Trustee or the Requisite Noteholders may, by written notice delivered to an Authorized Officer of the Issuer (and to a Responsible Officer of the Indenture Trustee if given by the Noteholders) (such notice, a “Notice of Acceleration”), declare all of the Notes to be immediately due and payable, and upon any such declaration the unpaid principal amount of the Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable. If an Event of Default referred to in clause (f) of Section 9.1 shall occur and be continuing with respect to any Series of Notes, then and in every such case the Indenture Trustee or Holders of a Majority in Interest of such Series of Notes may give a Notice of Acceleration to the Issuer (and to the Indenture Trustee, if given by the Noteholders of such Series of Notes) declaring all the Notes of such Series to be immediately due and payable and, upon any such declaration, the unpaid principal amount of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable.
At any time after a Notice of Acceleration has been delivered with respect to the Notes (or a particular Series of Notes) and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter set forth in this Article 9, the Requisite Noteholders (or, in the case of the acceleration of a particular Series of Notes, the

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Holders of a Majority in Interest of the Notes of such Series), by written notice to the Issuer and the Indenture Trustee, may rescind and annul the declaration made in such Notice of Acceleration and its consequences; provided, that no such rescission shall affect any subsequent default or impair any right consequent thereto.
Section 9.3.    Collection of Indebtedness and Suits for Enforcement by the 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 Business Days or (ii) default is made in the payment of the principal of any Notes when the same becomes due and payable, by acceleration or at stated maturity, the Issuer will, upon demand of the Indenture Trustee, pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal and interest, 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 Note Rate borne by the Notes, 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)    In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Issuer or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged or decreed to be payable.
(c)    If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 9.4, in its discretion, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate proceedings as the Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by the Indenture or by law.
(d)    In case there shall be pending, relative to the Issuer, any other obligor upon the Notes, or any Person having or claiming an ownership interest in the Issuer Assets, proceedings under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or Indenture Trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for, or taken possession of, the Issuer or its property or such other obligor, or such Person or the property of such other obligor or such Person, or in the case of any other comparable judicial proceedings relative to the Issuer, other obligor upon the Notes or such Person or to the creditors or property of the Issuer, such other obligor or such Person, the Indenture Trustee, irrespective of whether

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the principal 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 and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents 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 Noteholders allowed in such proceedings;
(ii)    unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Notes 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 Noteholders 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 or the Holders of the Notes allowed in any judicial proceedings relative to the Issuer, such other obligor upon the Notes, any Person claiming an ownership interest in the Issuer Assets, their respective creditors and their property;
and any trustee, receiver, liquidator, custodian or other similar official in any such proceeding is hereby authorized by each of such Noteholders 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 Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation 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.
(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 Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.

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(f)    All rights of action and of asserting claims under this Base Indenture, under any Indenture Supplement 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 trial or other 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 ratable benefit of the Holders of the Notes.
(g)    In any proceedings brought by the Indenture Trustee (and also any proceedings involving the interpretation of any provision of the Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Noteholder a party to any such proceedings.
Section 9.4.    Remedies; Priorities.
(a)    If an Event of Default shall have occurred and be continuing with respect to any Series of Notes Outstanding and such Series has been accelerated under Section 9.2, the Indenture Trustee may institute proceedings to enforce the obligations of the Issuer hereunder in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes of such Series or under the Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer and any other obligor upon such Notes moneys adjudged due.
(b)    If an Event of Default shall have occurred and be continuing with respect to all Series of Notes Outstanding and all Series of Notes Outstanding have been accelerated under Section 9.2, the Indenture Trustee (subject to Section 9.5) may do one or more of the following:
(i)    institute proceedings from time to time for the complete or partial foreclosure of the Indenture with respect to the Issuer Assets;
(ii)    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 Holders of the Notes; and
(iii)    sell Collateral 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 that the Indenture Trustee may not sell or otherwise liquidate the Collateral following an Event of Default, other than an Event of Default referred to in clause (d) or (e) of Section 9.1, unless (A) the Holders of Notes representing 100% of the Aggregate Invested Amount consent thereto, (B) the proceeds of such sale or liquidation distributable to the Noteholders are sufficient to discharge in full all amounts then due and unpaid on the Notes for principal and interest, or (C)(1) the Indenture Trustee determines that the Collateral will

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not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable and (2) the Indenture Trustee obtains the consent of a Majority in Interest of the Holders of each Series of Notes. In determining such sufficiency or insufficiency with respect to clause (B) or (C) above, the Indenture Trustee may, but need not, obtain and may conclusively 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 Collateral for such purposes. due.
(c)    If an Event of Default shall have occurred and be continuing with respect to any Series of Notes Outstanding, the Indenture Trustee may exercise all rights, remedies, powers, privileges and claims of the Issuer against the Seller, the Servicer, the Backup Servicer, the Custodian or any other party to any of the Transaction Documents under or in connection with any of the Transaction Documents in respect of such Event of Default, including the right or power to take any action to compel or secure performance or observance by the Seller, the Servicer, the Backup Servicer, the Custodian or any other party of each of their respective 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.
(d)    If the Indenture Trustee collects any money or property pursuant to this Article 9, such money or property shall be held by the Indenture Trustee as additional collateral hereunder and the Indenture Trustee shall pay out such money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 10.6; and
SECOND: to the Collection Account for distribution in accordance with the provisions of Article 5.
Section 9.5.    Optional Preservation of the Issuer Assets.
If the Notes of each Series of Notes Outstanding have been declared to be due and payable under Section 9.2 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, but need not, elect to maintain possession of the Collateral. In determining whether to maintain possession of the Collateral, 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 Collateral for such purpose. Nothing contained in this Section 9.5 shall be construed to require the Indenture Trustee to preserve the Collateral securing the Issuer Obligations, including without limitation, if prohibited by applicable law or if the Indenture Trustee is authorized, directed or permitted to liquidate the Collateral pursuant to Section 9.4(b).

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Section 9.6.    Limitation on Suits.
No Holder of any Note shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless:
(a)    such Holder has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(b)    Holders of each Series of Notes Outstanding holding Notes evidencing at least 25% of the Notes of such Series have made written request to the Indenture Trustee to institute such proceeding in respect of such Event of Default in its own name as the Indenture Trustee hereunder;
(c)    such Holder or Holders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(d)    the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such proceedings; and
(e)    no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by the Requisite Noteholders;
it being understood and intended that no one or more Holders of the Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other Holders of the Notes or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under the Indenture, except in the manner herein provided.
Section 9.7.    Unconditional Rights of Noteholders to Receive Principal and Interest.
Notwithstanding any other provisions in the Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Note on or after the respective due dates thereof expressed in such Note or in the Indenture and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 9.8.    Restoration of Rights and Remedies.
If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under the 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 and the Noteholders shall, subject

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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 9.9.    Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders 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 9.10.    Delay or Omission Not a Waiver.
No delay or omission of the Indenture Trustee or any Holder of any Note to exercise any right or remedy accruing upon any Potential Event of Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Potential Event of Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article 9 or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 9.11.    Control by Noteholders.
The Requisite 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
(a)    such direction shall not be in conflict with any rule of law or with the Indenture;
(b)    if an Event of Default is with respect to less than all Series of Notes Outstanding, then the Indenture Trustee’s rights and remedies shall be limited to the rights and remedies pertaining only to those Series of Notes with respect to which such Event of Default has occurred and the Indenture Trustee shall exercise such rights and remedies at the direction of the Holders of more than 50% of the aggregate Invested Amounts of all Series of Notes with respect to which such Event of Default shall have occurred (or, if an Event of Default with respect to a single Series of Notes Outstanding shall have occurred, a Majority in Interest of such Series of Notes Outstanding);
(c)    subject to the express terms of Section 9.4, any direction to the Indenture Trustee to sell or liquidate the Collateral shall be by the Holders of Notes representing not less than 100% of the Aggregate Invested Amount;

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(d)    if the conditions set forth in Section 9.5 have been satisfied and the Indenture Trustee elects to retain the Collateral pursuant to such Section, then any direction to the Indenture Trustee by Holders of Notes representing less than 100% of the Aggregate Invested Amount to sell or liquidate the Issuer Assets shall be of no force and effect;
(e)    the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction; and
(f)    such direction shall be in writing;
provided, further, that, subject to Section 10.1, 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 9.12.    Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity of the Notes of all Series of Notes or any Series of Notes as provided in Section 9.2, the Requisite Noteholders (or, if an Event of Default with respect to less than all Series of Notes Outstanding has occurred, the Holders of more than 50% of the aggregate Invested Amounts of all Series of Notes with respect to which an Event of Default shall have occurred) may, on behalf of all such Holders, waive any past Potential Event of Default or Event of Default and its consequences except a Potential Event of Default or Event of Default (a) in payment of principal of or interest on any of the Notes, or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Note, which, in each case, may only be waived by 100% of the Holders of the Notes. In the case of any such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes Outstanding shall be restored to their former positions and rights hereunder, respectively, such Potential Event of Default or Event of Default, as applicable, 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 the Indenture; but no such waiver shall extend to any subsequent or other Potential Event of Default or Event of Default or impair any right consequent thereto.
Section 9.13.    Undertaking for Costs.
All parties to this Base Indenture and each Indenture Supplement agree, and each Holder of any Note by such Holder’s acceptance thereof 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 Base Indenture or any Indenture Supplement, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as the Indenture Trustee, the filing by any party litigant in such Proceeding of an undertaking to pay the costs of such Proceeding, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such Proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any

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Noteholder or group of Noteholders, in each case holding in the aggregate more than 10% of the Invested Amount of any Series of Notes, 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 Base Indenture or any Indenture Supplement (after giving effect to applicable grace periods).
Section 9.14.    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 Base Indenture or any Indenture Supplement; 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.
Section 9.15.    Action on Notes.
The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Base Indenture or any Indenture Supplement shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Base Indenture or any Indenture Supplement. Neither the Lien of this Base Indenture or any Indenture Supplement nor any rights or remedies of the Indenture Trustee or the Noteholders 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 Issuer Assets or upon any of the other assets of the Issuer.
ARTICLE 10.
THE INDENTURE TRUSTEE
Section 10.1.    Duties of the Indenture Trustee.
(a)    If an Amortization Event with respect to any Series of Notes Outstanding or an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Indenture Trustee shall only be required to exercise the rights and powers vested in it by the Indenture and to use the same degree of care and skill in their exercise as a prudent man would exercise in the conduct of his own affairs with respect to a Series of Notes Outstanding with respect to which the Amortization Event has occurred.
(b)    Except during the continuance of (x) an Event of Default or (y) an Amortization Event with respect to any Series of Notes Outstanding, solely with respect to such Series of Notes Outstanding,

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(i)    the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in the Indenture, and no implied covenants or obligations shall be read into the Indenture against the Indenture Trustee; and
(ii)    in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, 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 the Indenture; but in the case of any such certificates or opinions which by any provision of the Indenture are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)    Subject to Section 10.1(a), no provision of the 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 bad faith or willful misconduct; provided, however, that:
(i)    the Indenture Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer of the Indenture Trustee, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts nor shall the Indenture Trustee be liable with respect to any action it takes or omits to take in good faith in accordance with the Indenture or in accordance with a direction received by it pursuant to Section 9.11; and
(ii)    the Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it, and none of the provisions contained in the Indenture shall in any event require the Indenture Trustee to perform, or be responsible for the manner of performance of, any of the obligations of any Person under any of the Transaction Documents.
Section 10.2.    Rights of the Indenture Trustee.
Except as otherwise provided by Section 10.1:
(a)    The Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting based upon any document believed by it to be genuine and to have been signed by or presented by the proper person.
(b)    The Indenture Trustee may consult with counsel of its selection and 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.

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(c)    The Indenture Trustee may act through agents, custodians and nominees and shall not be liable for any misconduct or negligence on the part of, or for the supervision of, any such agent, custodian or nominee so long as such agent, custodian or nominee is selected and 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 the Indenture; provided, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.
(e)    The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, or other paper or document, unless requested in writing to do so by Holders of the Notes evidencing not less than 25% of the Invested Amount of any Series of Notes; 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 shall be, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of the Indenture, the Indenture Trustee may require indemnity reasonably satisfactory to it against such cost, expense, or liability or payment of such expenses as a condition precedent to so proceeding. The reasonable expense of every such examination shall be paid by the Issuer or, if paid by the Indenture Trustee, shall be reimbursed by the Issuer upon demand.
(f)    The Indenture Trustee shall have no obligation to invest or reinvest any cash held in the Collection Account, the Lockbox Account, any Series Account or any other moneys held by the Indenture Trustee pursuant to this Indenture in the absence of timely and specific written investment direction from the Issuer which may be in the form of standing instructions or otherwise. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Issuer to provide timely written investment direction.
(g)    The right of the Indenture Trustee to perform any discretionary act enumerated in the Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(h)    The Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder.
(i)    The Indenture Trustee shall not be charged with knowledge of any Event of Default, Potential Event of Default, Amortization Event, Potential Amortization Event, Potential Servicer Default or Servicer Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge thereof or receives written notice of such event at the Corporate Trust Office, and such notice references the Notes and the Indenture.

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(j)    The Indenture Trustee shall not be charged with knowledge of any failure by any Person to comply with its obligations under the Transaction Documents, unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such failure or receives written notice of any event which is in fact a failure by such Person to comply at the Corporate Trust Office, and such notice references the Notes and the Indenture.
(k)    Anything in the Indenture to the contrary notwithstanding, in no event shall the Indenture Trustee be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l)    The Indenture Trustee shall have no duty (A) to record, file, or deposit this Base Indenture, the Transaction Documents or any agreement referred to herein or therein or any financing statement or continuation statement evidencing a security interest, or to monitor or maintain any such recording or filing or depositing or to rerecord, refile, or redeposit any thereof, (B) to insure the Issuer Assets or (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to assessed or levied against, any part of the Collateral.
(m)    Whenever in the administration of the Indenture, the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate.
(n)    The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture or to conduct or defend any litigation hereunder or in relation hereto at the request or direction of any of the Holders pursuant to the Indenture, unless such Holders shall have offered to the Indenture Trustee security or indemnity satisfactory to the Indenture Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(o)    Except as otherwise set forth in Section 10.1(b)(ii), the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or 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, 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.
(p)    The rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and

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shall be enforceable by, the Indenture Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(q)    The Indenture Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to the Indenture.
(r)    In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes outside the Indenture Trustee’s control whether or not of the same class or kind as specified above; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(s)    Every provisions of the Indenture or the Transaction Documents relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provision of this Article 10.
(t)    The delivery of reports, information and documents to the Indenture Trustee shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder.
(u)    The Indenture Trustee shall be fully justified in failing or refusing to take any action under the Indenture, any Transaction Document or any other related document if such action (i) 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, the Indenture, any Transaction Document or any other related document or (ii) prior to the occurrence of an Event of Default, is not provided for in the Indenture, any Transaction Document or any other related document.
(v)    The rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by the Indenture Trustee in each Transaction Document and other document related hereto to which it is a party.
Section 10.3.    Indenture Trustee’s Disclaimer.
The Indenture Trustee assumes no responsibility for the correctness of the recitals contained herein and in the Notes (other than the certificate of authentication on the Notes). Except as set forth in Section 10.11, the Indenture Trustee makes no representations as to the

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validity or sufficiency of the Indenture or of the Notes (other than the certificate of authentication on the Notes) or of any of the Issuer Assets. The Indenture Trustee shall not be accountable for the use or application by the Issuer of any of the Notes or of the proceeds of such Notes, or for the use or application of any funds paid to the Issuer in respect of the Issuer Assets.
Section 10.4.    Indenture Trustee May Own Notes.
The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes with the same rights as it would have if it were not the Indenture Trustee.
Section 10.5.    Notice of Defaults.
If a Potential Event of Default, an Event of Default, a Potential Amortization Event or an Amortization Event, in each case with respect to any Series of Notes, occurs and is continuing and if it is either actually known or written notice of the existence thereof has been delivered to a Responsible Officer of the Indenture Trustee at the Corporate Trust Office referencing the Indenture and the applicable Series of Notes, if any, the Indenture Trustee shall mail to each Noteholder notice thereof within ten Business Days after such knowledge or notice occurs. Except in the case of a Potential Event of Default or an Event of Default in accordance with the provisions of Section 313(c) of the TIA in payment of principal of or interest on any Note (including payments pursuant to the mandatory redemption provisions of such Note), the Indenture Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interest of the Noteholders.
Section 10.6.    Compensation; Indemnity.
The Issuer shall pay to the Indenture Trustee from time to time reasonable compensation for its services hereunder in accordance with each Indenture Supplement. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Indenture Trustee for all reasonable out of pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Issuer shall indemnify, defend and hold the Indenture Trustee, its officers, directors, employees, counsel and agents harmless from and against any and all loss, liability, tax, judgment, penalty, cause of action, damage, cost or expense (including the reasonable fees and expenses of counsel) incurred by it in connection with the administration of this trust and the performance of its duties hereunder and under the other Transaction Documents, in accordance with and subject to the terms of each Indenture Supplement. The Indenture Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity; provided, however, a failure by the Indenture Trustee to promptly notify the Issuer of a claim for which it may seek indemnity shall not relieve the Issuer from its obligation to indemnify the Indenture Trustee. Notwithstanding the foregoing, the Issuer shall not be liable to reimburse and indemnify the Indenture Trustee from and against any of the foregoing expenses or indemnities arising or

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resulting from its own negligence or willful misconduct as conclusively determined by the judgment of a court of competent jurisdiction no longer subject to appeal or review.
The Issuer’s payment obligations to the Indenture Trustee pursuant to this Section 10.6 shall survive the resignation or termination of the Indenture Trustee and the discharge of the Indenture. When the Indenture Trustee incurs expenses after the occurrence of an Event of Default specified in Section 9.1(c), the expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or similar law.
Section 10.7.    Eligibility Requirements for Indenture Trustee.
The Indenture Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States or any state thereof authorized under such laws to exercise corporate trust powers, having a long-term unsecured debt rating of at least “Baa3” by Moody’s and “BBB” by Standard & Poor’s 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, and shall satisfy the requirements for a trustee set forth in paragraph (a)(4)(i) of Rule 3a-7 under the Investment Company Act. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 10.7, the risk-based capital or the combined capital and surplus of such corporation, as the case may be, shall be deemed to be its risk-based capital or combined capital and surplus as set forth in the most recent report of condition so published.
If the Indenture is qualified under the TIA, the Indenture Trustee shall at all times satisfy the requirements of TIA §310(a) and the Indenture Trustee shall comply with TIA §310(b), including the optional provision permitted by the second sentence of TIA §310(b)(9); provided that there shall be excluded from the operation of TIA §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 the TIA §310(b)(1) are met.
If at any time the Indenture Trustee ceases to be eligible in accordance with the provisions of this Section 10.7, the Indenture Trustee shall resign immediately in the manner and with the effect specified in Section 10.8.
Section 10.8.    Resignation or Removal of Indenture Trustee.
(a)    The Indenture Trustee may give notice of its intent to resign at any time by so notifying the Issuer. The Requisite Noteholders may remove the Indenture Trustee by so notifying the Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer shall remove the Indenture Trustee if:

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(i)    the Indenture Trustee fails to comply with Section 10.7;
(ii)    the Indenture Trustee is adjudged bankrupt or insolvent;
(iii)    a receiver or other public officer takes charge of the Indenture Trustee or its property; or
(iv)    the Indenture Trustee otherwise becomes incapable of acting.
(b)    If the Indenture Trustee gives notice of its intent to resign or is removed or if a vacancy exists in the office of the Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a successor Indenture Trustee.
(c)    A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee and to the Issuer and thereupon the resignation or removal of the Indenture Trustee shall become effective, and the successor Indenture Trustee, without any further act, deed or conveyance shall have all the rights, powers and duties of the Indenture Trustee under the Indenture. The successor Indenture Trustee shall mail a notice of its succession to the Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as the Indenture Trustee to the successor Indenture Trustee at the expense of the Issuer.
(d)    If a successor Indenture Trustee does not take office within 60 days after the retiring Indenture Trustee gives notice of its intent to resign or is removed, the retiring Indenture Trustee, the Issuer or the Holders of a Majority in Interest of each Series of Notes Outstanding may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
(e)    If the Indenture Trustee fails to comply with Section 10.7, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f)    Any resignation or removal of the Indenture Trustee and appointment of a successor Indenture Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Indenture Trustee pursuant to Section 10.8(c) and payment of all fees and expenses owed to the outgoing Indenture Trustee.
(g)    Notwithstanding the resignation or removal of the Indenture Trustee pursuant to this Section, the Issuer’s obligations under Section 10.6 shall continue for the benefit of the retiring Indenture Trustee. The Indenture Trustee shall not be liable for the acts or omissions of any successor Indenture Trustee.
Section 10.9.    Successor Indenture Trustee by Merger.

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If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee. The Indenture Trustee shall provide the Issuer written notice of any such transaction.
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 the 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 Indenture Trustee may authenticate such Notes either in the name of any predecessor Indenture Trustee hereunder or in the name of the successor Indenture Trustee; and in all such cases such certificate of authentication shall have the same full force as is provided anywhere in the Notes or in the Indenture with respect to the certificate of authentication of the Indenture Trustee.
Section 10.10.    Appointment of Co-Trustee or Separate Trustee.
(a)    Notwithstanding any other provisions of this Base Indenture or any Indenture Supplement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Collateral 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 Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Collateral, or any part thereof, and, subject to the other provisions of this Section 10.10, 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 Indenture Trustee under Section 10.7 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 10.8. No co-trustee shall be appointed without the consent of the Issuer unless such appointment is required as a matter of state law or to enable the Indenture Trustee to perform its functions 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 of each Series of 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

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joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, 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 Issuer Assets or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustees, 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 trustee hereunder; and
(iv)    The Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustees.
(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 effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Base Indenture and the conditions of this Article 10. Each separate trustee and co-trustees, 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 Base Indenture and any Indenture Supplement, specifically including every provision of this Base Indenture or any Indenture Supplement 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 Issuer.
(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 Base Indenture or any Indenture Supplement 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.
(e)    In connection with the appointment of a co-trustees, the Indenture Trustee may, at any time, at the Indenture Trustee’s sole cost and expense, without notice to the Noteholders, delegate its duties under this Base Indenture and any Indenture Supplement to any Person who agrees to conduct such duties in accordance with the terms hereof and shall not be liable for any misconduct or negligence on the part of, or for the supervision of, any such co-trustee so long as such co-trustee is appointed by the Indenture Trustee with due care.
Section 10.11.    Representations and Warranties of Indenture Trustee.
The Indenture Trustee represents and warrants to the Issuer and the Noteholders that:

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(i)    The Indenture Trustee is a New York banking corporation organized, existing and in good standing under the laws of the State of New York;
(ii)    The Indenture Trustee has full power, authority and right to execute, deliver and perform this Base Indenture and any Indenture Supplement issued concurrently with this Base Indenture and to authenticate the Notes, and has taken all necessary action to authorize the execution, delivery and performance by it of this Base Indenture and any Indenture Supplement issued concurrently with this Base Indenture and to authenticate the Notes;
(iii)    This Base Indenture has been duly executed and delivered by the Indenture Trustee; and
(iv)    The Indenture Trustee meets the requirements of eligibility as an Indenture Trustee hereunder set forth in Section 10.7.
Section 10.12.    Preferential Collection of Claims Against the Issuer.
If the Indenture is qualified under the TIA, the Indenture Trustee shall comply with TIA §311(a), excluding any creditor relationship listed in TIA §311(b) and an Indenture Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent indicated therein.
ARTICLE 11.

DISCHARGE OF INDENTURE
Section 11.1.    Termination of the Issuer’s Obligations.
(a)    The Indenture shall cease to be of further effect (except that (i) the Issuer’s obligations under Sections 2.4, 2.14 and 10.6, (ii) the Indenture Trustee’s and Paying Agent’s obligations under Section 11.3 and the Indenture Trustee’s and the Noteholders’ obligations under Section 13.16 shall survive) when all Outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Notes which have been replaced or paid) to the Indenture Trustee for cancellation and the Issuer has paid all sums payable hereunder.
(b)    In addition, except as may be provided to the contrary in any Indenture Supplement, the Issuer may terminate all of its obligations under the Indenture if:
(i)    The Issuer irrevocably deposits in trust with the Indenture Trustee money or U.S. Government Obligations in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Indenture Trustee, to pay, when due, principal and interest on the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder; provided, however, that the Indenture Trustee shall have been irrevocably instructed to apply

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such money or the proceeds of such U.S. Government Obligations to the payment of said principal and interest with respect to the Notes;
(ii)    The Issuer delivers to the Indenture Trustee an Officer’s Certificate stating that all conditions precedent to satisfaction and discharge of the Indenture have been complied with, and an Opinion of Counsel to the same effect; and
(iii)    the Rating Agency Condition is satisfied with respect to each Series of Notes Outstanding.
Then, the Indenture shall cease to be of further effect (except as provided in this Section 11.1), and the Indenture Trustee, on demand of the Issuer, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture.
(c)    After such irrevocable deposit made pursuant to Section 11.1(b) and satisfaction of the other conditions set forth herein, the Indenture Trustee upon request shall acknowledge in writing the discharge of the Issuer’s obligations under the Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal or interest on the Notes, the U.S. Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the issuer’s option.
Section 11.2.    Application of Trust Money.
The Indenture Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 11.1. The Indenture Trustee shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent in accordance with the Indenture to the payment of principal and interest on the Notes.
The provisions of this Section 11.2 shall survive the expiration or earlier termination of the Indenture.
Section 11.3.    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 Section 2.4, return any Notes held by them at any time.
The provisions of this Section 11.3 shall survive the expiration or earlier termination of the Indenture.
ARTICLE 12.

AMENDMENTS

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Section 12.1.    Without Consent of the Noteholders.
Without the consent of any Noteholder, but subject to satisfaction of the Rating Agency Condition, the Issuer and the Indenture Trustee, at any time and from time to time, may amend, modify, or waive the provisions of this Base Indenture or, unless otherwise specified therein, any Indenture Supplement:
(a)    to create a new Series of Notes;
(b)    to add to the covenants of the Issuer for the benefit of any Noteholders (and if such covenants are to be for the benefit of less than all Series of Notes, stating that such covenants are expressly being included solely for the benefit of such Series) or to surrender any right or power conferred upon the Issuer (provided, however, that the Issuer will not pursuant to this Section 12.1(b) surrender any right or power it has under the Transaction Documents);
(c)    to mortgage, pledge, convey, assign and transfer to the Indenture Trustee any additional property or assets, or increase the amount of such property or assets that are required as security for the Notes and to specify the terms and conditions upon which such additional 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 the Indenture or as may, consistent with the provisions of the Indenture, be deemed appropriate by the Issuer, 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 on behalf of the Noteholders;
(d)    to cure any mistake, ambiguity, defect, or inconsistency or to correct or supplement any provision contained herein or in any Indenture Supplement or in any Notes issued hereunder;
(e)    to evidence and provide for the acceptance of appointment hereunder by a successor Indenture Trustee with respect to the Notes of one or more Series of Notes and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Indenture Trustee;
(f)    to correct or supplement any provision herein or in any Indenture Supplement which may be inconsistent with any other provision herein or therein or to make any other provisions with respect to matters or questions arising under this Base Indenture or in any Indenture Supplement; or
(g)    if the Indenture is required to be qualified under the TIA, to modify, eliminate or add to the provisions of the Indenture to such extent as shall be necessary to effect the qualification of the Indenture under the TIA or under any similar federal statute hereafter enacted and to add to the Indenture such other provisions as may be expressly required by the TIA;

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provided, however, that, as evidenced by an Officer’s Certificate of the Issuer, such action shall not adversely affect in any material respect the interests of any Noteholder.
Section 12.2.    With Consent of the Noteholders.
(a)    Except as provided in Section 12.1, the provisions of this Base Indenture and any Indenture Supplement (except as otherwise set forth in such Indenture Supplement) may from time to time be amended, modified or waived, if (i) such amendment, modification or waiver is in writing and is consented to in writing by the Issuer, the Indenture Trustee and, unless otherwise specified in an Indenture Supplement for a Series of Notes, the Requisite Noteholders and (ii) the Rating Agency Condition is satisfied with respect to such amendment, modification, or waiver; provided, that, if any such amendment, modification or waiver does not materially adversely affect the Noteholders of one or more, but not all, Series of Notes (as substantiated by an Officer’s Certificate of the Issuer to such effect), any such Series of Notes that is not materially adversely affected by such amendment, modification or waiver shall be deemed not to be Outstanding for purposes of obtaining such consent (and the related calculation of Requisite Noteholders shall be modified accordingly).
(b)    Notwithstanding the foregoing (but subject, in each case, to satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding):
(i)    any modification of this Section 12.2, any requirement hereunder that any particular action be taken by Noteholders holding the relevant percentage in principal amount of the Notes or any change in the definition of the terms “Pool Outstanding Principal Balance”, “Outstanding Principal Balance” and “Outstanding” shall require the consent of the Required Noteholders;
(ii)    any amendment, waiver or other modification to this Base Indenture or any Indenture Supplement that would (A) extend the due date for, or reduce the interest rate or principal amount of any Note, or the amount of any scheduled repayment or prepayment of principal of or interest on any Note (or reduce the principal amount of or rate of interest on any Note) shall require the consent of each Holder of the Note affected thereby; (B) affect adversely the interests, rights or obligations of any Noteholder individually in comparison to any other Noteholder shall require the consent of such Noteholder; or (C) amend or otherwise modify any Amortization Event shall require the consent of each Noteholder to which such Amortization Event applies; and
(iii)    any amendment, waiver or other modification that would (A) approve the assignment or transfer by the Issuer of any of its rights or obligations hereunder or under any other Transaction Documents to which it is a party, except pursuant to the express terms hereof or thereof; or (B) release any obligor under any Transaction Documents to which it is a party, except pursuant to the express terms hereof or of such Transaction Document, shall require in each case the consent of the Required Noteholders; provided, however, if any such amendment, waiver, or other modification relating to a Transaction Document relates solely to a single Series of Notes (as substantiated by an Officer’s Certificate of the Issuer to such effect), then all other

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Series of Notes shall be deemed not to be Outstanding for purposes of obtaining the foregoing consent (and the related calculation of Required Noteholders shall be modified accordingly); provided, further that with respect to any such amendment, waiver or other modification relating to a Transaction Document or portion thereof that does not adversely affect in any material respect a Series of Notes (as substantiated by an Officer’s Certificate of the Issuer to such effect), then such Series of Notes shall be deemed not to be Outstanding for purposes of obtaining the foregoing consent (and the related calculation of Required Noteholders shall be modified accordingly).
(c)    No failure or delay on the part of any Noteholder or the Indenture Trustee in exercising any power or right under the Indenture or any other Transaction Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right.
(d)    It shall not be necessary for the consent of any Person pursuant to this Section for such Person to approve the particular form of any proposed amendment, but it shall be sufficient if such Person consents to the substance thereof.
Section 12.3.    Supplements.
Each amendment or other modification to the Indenture or the Notes shall be set forth in a Supplement. In addition to the manner provided in Sections 12.1 and 12.2(b), each Indenture Supplement may be amended as provided in such Indenture Supplement.
Section 12.4.    Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Noteholder is a continuing consent by the Noteholder and every subsequent Noteholder of a Note or portion of a Note that evidences the same debt as the consenting Noteholder’s Note, even if notation of the consent is not made on any Note. However, any such Noteholder or subsequent Noteholder may revoke the consent as to his Note or portion of a Note if the Indenture Trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Noteholder. The Issuer may fix a record date for determining which Noteholders must consent to such amendment or waiver.
Section 12.5.    Notation on or Exchange of Notes.
The Indenture Trustee may place an appropriate notation about an amendment or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Indenture Trustee shall authenticate new Notes that reflect the amendment or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment or waiver.
Section 12.6.    The Indenture Trustee to Sign Amendments, etc.

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The Indenture Trustee shall sign any Supplement authorized pursuant to this Article 12 if the Supplement does not adversely affect the rights, duties, liabilities or immunities of the Indenture Trustee. If it does, the Indenture Trustee may, but need not, sign it. In signing any Supplement, the Indenture Trustee shall be entitled to receive, if requested, an indemnity reasonably satisfactory to it and to receive and, subject to Section 10.1, shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that such Supplement is authorized or permitted by the Indenture and that it will be valid and binding upon the Issuer in accordance with its terms.
Section 12.7.    Conformity with Trust Indenture Act.
If the Indenture is qualified under the TIA, every amendment of the Indenture and every Supplement executed pursuant to this Article 12 shall comply in all respects with the TIA.
ARTICLE 13.

MISCELLANEOUS
Section 13.1.    Compliance Certificates.
(a)    Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of the Indenture, upon request of the Indenture Trustee, the Issuer shall furnish to the Indenture Trustee (i) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in the Indenture relating to the proposed action have been complied with and (ii) if the Indenture is qualified under the TIA and the TIA so requires, an Independent Certificate from a firm of certified public accountants or other experts meeting the applicable requirements of this Section 13.1, 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 the Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in the 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;
(ii)    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 such covenant or condition has been complied with;
(iii)    a statement as to whether, in the opinion of each such signatory such condition or covenant has been complied with;

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(iv)    if the Indenture is qualified under the TIA and the TIA so requires, prior to the deposit of any property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the Lien of the Indenture, the Issuer shall, in addition to any obligation imposed in Section 13.1(a) or elsewhere in the Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Issuer of the property or securities to be so deposited;
(v)    whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (iv), the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuer of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of the Issuer, as set forth in the certificates delivered pursuant to clause (iv) and this clause (v), is 10% or more of the Aggregate Invested Amount, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer’s Certificate is less than $25,000 or less than one percent of the Aggregate Invested Amount;
(vi)    if the Indenture is qualified under the TIA and the TIA so requires, whenever any property or securities are to be released from the Lien of the Indenture, the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under the Indenture in contravention of the provisions hereof;
(vii)    whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (vi), the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, or securities released from the Lien of the Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (vi) and this clause (vii), equals 10% or more of the Aggregate Invested Amount, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s Certificate is less than $25,000 or less than one percent of the then Aggregate Invested Amount.
(b)    Notwithstanding Section 3.3 or any provision of this Section 13.1, without any action by the Indenture Trustee, the Issuer may (A) collect, liquidate, sell or otherwise dispose of the Issuer Assets as and to the extent permitted or required by the Transaction Documents and (B) make cash payments out of the Issuer Accounts as and to the extent permitted or required by the Transaction Documents.

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Section 13.2.    Forms 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 my certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized 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 an Authorized Officer or any 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 Seller, the Servicer or the Issuer, stating that the information with respect to such factual matters is in the possession of the Seller, the Servicer 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 the Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in the Indenture, in connection with any application, certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document (x) as a condition of the granting of such application, or (y) 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 effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in each 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 and shall incur no liability for its acting in reliance thereon.
Section 13.3.    Actions of Noteholders.
(a)    Any request, demand, authorization, direction, notice, consent, waiver or other action provided by the Indenture to be given or taken by the Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent 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, when required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of

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the Indenture and conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 13.3.
(b)    The fact and date of the execution by any Noteholder of any such instrument or writing may be proved in any reasonable manner which the Indenture Trustee deems sufficient.
(c)    Any request, demand, authorization, direction, notice, consent, waiver or other act by a Noteholder shall bind every Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, or omitted to be done, by the Indenture Trustee or the Issuer in reliance thereon, regardless of whether notation of such action is made upon such Note.
(d)    The Indenture Trustee may require such additional proof of any matter referred to in this Section 13.3 as it shall deem necessary.
(e)    The ownership of Notes shall be proved by the Note Register.
Section 13.4.    Notices.
(a)    Any notice or communication by the Issuer or the Indenture Trustee to the other shall be in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier, electronic mail, or overnight air courier guaranteeing next day delivery, to the other’s address:
If to the Issuer:

OnDeck Asset Securitization Trust II LLC
1400 Broadway, 25th Floor
New York, NY 10018
Attn: On Deck Capital, Inc. – General Counsel
Phone: (917) 677-7117
Fax: (646) 417-6376

with a copy to:

On Deck Capital, Inc.
1400 Broadway, 25th Floor
New York, NY 10018
Attn: On Deck Capital, Inc. – General Counsel
Phone: (917) 677-7117
Fax: (646) 417-6376
Email: legal@ondeck.com


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If to the Indenture Trustee:

Deutsche Bank Trust Company Americas
1761 East St. Andrews Place
Santa Ana, California 92705
Attn: Trust Administration―OD 1601
Phone: (714) 247-6000
Fax: (714) 247-6009
Email: holder.inquiry@db.com

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 days after the date that such notice is mailed, (iii) delivered by telex, telecopier, or electronic mail shall be deemed given on the date of delivery of such notice, and (iv) delivered by overnight air courier shall be deemed delivered one Business Day after the date that such notice is delivered to such overnight courier.
Notwithstanding any provisions of the 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 the 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.
In addition to the foregoing, the Issuer and the Indenture Trustee agree to accept and act upon notice, instructions or directions pursuant to the Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Indenture Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Indenture Trustee in its discretion elects to act upon such instructions, the Indenture Trustee’s understanding of such instructions shall be deemed controlling. The Indenture Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Indenture Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Notices required to be given to the Rating Agencies by the Issuer or the Indenture Trustee shall be in writing, personally delivered or mailed certified mail, return receipt requested

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to, in the case of DBRS Inc., at the following address: 140 Broadway, New York, New York 10005, Attention Surveillance E-mail: ABS_Surveillance@dbrs.com and in the case of S&P, at the following address: 55 Water Street, New York, New York 10041, Attention: Structured Credit Surveillance E-mail servicer_reports@standardandpoors.com. Where the Indenture provides for notice to each Rating Agency, failure to furnish such notice shall not affect any other rights or obligations hereunder, and shall not under any circumstance constitute an Event of Default, Potential Event of Default, an Amortization Event or a Potential Amortization Event with respect to any Series of Notes or any other default or adverse consequence under the Transaction Documents.
(b)    Where the Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if sent in writing and mailed, first class postage prepaid, to each Noteholder affected by such event, at its address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed (if any) for the giving of such notice. In any case where notice to a Noteholder 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 which is mailed in the manner herein provided shall be conclusively presumed to have been duly given. Where the 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 waiver.
In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made that is satisfactory to the Indenture Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 13.5.    Conflict with TIA.
If the Indenture is qualified under the TIA and any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in the Indenture by any of the provisions of the TIA, such required provision shall control.
If the Indenture is qualified under the TIA, the provisions of TIA §§ 310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by the Indenture) are a part of and govern the Indenture, whether or not physically contained herein.
Section 13.6.    Rules by the Indenture Trustee.
The Indenture Trustee may make reasonable rules for action by or at a meeting of Noteholders.

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Section 13.7.    Duplicate Originals.
The parties may sign any number of copies of this Base Indenture. One signed copy is enough to prove this Base Indenture.
Section 13.8.    Benefits of Indenture.
Except as set forth in an Indenture Supplement, nothing in the Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 13.9.    Payment on Business Day.
In any case where any Payment Date, redemption date or maturity date of any Note shall not be a Business Day, then (notwithstanding any other provision of the Indenture) payment of interest or principal (and premium, if any), as the case may be, 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 Payment Date, redemption date, or maturity date; provided, however, that no interest shall accrue for the period from and after such Payment Date, redemption date, or maturity date, as the case may be.
Section 13.10.    Governing Law.
THIS BASE INDENTURE, AND ALL MATTERS ARISING FROM OR IN ANY MANNER RELATING TO THIS BASE INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.11.    Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of the Indenture 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 the Indenture and shall in no way affect the validity of enforceability of the other provisions of the Indenture or of the Notes or rights of the Noteholders thereof.
Section 13.12.    Counterparts.
This Base Indenture may be executed in two or more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Base Indenture by facsimile transmission or electronic transmission (in pdf format) shall be as effective as delivery of a manually executed counterpart of this Base Indenture.
Section 13.13.    Successors.

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All agreements of the Issuer in the Indenture and the Notes shall bind its successor; provided, however, the Issuer may only assign its obligations or rights under the Indenture or any Transaction Document as expressly provided herein. All agreements of the Indenture Trustee in the Indenture shall bind its successor.
Section 13.14.    Table of Contents, Headings, etc.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Base Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.15.    Recording of Indenture.
If the 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 to the effect that such recording is necessary either for the protection of the Noteholders or any other person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under the Indenture or to satisfy any provision of the TIA (if the Indenture is qualified thereunder).
Section 13.16.    No Petition.
The Indenture Trustee, by entering into the Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not at any time institute against the Issuer or join in any institution against the Issuer of, any involuntary 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, this Base Indenture or any of the other Transaction Documents.
Section 13.17.    Non-Recourse.
Notwithstanding any provisions contained in the Indenture to the contrary, the Issuer shall not, and shall not be obligated to, pay any amounts (including, without limitation, fees, costs, indemnified amounts or expenses) due in connection with the Indenture other than in accordance with the Indenture, and any claim in respect of any such amounts shall be limited in recourse to the Collateral. Any amount which the Issuer does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in § 101 of the Bankruptcy Code against or limited liability company obligation of the Issuer for any such insufficiency unless and until funds are available for the payment of such amounts as aforesaid. The provisions of this Section 13.17 shall survive the termination of the Indenture.
Section 13.18.    Waiver of Jury Trial.

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EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THE NOTES, THIS BASE INDENTURE OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS BASE INDENTURE.
Section 13.19.    Submission to Jurisdiction.
Each of the parties hereto hereby irrevocably and unconditionally (i) submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court in New York County or federal court of the United States of America for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to the Notes, this Base Indenture or any Indenture Supplement, or for recognition or enforcement of any judgment arising out of or relating to the Notes, this Base Indenture or any Indenture Supplement; (ii) agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, federal court; (iii) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; (iv) consents that any such action or proceeding may be brought in such courts and waives any objection it may now or hereafter have to the laying of venue of any such action or proceeding in any such court and any objection it may now or hereafter have that such action or proceeding was brought in an inconvenient court, and agrees not to plead or claim the same; and (v) consents to service of process in the manner provided for notices in Section 13.4 (provided that, nothing in this Base Indenture shall affect the right of any such party to serve process in any other manner permitted by law).

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the Indenture Trustee and the Issuer have caused, this Base Indenture to be duly executed by their respective duly authorized officers as of the day and year first written above.

ONDECK ASSET SECURITIZATION TRUST II LLC, as Issuer
By: /s/ Howard Katzenberg_____________
Name:    Howard Katzenberg
Title:     Chief Financial Officer

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee
By: /s/ Karlene Benvenuto______________
Name:    Karlene Benvenuto
Title:     Assistant Vice President

By: /s/ Marion Hogan__________________
Name:     Marion Hogan
Title:     Assistant Vice President




Exhibit
Exhibit 10.3

ONDECK ASSET SECURITIZATION TRUST II LLC,
as Issuer
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
SERIES 2016-1 INDENTURE SUPPLEMENT
dated as of May 17, 2016
to
BASE INDENTURE
dated as of May 17, 2016
$250,000,000
of
Asset Backed Notes


        

Table of Contents
 
 
Page
PRELIMINARY STATEMENT
1

 
 
 
DESIGNATION
1

 
 
 
ARTICLE I DEFINITIONS
1

 
 
 
ARTICLE II ARTICLE 5 OF THE BASE INDENTURE
20

 
Section 2.1 Establishment of Series 2016-1 Accounts
20

 
Section 2.2 Series 2016-1 Reserve Account
22

 
Section 2.3 Indenture Trustee As Securities Intermediary
23

 
Section 2.4 Allocations with Respect to the Series 2016-1 Notes
24

 
Section 2.5 Monthly Application of Total Available Amount
25

 
Section 2.6 Distribution of Interest Payments
27

 
Section 2.7 Distributions of Principal Payments
27

 
 
 
ARTICLE III AMORTIZATION EVENTS; SERVICER DEFAULTS
28

 
Section 3.1 Amortization Events
28

 
Section 3.2 Servicer Defaults
30

 
 
 
ARTICLE IV OPTIONAL PREPAYMENT
30

 
 
 
ARTICLE V SERVICING FEE
30

 
Section 5.1 Servicing Fee
30

 
 
 
ARTICLE VI FORM OF SERIES 2016-1 NOTES
31

 
Section 6.1 Initial Issuance of Series 2016-1 Notes
31

 
Section 6.1 Restricted Global Notes
31

 
Section 6.3 Temporary Global Notes and Permanent Global Notes
31

 
Section 6.4 Definitive Notes
32

 
Section 6.5 Transfer Restrictions
32

 
 
 
ARTICLE VII INFORMATION
37

 
 
 
ARTICLE VIII MISCELLANEOUS
38

 
Section 8.1 Ratification of Indenture
38

 
Section 8.2 Governing Law
38

 
Section 8.3 Further Assurances
38

 
Section 8.4 Exhibits
38

 
Section 8.5 No Waiver; Cumulative Remedies
39


-i-

Page

 
Section 8.6 Amendments
39

 
Section 8.7 Severability
39

 
Section 8.8 Counterparts
39

 
Section 8.9 No Bankruptcy Petition
39

 
Section 8.10 Notice to Rating Agencies
39

 
Section 8.11 Annual Opinion of Counsel
40

 
Section 8.12 Tax Treatment
40

 
Section 8.13 Confidentiality
40

 
 
 
EXHIBITS
 
 
 
 
 
Exhibit A-1:
Form of Restricted Global Class A Note
 
Exhibit A-2:
Form of Temporary Global Class A Note
 
Exhibit A-3:
Form of Permanent Global Class A Note
 
Exhibit B-1:
Form of Restricted Global Class B Note
 
Exhibit B-2:
Form of Temporary Global Class B Note
 
Exhibit B-3:
Form of Permanent Global Class B Note
 
Exhibit C-1:
Form of Transfer Certificate
 
Exhibit C-2:
Form of Transfer Certificate
 
Exhibit C-3:
Form of Transfer Certificate
 
Exhibit C-4:
Form of Clearing System Certificate
 
Exhibit C-5:
Form of Certificate of Beneficial Ownership
 
Exhibit D:
Form of Monthly Settlement Statement
 
Exhibit E:
Form of Withdrawal Request
 
Exhibit F:
Industry Codes
 
Exhibit G:
SIC Industry Codes
 



-ii-

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SERIES 2016-1 SUPPLEMENT, dated as of May 17, 2016 (as amended, supplemented, restated or otherwise modified from time to time, this “Indenture Supplement”) between ONDECK ASSET SECURITIZATION TRUST II LLC, a special purpose limited liability company established under the laws of Delaware (the “Issuer”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, in its capacity as Indenture Trustee (together with its successors in trust thereunder as provided in the Base Indenture referred to below, the “Indenture Trustee”), to the Base Indenture, dated as of May 17, 2016, between the Issuer and the Indenture Trustee (as further amended, modified, restated or supplemented from time to time, exclusive of Indenture Supplements creating new Series of Notes, the “Base Indenture”).
PRELIMINARY STATEMENT
WHEREAS, Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that the Issuer and the Indenture Trustee may at any time and from time to time enter into an Indenture Supplement to the Base Indenture for the purpose of authorizing the issuance of one or more Series of Notes.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Notes to be issued pursuant to the Base Indenture and this Indenture Supplement and such Series of Notes shall be designated generally as Series 2016-1 Asset Backed Notes.
The Series 2016-1 Notes shall be issued in two classes: the first of which shall be designated as Series 2016-1 Asset Backed Notes, Class A, and referred to herein as the Class A Notes, and the second of which shall be designated as the Series 2016-1 Asset Backed Notes, Class B, and referred to herein as the Class B Notes. The Class A Notes and the Class B Notes are referred to herein collectively as the “ Series 2016-1 Notes.”
The Series 2016-1 Notes shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof.
The net proceeds from the sale of the Series 2016-1 Notes shall be applied in accordance with Section 2.4(a).
ARTICLE I
DEFINITIONS
(a)     All capitalized terms not otherwise defined herein are defined in the Definitions List attached to the Base Indenture as Schedule 1 thereto. All Article, Section or Subsection references herein shall refer to Articles, Sections or Subsections of this Indenture Supplement, except as otherwise provided herein. Unless otherwise stated herein, as the context


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otherwise requires or if such term is otherwise defined in the Base Indenture, each capitalized term used or defined herein shall relate only to the Series 2016-1 Notes and not to any other Series of Notes issued by the Issuer.
(b)     The following words and phrases shall have the following meanings with respect to the Series 2016-1 Notes and the definitions of such terms are applicable to the singular as well as the plural form of such terms and to the masculine as well as the feminine and neuter genders of such terms:
“Additional Servicer Default” is defined in Section 3.2.
“Adjusted Pool Outstanding Principal Balance” means, on any date of determination, the amount by which the sum of the Outstanding Principal Balances for all Pooled Loans exceeds the sum of the Outstanding Principal Balances for all 30 MPF Pooled Loans.
“Aggregate Excess Concentration Amount” means, on any date of determination, an amount equal to the product of (x) the Series 2016-1 Invested Percentage on such date and (y) the sum, without duplication, on such date of:
(i)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which are located in California exceeds 20.00% of the Adjusted Pool Outstanding Principal Balance;
(ii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which are located in Florida exceeds 15.00% of the Adjusted Pool Outstanding Principal Balance;
(iii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which are located in New York exceeds 15.00% of the Adjusted Pool Outstanding Principal Balance;
(iv)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which are located in Texas exceeds 15.00% of the Adjusted Pool Outstanding Principal Balance;
(v)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which are located in a single state (other than California, Florida, New York or Texas) exceeds 10.00% of the Adjusted Pool Outstanding Principal Balance;


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(vi)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which share the Highest Concentration Industry Code exceeds 25.00% of the Adjusted Pool Outstanding Principal Balance;
(vii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which share the same Industry Code (other than the Highest Concentration Industry Code) exceeds 20.00% of the Adjusted Pool Outstanding Principal Balance;
(viii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Group A exceeds 0.00% of the Adjusted Pool Outstanding Principal Balance;
(ix)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Group B exceeds 2.00% of the Adjusted Pool Outstanding Principal Balance;
(x)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Group C exceeds 5.00% of the Adjusted Pool Outstanding Principal Balance;
(xi)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Type 1 exceeds 15.00% of the Adjusted Pool Outstanding Principal Balance;
(xii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Type 2 exceeds 10.00% of the Adjusted Pool Outstanding Principal Balance;
(xiii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which were classified by OnDeck on the basis of the SIC Codes of the business of such Obligors as falling within SIC Industry Code Type 3 exceeds 10.00% of the Adjusted Pool Outstanding Principal Balance;


4

(xiv)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having a number of Payment Dates at origination which is more than the One Year Equivalent with respect to such Loan exceeds 30.00% of the Adjusted Pool Outstanding Principal Balance;
(xv)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having a number of Payment Dates at origination which is more than the One Year Equivalent with respect to such Loan and the Obligors of which had OnDeck Scores® at origination of less than 470 exceeds 0.00% of the Adjusted Pool Outstanding Principal Balance;
(xvi)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having a number of Payment Dates at origination which is more than the One Year Equivalent with respect to such Loan and the Obligors of which had OnDeck Scores® at origination of less than 500 exceeds 5.00% of the Adjusted Pool Outstanding Principal Balance;
(xvii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having a number of Payment Dates at origination which is more than the One Year Equivalent with respect to such Loan and the Obligors of which had OnDeck Scores® at origination of less than 530 exceeds 20.00% of the Adjusted Pool Outstanding Principal Balance);
(xviii)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having an Outstanding Principal Balance in excess of $75,000 exceeds 40.00% of the Adjusted Pool Outstanding Principal Balance;
(xix)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having an Outstanding Principal Balance in excess of $125,000 exceeds 20.00% of the Adjusted Pool Outstanding Principal Balance;
(xx)    the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) having an Outstanding Principal Balance in excess of $200,000 exceeds 7.50% of the Adjusted Pool Outstanding Principal Balance;
(xxi)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which had OnDeck Scores® at origination of less than 470 exceeds 10.00% of the Adjusted Pool Outstanding Principal Balance;


5

(xxii)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which had OnDeck Scores® at origination of less than 500 exceeds 30.00% of the Adjusted Pool Outstanding Principal Balance;
(xxiii)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which had OnDeck Scores® at origination of less than 530 exceeds 65.00% of the Adjusted Pool Outstanding Principal Balance;
(xxiv)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which have been in business for less than two (2) years exceeds 10.00% of the Adjusted Pool Outstanding Principal Balance;
(xxv)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) the Obligors of which have been in business for less than five (5) years exceeds 40.00% of the Adjusted Pool Outstanding Principal Balance;
(xxvi)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) that have been the subject of Material Modifications exceeds 5.00% of the Adjusted Pool Outstanding Principal Balance;
(xxvii)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) that are not Renewal Loans exceeds 65.00% of the Adjusted Pool Outstanding Principal Balance;
(xxviii) the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) that are FAP Loans and that are not Renewal Loans exceeds 25.00% of the Adjusted Pool Outstanding Principal Balance; and
(xxix)     the amount by which the aggregate Outstanding Principal Balance of all Pooled Loans (excluding all 30 MPF Pooled Loans) that are Weekly Pay Loans exceeds 50.00% of the Adjusted Pool Outstanding Principal Balance.
“Amortization Event” is defined in Article III.
“Annual Backup Servicer Fee Limit” means, for any Payment Date, an amount equal to the excess, if any, of (x) $200,000 over (y) the aggregate amount of the Series 2016-1 Backup Servicing Fees paid to the Backup Servicer pursuant to clause (iii) of Section 2.5(b) on the eleven Payment Dates preceding such Payment Date (or, such lesser number of Payment Dates as shall have occurred since the Series 2016-1 Closing Date).


6

“Annual Custodian Fee Limit” means, for any Payment Date, an amount equal to the excess, if any, of (x) $15,000 over (y) the aggregate amount of fees, expenses and indemnities paid to the Custodian pursuant to clause (i) of Section 2.5(b) on the eleven Payment Dates preceding such Payment Date (or, such lesser number of Payment Dates as shall have occurred since the Series 2016-1 Closing Date).
“Annual Indenture Trustee Fee Limit” means, for any Payment Date, an amount equal to the excess, if any, of (x) $135,000 over (y) the aggregate amount of fees, expenses and indemnities paid to the Indenture Trustee pursuant to clause (i) of Section 2.5(b) on the eleven Payment Dates preceding such Payment Date (or, such lesser number of Payment Dates as shall have occurred since the Series 2016-1 Closing Date).
“Applicable Procedures” is defined in Section 6.5(c).
“Cash” means money, currency or a credit balance in any demand, securities account or deposit account; provided, however, that notwithstanding anything to the contrary contained herein, “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of OnDeck and its Subsidiaries.
“Cash Equivalents” means, as of any day, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such day; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such day and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one year after such day and issued or accepted by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000 and (iii) has the highest rating obtainable from either S&P or Moody’s.
“Class A Adjusted Invested Amount” means, on any date of determination, the excess, if any, of (a) the Class A Invested Amount on such date over (b) the amount of cash and Permitted Investments on deposit in the Series 2016-1 Collection Account (after giving effect to any withdrawals therefrom on such date pursuant to Section 2.4(c)) on such date.


7

“Class A Initial Invested Amount” means the aggregate initial principal amount of the Class A Notes, which is $211,540,000.
“Class A Interest Payment” means (a) for the initial Payment Date after the Series 2016-1 Closing Date, the product of (i) 1/360 of the Class A Note Rate, (ii) the number of days from and including the Series 2016-1 Closing Date to and excluding the 17th day of the calendar month in which the initial Payment Date occurs (calculated on the basis of a 360-day year consisting of twelve 30-day months) and (iii) the Initial Class A Invested Amount and (b) for any subsequent Payment Date, the sum of (i) the product of (x) one-twelfth of the Class A Note Rate and (y) the Class A Invested Amount on the immediately preceding Payment Date (after giving effect to all payments of principal of the Class A Notes on such immediately preceding Payment Date) and (ii) the portion, if any, of the Class A Interest Payment for the immediately preceding Payment that was not paid on such Payment Date, together with interest thereon (to the extent permitted by law) at the Class A Note Rate.
“Class A Invested Amount” means, as of any date of determination, an amount equal to (a) the Class A Initial Invested Amount minus (b) the amount of principal payments made to Class A Noteholders on or prior to such date.
“Class A Note Owner” means, with respect to the Series 2016-1 Global Note that is a Class A Note, the Person who is the beneficial owner of an interest in such Series 2016-1 Global Note, as reflected on the books of DTC, or on the books of a Person maintaining an account with DTC (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of DTC).
“Class A Note Rate” means 4.21% per annum.
“Class A Noteholder” means the Person in whose name a Class A Note is registered in the Note Register.
“Class A Notes” means any one of the Series 2016-1 Asset Backed Notes, Class A, executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit A-1, A-2 or A-3. Definitive Class A Notes shall have such insertions and deletions as are necessary to give effect to the provisions of Section 2.11 of the Base Indenture.
“Class A Required Enhancement Amount” means, on any date, an amount equal to the product of (a) the Class A Required Enhancement Percentage and (b) the Class A Adjusted Invested Amount on such date; provided, however, that, after the declaration or occurrence of an Amortization Event with respect to the Series 2016-1 Notes, the Class A Required Enhancement Amount shall equal the Class A Required Enhancement Amount on the date of the declaration or occurrence of such Amortization Event.
“Class A Required Enhancement Percentage” means 29.869%.


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“Class B Adjusted Invested Amount” means, on any date of determination, the excess, if any, of (a) the Class B Invested Amount on such date over (b) the excess, if any, of (x) the amount of cash and Permitted Investments on deposit in the Series 2016-1 Collection Account (after giving effect to any withdrawals therefrom on such date pursuant to Section 2.3(c)) on such date over (y) the Class A Invested Amount on such date.
“Class B Initial Invested Amount” means the aggregate initial principal amount of the Class B Notes, which is $38,460,000.
“Class B Interest Payment” means (a) for the initial Payment Date after the Series 2016-1 Closing Date, the product of (i) 1/360 of the Class B Note Rate, (ii) the number of days from and including the Series 2016-1 Closing Date to and excluding the 17th day of the calendar month in which the initial Payment Date occurs (calculated on the basis of a 360-day year consisting of twelve 30-day months) and (iii) the Initial Class B Invested Amount and (b) for any subsequent Payment Date, the sum of (i) the product of (x) one-twelfth of the Class B Note Rate and (y) the Class B Invested Amount on the immediately preceding Payment Date (after giving effect to all payments of principal of the Class B Notes on such immediately preceding Payment Date) and (ii) the portion, if any, of the Class B Interest Payment for the immediately preceding Payment Date that was not paid on such Payment Date, together with interest thereon (to the extent permitted by law) at the Class B Note Rate.  
“Class B Invested Amount” means, as of any date of determination, an amount equal to (a) the Class B Initial Invested Amount minus (b) the amount of principal payments made to Class B Noteholders on or prior to such date.
“Class B Note Owner” means, with respect to a Series 2016-1 Global Note that is a Class B Note, the Person who is the beneficial owner of an interest in such Series 2016-1 Global Note, as reflected on the books of DTC, or on the books of a Person maintaining an account with DTC (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of DTC).
“Class B Note Rate” means 7.63% per annum.
“Class B Noteholder” means the Person in whose name a Class B Note is registered in the Note Register.
“Class B Notes” means any one of the Series 2016-1 Asset Backed Notes, Class B, executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit B-1, B-2 or B-3. Definitive Class B Notes shall have such insertions and deletions as are necessary to give effect to the provisions of Section 2.11 of the Base Indenture.
“Class B Required Enhancement Amount” means, on any date, an amount equal to the product of (a) the Class B Required Enhancement Percentage and (b) the Series


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2016-1 Adjusted Invested Amount on such date; provided, however, that, after the declaration or occurrence of an Amortization Event with respect to the Series 2016-1 Notes, the Class B Required Enhancement Amount shall equal the Class B Required Enhancement Amount on the date of the declaration or occurrence of such Amortization Event.
“Class B Required Enhancement Percentage” means 9.890%.
“Clearstream” is defined in Section 6.3.
“Confidential Information” means information delivered to the Indenture Trustee or any Series 2016-1 Noteholder by or on behalf of the Issuer or OnDeck in connection with and relating to the transactions contemplated by or otherwise pursuant to the Indenture and the Transaction Documents, but will not include information that: (i) was publicly known or otherwise known to the Indenture Trustee or the Series 2016-1 Noteholder prior to the time of such disclosure; (ii) subsequently becomes publicly known through no act or omission by the Indenture Trustee, any Series 2016-1 Noteholder or any Person acting on behalf of the Indenture Trustee or any Series 2016-1 Noteholder; (iii) otherwise is known or becomes known to the Indenture Trustee or any Series 2016-1 Noteholder other than (x) through disclosure by the Issuer or OnDeck or (y) as a result of a breach of fiduciary duty to the Issuer or a contractual duty to the Issuer; or (iv) is allowed to be treated as non-confidential by consent of the Issuer and OnDeck.
“Consolidated Liquidity” means, as of any day, an amount determined for OnDeck and its Subsidiaries, on a consolidated basis, equal to the sum of (i) unrestricted Cash and Cash Equivalents of OnDeck and its Subsidiaries, as of such day, and (ii) the aggregate amount of all unused and available credit commitments under any credit facilities of OnDeck and its Subsidiaries, as of such day; provided, that, as of such day, all of the conditions to funding such amounts have been fully satisfied (other than delivery of prior notice of funding and pre-funding notices, opinions and certificates that are reasonably capable of delivery as of such day) and no lender under such credit facilities shall have refused to make a loan or other advance thereunder at any time after a request for a loan was made thereunder.
“Consolidated Total Debt” means, as of any day, the aggregate stated balance sheet amount of all Indebtedness of OnDeck and its Subsidiaries determined on a consolidated basis in accordance with GAAP, including all accrued and unpaid interest on the foregoing, provided, that accounts payable, accrued expenses, liabilities for leasehold improvements and deferred revenue of OnDeck and its Subsidiaries shall not be included in any determination of Consolidated Total Debt.
“Convertible Indebtedness” means any Indebtedness of OnDeck that (a) is convertible to equity, including convertible preferred stock, (b) requires no payment of principal thereof or interest thereon and (c) is fully subordinated to all indebtedness for borrowed money of OnDeck, as to right and time of payment and as to any other rights


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and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such indebtedness for borrowed money.
“DBRS” means DBRS, Inc. and any successor thereto.
“Deficiency” is defined in Section 2.2(c)(i).
“Delinquency Ratio” means, as of any Determination Date, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pooled Loans that had a Missed Payment Factor of (i) with respect to Daily Pay Loans, fifteen or higher as of such Determination Date, or (ii) with respect to Weekly Pay Loans, three or higher as of such Determination Date and (b) the denominator of which is the Pool Outstanding Principal Balance as of such Determination Date.
“DTC” means The Depository Trust Company or its successor, as the Clearing Agency for the Series 2016-1 Notes.
“DTC Custodian” means the Indenture Trustee, in its capacity as custodian for DTC and any successor thereto in such capacity.
“Euroclear” is defined in Section 6.3.
“FAP Loan” means a Loan originated through a third-party broker that is part of OnDeck’s “Funding Advisor Program” channel.
“Financial Assets” is defined in Section 2.3(b)(i).
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of OnDeck and its Subsidiaries ending on December 31 of each calendar year.
“Highest Concentration Industry Code” means, on any date of determination, the Industry Code shared by Obligors of Pooled Loans having the highest aggregate Outstanding Principal Balance.
“Industry Code” means, with respect to any Obligor of a Pooled Loan, the industry code listed on Exhibit F under which the business of such Obligor has been classified by OnDeck.
“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.


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“Interest and Expense Amount” means, for any Payment Date, an amount equal to the sum of (x) the Interest Payment for such Payment Date and (y) the amounts to be distributed from the Series 2016-1 Settlement Account pursuant to paragraphs (i) through (iii) of Section 2.5(b) on such Payment Date.
“Interest Payment” means, for any Payment Date, the sum of the Class A Interest Payment and the Class B Interest Payment for such Payment Date.
“Legal Final Payment Date” means the May 2020 Payment Date.
“Leverage Ratio” means the ratio as of any day of (a) Consolidated Total Debt, excluding Subordinated Debt and Convertible Indebtedness, as of such day, to (b) the sum of (i) OnDeck’s total stockholders’ equity as of such day, (ii) Warranty Liability as of such day and (iii) the sum of Subordinated Debt and Convertible Indebtedness as of such day.
“Majority in Interest” means (a) so long as the Class A Notes are Outstanding, Class A Noteholders holding more than 50% of the Class A Invested Amount (excluding any Class A Notes held by the Issuer or any Affiliate of the Issuer) and (b) so long as the Class B Notes are Outstanding and no Class A Notes are Outstanding, Class B Noteholders holding more than 50% of the Class B Invested Amount (excluding any Class B Notes held by the Issuer or any Affiliate of the Issuer).
“Material Modification” means, with respect to any Loan, (a) a reduction in the interest rate, an extension of the term, a reduction in, or change in frequency of, any required Payment or an extension of a Loan Payment Date, in each case other than a temporary modification made in accordance with the Credit Policies, or (b) a reduction in the Outstanding Principal Balance.
“New York UCC” is defined in Section 2.3(b)(i).
“Note Rate” means the Class A Note Rate or the Class B Note Rate, as the context may require.
“One Year Equivalent” means, with respect to any Loan that is a Daily Pay Loan, 252 Loan Payment Dates and, with respect to any Loan that is a Weekly Pay Loan, 52 Loan Payment Dates.
“Outstanding” means, with respect to the Series 2016-1 Notes, all Series 2016-1 Notes theretofore authenticated and delivered under the Indenture, except (a) Series 2016-1 Notes theretofore canceled or delivered to the Transfer Agent and Registrar for cancellation, (b) Series 2016-1 Notes which have not been presented for payment but funds for the payment of which are on deposit in the Series 2016-1 Distribution Account and are available for payment of such Series 2016-1 Notes, and Series 2016-1 Notes which are considered paid pursuant to Section 11.1 of the Base Indenture, or (c) Series 2016-1 Notes in exchange for or in lieu of other Series 2016-1 Notes which have been


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authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Series 2016-1 Notes are held by a purchaser for value.
“Outstanding Principal Balance Decline” means, for any Payment Date, (a)(i) with respect to any Pooled Loan that became a 30 MPF Pooled Loan during the related Monthly Period, the Outstanding Principal Balance of such Pooled Loan on the date such Pooled Loan became a 30 MPF Pooled Loan, (ii) with respect to any Pooled Loan other than any Pooled Loan included in clause (i) that became a Charged-Off Loan during the related Monthly Period, the Outstanding Principal Balance of such Pooled Loan on the date such Pooled Loan became a Charged-Off Loan and (iii) with respect to any Pooled Loan that became a Warranty Repurchase Loan during the related Monthly Period, the Outstanding Principal Balance of such Pooled Loan on the date such Pooled Loan became a Warranty Repurchase Loan, and (b) with respect to any Pooled Loan other than a Pooled Loan included in clause (a), an amount equal to the amount, if any, by which the Outstanding Principal Balance of such Pooled Loan as of the first day of the related Monthly Period (or, if the Transfer Date for such Pooled Loan was after such day, as of such Transfer Date) exceeded the Outstanding Principal Balance of such Pooled Loan as of the first day of the Monthly Period immediately succeeding the related Monthly Period.
“Payment Date” means the 17th day of each month, or if such date is not a Business Day, the next succeeding Business Day, commencing June 17, 2016.
“Permanent Global Notes” is defined in Section 6.3.
“Prepayment Date” is defined in Article IV.
“Principal Payment Amount” means, for any Payment Date, the sum of the Outstanding Principal Balance Declines with respect to each Pooled Loan for such Payment Date.
“QIBs” is defined in Section 6.1.
“Rating Agencies” means, with respect to the Series 2016-1 Notes, DBRS and S&P and any other nationally recognized rating agency rating the Series 2016-1 Notes at the request of the Issuer.
“Rating Agency Condition” means, with respect to the Series 2016-1 Notes with respect to any action subject to such condition, the delivery by the Issuer of written (including in the form of e-mail) notice of the proposed action to each Rating Agency with respect to the Series 2016-1 Notes at least ten Business Days prior to the effective date of such action (or such shorter notice period if specified in the Base Indenture or this Indenture Supplement with respect to any specific action, or if ten Business Days prior notice is impractical, such advance notice as is practicable).


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“Record Date” means, with respect to each Payment Date, the immediately preceding Business Day.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Renewal Loan” means a Loan the proceeds of which were used to satisfy in full an existing Loan.
“Restricted Global Notes” is defined in Section 6.2.
“Restricted Notes” means the Restricted Global Notes and all other Series 2016-1 Notes evidencing the obligations, or any portion of the obligations, initially evidenced by the Restricted Global Notes, other than certificates transferred or exchanged upon certification as provided in Section 6.5.
“Restricted Period” means the period commencing on the Series 2016-1 Closing Date and ending on the 40th day after the Series 2016-1 Closing Date.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Securities Intermediary” is defined in Section 2.3(a).
“Series 2016-1” means Series 2016-1, the Principal Terms of which are set forth in this Indenture Supplement.
“Series 2016-1 Adjusted Invested Amount” means, on any date of determination, the sum of the Class A Adjusted Invested Amount and the Class B Adjusted Invested Amount.
“Series 2016-1 Amortization Period” means the period beginning at the earlier of (a) the close of business on the Business Day immediately preceding the day on which an Amortization Event is deemed to have occurred with respect to the Series 2016-1 Notes and (b) the close of business on April 30, 2018, and ending on the date when the Series 2016-1 Notes are fully paid.
“Series 2016-1 Asset Amount” means, on any date of determination, the product of (a) the Adjusted Pool Outstanding Principal Balance and (b) the percentage equivalent of a fraction the numerator of which is the Series 2016-1 Required Asset Amount on such date and the denominator of which is the sum of (x) the Series 2016-1 Required Asset Amount and (y) the aggregate Required Asset Amounts with respect to each other Series of Notes on such date.
“Series 2016-1 Asset Amount Deficiency” means, on any date of determination, the amount, if any, by which the Series 2016-1 Asset Amount is less than the Series 2016-1 Required Asset Amount on such date.
“Series 2016-1 Average Balance Maximum Amount” means $55,000.


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“Series 2016-1 Backup Servicing Fee” means, for any Payment Date, an amount equal to the Series 2016-1 Percentage on the immediately preceding Payment Date of the Backup Servicing Fee payable by the Issuer to the Backup Servicer pursuant to the Backup Servicing Agreement on such Payment Date.
“Series 2016-1 Charged-Off Loan Percentage” means, with respect to any Business Day, the percentage equivalent (which percentage shall never exceed 100%) of a fraction the numerator of which shall be equal to the Series 2016-1 Required Asset Amount as of the end of the immediately preceding Business Day and the denominator of which is the sum of the numerators used to determine the Charged-Off Loan Percentages for all Series of Notes on such Business Day.
“Series 2016-1 Closing Date” means May 17, 2016.
“Series 2016-1 Collateral” means the Collateral and the Series 2016-1 Series Account Collateral.
“Series 2016-1 Collection Account” is defined in Section 2.1(a).
“Series 2016-1 Excluded Additional Servicer Default” means the occurrence of any Additional Servicer Default with respect to the Series 2016-1 Notes set forth in Section 3.2.
“Series 2016-1 Global Notes” means a Temporary Global Note, a Restricted Global Note or a Permanent Global Note.
“Series 2016-1 Hot Backup Servicer Trigger Event” means the occurrence of either of the following events on any Payment Date:
(a) the Two-Month Weighted Average Excess Spread on such Payment Date is less than 12.50%; or
(b) the Two-Month Average Delinquency Ratio on such Payment Date is greater than 12.50%.
“Series 2016-1 Initial Invested Amount” means the sum of the Class A Initial Invested Amount and the Class B Initial Invested Amount.
“Series 2016-1 Interest and Expense Account” is defined in Section 2.1(a).
“Series 2016-1 Invested Amount” means, on any date of determination, the sum of the Class A Invested Amount and the Class B Invested Amount.
“Series 2016-1 Invested Percentage” means, with respect to any Business Day (i) during the Series 2016-1 Revolving Period, the percentage equivalent of a fraction the numerator of which shall be equal to the Series 2016-1 Required Asset Amount as of the close of business on the immediately preceding Business Day and the denominator of


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which is the sum of the numerators used to determine the Invested Percentages for allocations for all Series of Notes as of the close of business on the immediately preceding Business Day or (ii) during the Series 2016-1 Amortization Period, the percentage equivalent of a fraction the numerator of which shall be equal to the Series 2016-1 Required Asset Amount as of the close of business on the last Business Day of the Series 2016-1 Revolving Period, and the denominator of which is the sum of the numerators used to determine the Invested Percentages for allocations for all Series of Notes as of the end of the immediately preceding Business Day.
“Series 2016-1 Loan Determination Date” means, for any Transfer Date, at least two Business Days prior to such Transfer Date.
“Series 2016-1 Maximum Original Term” means, with respect to a Daily Pay Loan, 378 Loan Payment Dates and, with respect to a Weekly Pay Loan, 78 Loan Payment Dates.
“Series 2016-1 Maximum Initial Principal Balance” means $250,000.
“Series 2016-1 Minimum Payment Percentage” means 45%.
“Series 2016-1 Note Distribution Account” is defined in Section 2.1(a).
“Series 2016-1 Note Owners” means, collectively, the Class A Note Owners and the Class B Note Owners.
“Series 2016-1 Noteholders” means, collectively, the Class A Noteholders and the Class B Noteholders.
“Series 2016-1 Notes” means, collectively, the Class A Notes and the Class B Notes.
“Series 2016-1 Percentage” means, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the Series 2016-1 Invested Amount as of such date and the denominator of which is the Aggregate Invested Amount as of such date.
“Series 2016-1 Prepayment Amount” is defined in Article IV.
“Series 2016-1 Principal Payment Amount” means, for any Payment Date, the sum of (a) the product of (i) the average daily Series 2016-1 Invested Percentage during the related Monthly Period and (ii) the Principal Payment Amount for such Payment Date plus, (b) in the case of the Payment Date on June 18, 2018, the amount described in clause (b)(i) of the definition of Total Available Collections Amount for such Payment Date; provided, however, that, if an Amortization Event with respect to the Series 2016-1 Notes shall have occurred or been declared on or prior to such Payment Date, the Series 2016-1 Principal Payment Amount for such Payment Date will equal the lesser of (x) the portion of the Total Available Amount remaining after the distributions described in


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clauses (i) through (iv) of Section 2.5(b) and (y) the Series 2016-1 Invested Amount on such Payment Date; provided, further, that, if, during the Series 2016-1 Amortization Period, the sum of (A) the Total Available Collections Amount for a Payment Date and (B) the Series 2016-1 Reserve Account Amount on such Payment Date is greater than or equal to the sum of (x) the Interest Payment for such Payment Date, (y) all fees, expenses and indemnities payable to the Indenture Trustee, the Custodian, the Servicer and the Backup Servicer pursuant to Section 2.5(b) on such Payment Date and (z) the Series 2016-1 Invested Amount (before any payments of principal of the Series 2016-1 Notes on such Payment Date), the Series 2016-1 Principal Payment Amount shall equal the Series 2016-1 Invested Amount (before any payments of principal of the Series 2016-1 Notes on that Payment Date).
“Series 2016-1 Required Asset Amount” means, on any date of determination, the sum of (a) the greater of (x) sum of (i) the Class A Adjusted Invested Amount on such date and (ii) the Class A Required Enhancement Amount on such date and (y) the sum of (i) the Series 2016-1 Adjusted Invested Amount on such date and (ii) the Class B Required Enhancement Amount on such date and (b) the Aggregate Excess Concentration Amount on such date.
“Series 2016-1 Required Reserve Account Amount” means $1,648,351.65.
“Series 2016-1 Reserve Account” is defined in Section 2.1(a).
“Series 2016-1 Reserve Account Amount” means, on any date of determination, the amount on deposit in the Series 2016-1 Reserve Account and available for withdrawal therefrom.
“Series 2016-1 Reserve Account Deficiency” means, on any date of determination, the amount, if any, by which the Series 2016-1 Reserve Account Amount is less than the Series 2016-1 Required Reserve Account Amount.
“Series 2016-1 Reserve Account Surplus” means, on any date of determination, the amount, if any, by which the Series 2016-1 Reserve Account Amount exceeds the Series 2016-1 Required Reserve Account Amount.
“Series 2016-1 Revolving Period” means the period from and including the Series 2016-1 Closing Date to but excluding the commencement of the Series 2016-1 Amortization Period.
“Series 2016-1 Series Account Collateral” is defined in Section 2.1(c).
“Series 2016-1 Series Accounts” is defined in Section 2.1(a).
“Series 2016-1 Serviced Portfolio Balance” means, on any date of determination, the product of (a) the Pool Outstanding Principal Balance and (b) the percentage equivalent of a fraction the numerator of which is the Series 2016-1 Required Asset


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Amount on such date and the denominator of which is the sum of (x) the Series 2016-1 Required Asset Amount and (y) the aggregate Required Asset Amounts with respect to each other Series of Notes Outstanding on such date.
“Series 2016-1 Servicing Fee” is defined in Section 5.1.
“Series 2016-1 Servicing Fee Percentage” is defined in Section 5.1.
“Series 2016-1 Settlement Account” is defined in Section 2.1(a).
“Series 2016-1 Termination Date” means the date on which the Series 2016-1 Notes are fully paid.
“Series 2016-1 Warm Backup Servicer Trigger Event” means the occurrence of both of the following events on any Payment Date:
(a) the Three-Month Weighted Average Excess Spread on such Payment Date is greater than 16.00%; and
(b) the Three-Month Average Delinquency Ratio on such Payment Date is less than 10.50%.
“SIC Industry Code Group A” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Group A”.
“SIC Industry Code Group B” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Group B”.
“SIC Industry Code Group C” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Group C”.
“SIC Industry Code Type 1” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Type 1”.
“SIC Industry Code Type 2” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Type 2”.
“SIC Industry Code Type 3” means the SIC Industry Codes listed on Exhibit G, under the heading “SIC Industry Code Type 3”.
“Subordinated Indebtedness” means any Indebtedness of OnDeck that is fully subordinated to all senior indebtedness for borrowed money of OnDeck, as to right and time of payment and as to any other rights and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such senior indebtedness for borrowed money.


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“Tangible Net Worth” means, as of any day, the total of (a) OnDeck’s total stockholders’ equity, minus (b) all Intangible Assets of OnDeck, minus (c) all amounts due to OnDeck from its Affiliates, plus (d) any Convertible Indebtedness, plus (e) any Warranty Liability.
“Temporary Global Notes” is defined in Section 6.3.
“Three-Month Average Delinquency Ratio” means, on any Payment Date, the average of the Delinquency Ratios as of the three Determination Dates immediately preceding such Payment Date.
“Three-Month Weighted Average Excess Spread” means, on any Payment Date, the average of the Weighted Average Excess Spreads as of the three Determination Dates immediately preceding such Payment Date.
“Three-Month Weighted Average Loan Yield” means, on any Payment Date, the average of the Weighted Average Loan Yields as of the three Determination Dates immediately preceding such Payment Date.
“Total Available Amount” means, for any Payment Date, an amount equal to the sum of (a) the Total Available Collections Amount for such Payment Date and (b) the amount to be withdrawn from the Series 2016-1 Reserve Account and deposited into the 2016-1 Settlement Account pursuant to Section 2.2(c)(i) or (d) on such Payment Date.
“Total Available Collections Amount” means, for any Payment Date, the sum of (a) the excess, if any, of (i) the sum of (A) the aggregate amount of Collections allocated to the Series 2016-1 Collection Account pursuant to Section 2.4(b) during the related Monthly Period, (B) the investment income on amounts on deposit in the Series 2016-1 Collection Account during such Monthly Period and (C) the investment income on amounts on deposit in the Series 2016-1 Interest and Expense Account during such Monthly Period transferred to the Series 2016-1 Collection Account on such Payment Date pursuant to Section 2.1(b) over (ii) the amount withdrawn from the Series 2016-1 Collection Account during such Monthly Period pursuant to Section 2.2(a) and Section 2.4(c), plus, (b)(i) in the case of the Payment Date on June 18, 2018 so long as no Amortization Event with respect to the Series 2016-1 Notes has occurred prior to such Payment Date, the lesser of (x) any amounts on deposit in the Series 2016-1 Collection Account at the close of business on the last day of May 2018 that are attributable to Collections that were allocated to the Series 2016-1 Notes prior to May 1, 2018 and (y) the amount, if any, by which the Series 2016-1 Required Asset Amount on that Payment Date, calculated without taking into account any such amounts on deposit in the Series 2016-1 Collection Account and after giving effect to the application of the amounts available in accordance with Section 2.5(b)(v) to pay the Series 2016-1 Principal Payment Amount for that Payment Date, exceeds the Series 2016-1 Asset Amount on that Payment Date, or (ii) in the case of the first Payment Date following the occurrence of an Amortization Event with respect to the Series 2016-1 Notes, the amount, if any, by which the amount on deposit in the Series 2016-1 Collection Account at the close of business on


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the last day of the related Monthly Period was greater than the amount described in clause (a) above.
“Trigger Event” means the occurrence of any of the following events on any Payment Date:
(a) the Three-Month Weighted Average Loan Yield on such Payment Date is less than 38.00%;
(b) the Three-Month Weighted Average Excess Spread on such Payment Date is less than 10.00%; or
(c) the Three-Month Average Delinquency Ratio on such Payment Date is greater than 16.00%.
“Two-Month Average Delinquency Ratio” means, on any Payment Date, the average of the Delinquency Ratios as of the two Determination Dates immediately preceding such Payment Date.
“Two-Month Weighted Average Excess Spread” means, on any Payment Date, the average of the Weighted Average Excess Spreads as of the two Determination Dates immediately preceding such Payment Date.
“Warranty Liability” means, as of any day, the aggregate stated balance sheet fair value of all outstanding warrants exercisable for redeemable convertible preferred shares of OnDeck determined in accordance with GAAP.
“Weighted Average Excess Spread” means, as of any Determination Date, an amount equal to 12 times the percentage equivalent of a fraction:
(a) the numerator of which is the excess, if any, of
(i) the sum of:
(A) an amount equal to the product of (X) all Collections received during the related Monthly Period in respect of Daily Pay Loans that were not applied by the Servicer to reduce the Outstanding Principal Balances of such Daily Pay Loans in accordance with Section 2(a)(i) of the Servicing Agreement, including all recoveries with respect to Charged-Off Loans that were Daily Pay Loans (net of amounts, if any, retained by any third party collection agent) allocated to the Series 2016-1 Collection Account pursuant to Section 2.4(b) and (Y) the quotient of 21 divided by the number of Business Days in the related Monthly Period; and
(B) an amount equal to the sum, with respect to each weekday, of the product of (X) all Collections received during the related Monthly Period in respect of Weekly Pay Loans with Loan Payment Dates


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on such weekday that were not applied by the Servicer to reduce the Outstanding Principal Balances of such Weekly Pay Loans in accordance with Section 2(a)(i) of the Servicing Agreement, including all recoveries with respect to Charged-Off Loans that were Weekly Pay Loans with Loan Payment Dates on such weekday (net of amounts, if any, retained by any third party collection agent) allocated to the Series 2016-1 Collection Account pursuant to Section 2.4(b) and (Y) the quotient of 4.3333 divided by the number of Loan Payment Dates in respect of such Weekly Pay Loans occurring during the related Monthly Period;
over
(ii) the sum of:
(A) the Interest Payment for the Payment Date immediately succeeding such Determination Date;
(B) the sum of the Series 2016-1 Servicing Fee payable to the Servicer pursuant to Section 2.5(b)(ii) and the portion of the Series 2016-1 Backup Servicing Fee payable to the Backup Servicer pursuant to Section 2.5(b)(iii), in each case, on the Payment Date immediately succeeding such Determination Date;
(C) the aggregate amount of accrued and unpaid fees, expenses and indemnities due and payable to the Indenture Trustee and the Custodian pursuant to Section 2.5(b)(i) on the Payment Date immediately succeeding such Determination Date; and
(D) the product of (x) the daily average of the Series 2016-1 Charged-Off Loan Percentage with respect to each Business Day during the related Monthly Period and (y) the aggregate Outstanding Principal Balance of all Pooled Loans that became Charged-Off Loans during such Monthly Period;
and
(b) the denominator of which is the average daily Series 2016-1 Asset Amount during such Monthly Period.
“Weighted Average Loan Yield” means, as of any Determination Date, the quotient, expressed as a percentage, obtained by dividing (a) the sum, for all Pooled Loans (excluding 30 MPF Pooled Loans), of the product of (i) the Loan Yield for each Pooled Loan (excluding 30 MPF Pooled Loans) multiplied by (ii) the Outstanding Principal Balance of such Loan as of such Determination Date, by (b) the Adjusted Pool Outstanding Principal Balance as of such Determination Date.


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“Withdrawal Request” means a written request, substantially in the form of Exhibit E, from an Authorized Officer of the Issuer, requesting the withdrawal of an amount set forth therein from the Series 2016-1 Collection Account and certifying that no Series 2016-1 Asset Amount Deficiency or other Amortization Event with respect to the Series 2016-1 Notes will result from such withdrawal or will be existing immediately thereafter.
ARTICLE II
    

ARTICLE 5 OF THE BASE INDENTURE
Sections 5.1 through 5.3 of the Base Indenture and each other Section of Article 5 of the Indenture relating to another Series shall read in their entirety as provided in the Base Indenture or any applicable Indenture Supplement. Article 5 of the Indenture (except for Sections 5.1 through 5.3 thereof and any portion thereof relating to another Series) shall read in its entirety as follows and shall be exclusively applicable to the Series 2016-1 Notes:
Section 2.1     Establishment of Series 2016-1 Accounts.
(a)     The Issuer shall establish and maintain in the name of the Indenture Trustee for the benefit of the Series 2016-1 Noteholders five securities accounts: (i) the Series 2016-1 Collection Account (such account, the “Series 2016-1 Collection Account”); (ii) the Series 2016-1 Interest and Expense Account (such account, the “Series 2016-1 Interest and Expense Account”); (iii) the Series 2016-1 Settlement Account (such account, the “Series 2016-1 Settlement Account”); (iv) the Series 2016-1 Reserve Account (such account, the “Series 2016-1 Reserve Account”) and (v) the Series 2016-1 Note Distribution Account (such account, the “Series 2016-1 Note Distribution Account” and, together with the Series 2016-1 Collection Account, the Series 2016-1 Interest and Expense Account, the Series 2016-1 Settlement Account and the Series 2016-1 Reserve Account, the “Series 2016-1 Series Accounts”). Each Series 2016-1 Account shall bear a designation indicating that the funds deposited therein are held for the benefit of the Series 2016-1 Noteholders. Each Series 2016-1 Series Account shall be an Eligible Account. If a Series 2016-1 Series Account is at any time no longer an Eligible Account, the Issuer shall, within ten Business Days of obtaining knowledge that such Series 2016-1 Series Account is no longer an Eligible Account, establish a new Series 2016-1 Series Account that is an Eligible Account. If a new Series 2016-1 Series Account is established, the Issuer shall instruct the Indenture Trustee in writing to transfer all cash and investments from the non-qualifying Series 2016-1 Series Account into the new Series 2016-1 Series Account. Initially, each of the Series 2016-1 Series Accounts will be established with Deutsche Bank Trust Company Americas.
(b)     The Issuer may instruct (by standing instructions or otherwise) the institution maintaining each of the Series 2016-1 Collection Account, the Series 2016-1 Interest and Expense Account and the Series 2016-1 Reserve Account to invest funds on deposit in such Series 2016-1 Series Account from time to time in Permitted Investments; provided, however, that (x) any such investment in the Series 2016-1 Collection Account shall mature, or be payable


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or redeemable upon demand of the holder thereof, not later than (1) in the case of any such investment made during the Series 2016-1 Revolving Period, the Business Day following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in the Series 2016-1 Collection Account) or (2) in the case of any such investment made during the Series 2016-1 Amortization Period, the Business Day prior to the first Payment Date following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in the Series 2016-1 Collection Account), unless any such Permitted Investment is held with the Indenture Trustee, then such investment may mature on such Payment Date so long as such funds shall be available for withdrawal on or prior to such Payment Date and (y) any such investment in the Series 2016-1 Interest and Expense Account and the Series 2016-1 Reserve Account shall mature, or be payable or redeemable upon demand of the holder thereof, not later than the Business Day prior to the first Payment Date following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in the Series 2016-1 Interest and Expense Account or the Series 2016-1 Reserve Account), unless any such Permitted Investment is held with the Indenture Trustee, then such investment may mature on such Payment Date so long as such funds shall be available for withdrawal on or prior to such Payment Date. The Issuer shall not direct the Indenture Trustee to dispose of (or permit the disposal of) any Permitted Investments prior to the maturity thereof to the extent such disposal would result in a loss of the initial purchase price of such Permitted Investment. Funds on deposit in the Series 2016-1 Settlement Account and the Series 2016-1 Note Distribution Account shall remain uninvested. In the absence of written investment instructions hereunder, funds on deposit in the Series 2016-1 Collection Account, the Series 2016-1 Interest and Expense Account and the Series 2016-1 Reserve Account shall remain uninvested. On each Payment Date, all interest and other investment earnings (net of losses and investment expenses) on funds deposited in the Series 2016-1 Interest and Expense Account shall be deposited in the Series 2016-1 Collection Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2016-1 Collection Account and the Series 2016-1 Reserve Account shall be deemed to be on deposit therein and available for distribution.
(c)     In order to secure and provide for the repayment and payment of the Issuer Obligations with respect to the Series 2016-1 Notes, the Issuer hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Indenture Trustee, for the benefit of the Series 2016-1 Noteholders, all of the Issuer’s right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2016-1 Series Accounts, including any security entitlement thereto; (ii) all funds on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2016-1 Series Accounts or the funds on deposit therein from time to time; (iv) all investments made at any time and from time to time with monies in the Series 2016-1 Series Accounts, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (v) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2016-1 Series Accounts, the funds on deposit therein from time to time or the investments made with such funds; and (vi) all proceeds of any and all of the foregoing, including cash (the items in the


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foregoing clauses (i) through (vi) are referred to, collectively, as the “Series 2016-1 Series Account Collateral”).
Section 2.2     Series 2016-1 Reserve Account
(a)     On any Business Day on which there is a Series 2016-1 Reserve Account Deficiency, the Issuer shall direct the Indenture Trustee in writing by 1:00 P.M., New York City time, on such Business Day to withdraw from the Series 2016-1 Collection Account and deposit in the Series 2016-1 Reserve Account an amount equal to the lesser of such Series 2016-1 Reserve Account Deficiency and the amount then on deposit in the Series 2016-1 Collection Account.
(b)     If there is a Series 2016-1 Reserve Account Surplus on any Payment Date, the Issuer may direct the Indenture Trustee to withdraw from the Series 2016-1 Reserve Account and pay to the Issuer, and the Indenture Trustee shall withdraw from the Series 2016-1 Reserve Account and pay to the Issuer, the lesser of (i) such Series 2016-1 Reserve Account Surplus on such Payment Date and (ii) the Series 2016-1 Reserve Account Amount on such Payment Date so long as, after giving effect to such withdrawal, no Series 2016-1 Asset Amount Deficiency would result therefrom.
(c) (i) If the Issuer determines that the aggregate amount distributable from the Series 2016-1 Settlement Account pursuant to paragraphs (i) through (iv) of Section 2.5(b) on any Payment Date exceeds the Total Available Collections Amount for such Payment Date (the “Deficiency”), the Issuer shall direct the Indenture Trustee in writing at or before 2:00 P.M., New York City time, on the Business Day immediately preceding such Payment Date, and the Indenture Trustee shall, in accordance with such direction, by 11:00 A.M., New York City time, on such Payment Date, withdraw from the Series 2016-1 Reserve Account and deposit in the Series 2016-1 Settlement Account an amount equal to the lesser of (x) the Deficiency and (y) the Series 2016-1 Reserve Account Amount.
(ii) If the Issuer determines that the amount to be deposited in the Series 2016-1 Note Distribution Account pursuant to paragraph (v) of Section 2.5(b) and paid to the Series 2016-1 Noteholders pursuant to Section 2.7 on the Legal Final Payment Date is less than the Series 2016-1 Invested Amount, the Issuer shall direct the Indenture Trustee in writing at or before Noon, New York City time, on the Business Day immediately preceding the Legal Final Payment Date, and the Indenture Trustee shall, in accordance with such direction, by 11:00 A.M., New York City time, on such Payment Date, withdraw from the Series 2016-1 Reserve Account and deposit in the Series 2016-1 Note Distribution Account an amount equal to the lesser of such insufficiency and the Series 2016-1 Reserve Account Amount (after giving effect to any withdrawal therefrom pursuant to Section 2.2(c)(i) on such Payment Date).
(d) If the Issuer determines during the Series 2016-1 Amortization Period that the sum of (i) the Total Available Amount for a Payment Date and (ii) the Series 2016-1 Reserve Account Amount on such Payment Date is greater than or equal to the sum of (x) the Interest Payment for such Payment Date, (y) all fees, expenses and indemnities payable to the Indenture


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Trustee, the Custodian, the Servicer and the Backup Servicer pursuant to Section 2.5(b) on such Payment Date and (z) the Series 2016-1 Invested Amount (before any payments of principal of the Series 2016-1 Notes on such Payment Date), the Issuer shall direct the Indenture Trustee in writing at or before 2:00 P.M., New York City time, on the Business Day immediately preceding such Payment Date, and the Indenture Trustee shall, in accordance with such direction, by 11:00 A.M., New York City time, on such Payment Date, withdraw from the Series 2016-1 Reserve Account and deposit in the Series 2016-1 Settlement Account an amount equal to the Series 2016-1 Reserve Account Amount on such Payment Date.
(e) On any date on or after the Series 2016-1 Termination Date, the Indenture Trustee, acting in accordance with the written instructions of the Issuer shall withdraw from the Series 2016-1 Reserve Account all amounts on deposit therein and pay them to the Issuer.
Section 2.3     Indenture Trustee As Securities Intermediary.
(a) The Indenture Trustee or other Person holding a Series 2016-1 Series Account shall be the “Securities Intermediary”. If the Securities Intermediary in respect of any Series 2016-1 Series Account is not the Indenture Trustee, the Issuer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 2.3.
(b) The Securities Intermediary agrees that:
(i)     The Series 2016-1 Series Accounts are accounts to which “financial assets” within the meaning of Section 8-102(a)(9) (“Financial Assets”) of the UCC in effect in the State of New York (the “New York UCC”) will be credited;
(ii)     All securities or other property underlying any Financial Assets credited to any Series 2016-1 Series Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any Series 2016-1 Series Account be registered in the name of the Issuer, payable to the order of the Issuer or specially endorsed to the Issuer;
(iii)     All property delivered to the Securities Intermediary pursuant to this Indenture Supplement will be promptly credited to the appropriate Series 2016-1 Series Account;
(iv)     Each item of property (whether investment property, security, instrument or cash) credited to a Series 2016-1 Series Account shall be treated as a Financial Asset;
(v)     If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial


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Asset relating to the Series 2016-1 Series Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the Issuer;
(vi)     The Series 2016-1 Series Accounts shall be governed by the laws of the State of New York, regardless of any provision of any other agreement. For purposes of the UCC, New York shall be deemed to the Securities Intermediary’s jurisdiction and the Series 2016-1 Series Accounts (as well as the “securities entitlements” (as defined in Section 8-102(a)(17) of the New York UCC) related thereto) shall be governed by the laws of the State of New York;
(vii)     The Securities Intermediary has not entered into, and until termination of this Indenture Supplement, will not enter into, any agreement with any other Person relating to the Series 2016-1 Series Accounts and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Indenture Supplement will not enter into, any agreement with the Issuer purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 2.3(b)(v) of this Indenture Supplement; and
(viii)     Except for the claims and interest of the Indenture Trustee and the Issuer in the Series 2016-1 Series Accounts, the Securities Intermediary knows of no claim to, or interest, in the Series 2016-1 Series Accounts or in any Financial Asset credited thereto. If the Securities Intermediary has actual knowledge of the assertion by any other person of any lien, encumbrance, or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Series 2016-1 Series Account or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee and the Issuer thereof.


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(c) The Indenture Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Series 2016-1 Series Accounts and in all proceeds thereof, and shall be the only person authorized to originate entitlement orders in respect of the Series 2016-1 Series Accounts.
(d) The Securities Intermediary will promptly send copies of all statements for each of the Series 2016-1 Series Accounts, which statements shall reflect any financial assets credited thereto, simultaneously to each of the Issuer and the Indenture Trustee at the addresses set forth in Section 13.4 of the Base Indenture.
(e) Notwithstanding anything in this Section 2.3 to the contrary, with respect to any Series 2016-1 Series Account and any credit balances not constituting Financial Assets credited thereto, the Securities Intermediary shall be acting as a bank (as defined in Section 9-102(a)(8) of the New York UCC) if such Series 2016-1 Series Account is deemed not to constitute a securities account.
Section 2.4     Allocations with Respect to the Series 2016-1 Notes.
(a)     On the Series 2016-1 Closing Date, the Issuer shall cause $247,485,378.81, the net proceeds from the sale of the Series 2016-1 Notes, to be deposited into the Series 2016-1 Collection Account and the Indenture Trustee shall, at the written direction of the Issuer, apply such net proceeds as follows: (i) deposit $1,648,351.65 in the Series 2016-1 Reserve Account and (ii) pay the remainder to or at the written direction of the Seller in satisfaction of the Issuer’s payment obligation (as of the Series 2016-1 Closing Date) to the Seller under Section 2.01(c) of the Loan Purchase Agreement.
(b)     Prior to 3:00 P.M., New York City time, on each Deposit Date during a Monthly Period, the Issuer shall direct in writing the Indenture Trustee to allocate to the Series 2016-1 Noteholders and deposit in the Series 2016-1 Collection Account an amount equal to the product of the Series 2016-1 Invested Percentage on such Deposit Date and the Collections deposited into the Collection Account on such Deposit Date and thereafter to deposit into the Series 2016-1 Interest and Expense Account the lesser of such amount and the amount necessary to cause the aggregate amount so deposited into the Series 2016-1 Interest and Expense Account during such Monthly Period to equal the Interest and Expense Amount for the related Payment Date.
(c)     During the Series 2016-1 Revolving Period, the Issuer may direct the Indenture Trustee by delivering a Withdrawal Request to the Indenture Trustee by 1:00 P.M., New York City time, on any Business Day to withdraw amounts then on deposit in the Series 2016-1 Collection Account (after giving effect to any withdrawal therefrom on such Business Day pursuant to Section 2.2(a)) for either of the following purposes:
(i)     if such Business Day is a Transfer Date, to fund all or a portion of the purchase price of Loans being acquired by the Issuer on such Transfer Date pursuant to the Loan Purchase Agreement; or


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(ii)     to reduce the Invested Amount of any other Series of Outstanding Notes;
provided, however, that such application of funds may only be made if no Series 2016-1 Asset Amount Deficiency or other Amortization Event with respect to the Series 2016-1 Notes would result therefrom or exist immediately thereafter.
(d)     The Issuer may direct the Indenture Trustee in writing to allocate to the Series 2016-1 Noteholders and deposit in the Series 2016-1 Note Distribution Account on any Payment Date that is also the Prepayment Date any amounts allocated to another Series of Notes that are available under the applicable Indenture Supplement that the Issuer has elected to apply to pay a portion of the Series 2016-1 Prepayment Amount on such Prepayment Date.
Section 2.5     Monthly Application of Total Available Amount.
(a)     Prior to 2:00 P.M., New York City time, on each Monthly Reporting Date, the Issuer shall direct the Indenture Trustee in writing to (i) withdraw from the Series 2016-1 Interest and Expense Account and deposit in the Series 2016-1 Settlement Account, on the immediately succeeding Payment Date, the Interest and Expense Amount for such Payment Date, and (ii) withdraw from the Series 2016-1 Collection Account and deposit in the Series 2016-1 Settlement Account, on the immediately succeeding Payment Date, the Total Available Collections Amount (less the Interest and Expense Amount for such Payment Date) for such Payment Date.
(b)     On each Payment Date, based solely on the information contained in the Monthly Settlement Statement with respect to Series 2016-1 Notes, the Indenture Trustee shall apply the Total Available Amount for such Payment Date on deposit in the Series 2016-1 Settlement Account in the following order of priority:
(i)     first, on a pro rata basis, to the extent of the Total Available Amount, (A) to the Indenture Trustee, an amount equal to the sum of (1) all accrued and unpaid fees, expenses and indemnities then due to it that relate directly to the Series 2016-1 Notes and (2) the Series 2016-1 Percentage on the immediately preceding Payment Date of all accrued and unpaid fees, expenses and indemnities then due to it that do not relate directly to any Series of Notes, but, so long as no Event of Default has occurred, and the maturity of the Series 2016-1 Notes has not been accelerated, only to the extent that, after giving effect thereto, the Annual Indenture Trustee Fee Limit for such Payment Date shall have not been exceeded, and (B) to the Custodian, an amount equal to the sum of (1) any accrued and unpaid fees, expenses and indemnities then due to it that relate directly to the Series 2016-1 Notes and (2) the Series 2016-1 Percentage on the immediately preceding Payment Date of any accrued and unpaid fees, expenses and indemnities then due to it that do not relate directly to any Series of Notes, but, so long as no Event of Default has occurred, and the maturity of the Series 2016-1 Notes has not been accelerated, only to the extent that after giving


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effect thereto the Annual Custodian Fee Limit for such Payment Date shall have not been exceeded;
(ii)     second, to the Servicer, to the extent of the Total Available Amount (as such amount has been reduced by the distribution described in clause (i) above), an amount equal to the Series 2016-1 Servicing Fee for the related Monthly Period;
(iii)     third, to the Backup Servicer, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) and (ii) above), an amount equal to the Series 2016-1 Backup Servicing Fee for such Payment Date but only to the extent that after giving effect thereto the Annual Backup Servicer Fee Limit for such Payment Date shall have not been exceeded;
(iv)     fourth, to the Series 2016-1 Note Distribution Account, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) through (iii) above), an amount equal to the Interest Payment for such Payment Date;
(v)     fifth, (A) on any Payment Date immediately succeeding a Monthly Period falling in the Series 2016-1 Revolving Period, to the Series 2016-1 Collection Account, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) through (iv) above), an amount equal to the Series 2016-1 Asset Amount Deficiency, if any, on such Payment Date, and (B) on the earlier of (x) June 18, 2018 or (y) the first Payment Date following the occurrence of an Amortization Event with respect to the Series 2016-1 Notes, to the Series 2016-1 Note Distribution Account, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) through (iv) above), an amount equal to the Series 2016-1 Principal Payment Amount for such Payment Date;
(vi)     sixth, to the Series 2016-1 Reserve Account, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) through (v) above), an amount equal to the Series 2016-1 Reserve Account Deficiency, if any, on such Payment Date;
(vii)     seventh, on a pro rata basis, to the extent of the Total Available Amount (as such amount has been reduced by the distributions described in clauses (i) through (vi) above), to (A) the Indenture Trustee, an amount equal to the fees, expenses and indemnities not otherwise paid to the Indenture Trustee pursuant to clause (i) above due to the operation of the Annual Indenture Trustee Fee Limit, (B) the Custodian, an amount equal to the fees, expenses and indemnities not otherwise paid to the Custodian pursuant to clause (i) above due to the operation of the Annual Custodian Fee Limit and (C) the Backup Servicer, any portion of the Series 2016-1 Backup Servicing Fee for such Payment Date


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not otherwise paid to the Backup Servicer pursuant to clause (iii) above due to the operation of the Annual Backup Servicer Fee Limit; and
(viii)     eight, to, or at the written direction of, the Issuer, an amount equal to the balance remaining in the Series 2016-1 Settlement Account.
Section 2.6     Distribution of Interest Payments.
On each Payment Date, based solely on the information contained in the Monthly Settlement Statement with respect to the Series 2016-1 Notes, the Indenture Trustee shall, in accordance with Section 6.1 of the Base Indenture, distribute from the Series 2016-1 Note Distribution Account the Interest Payment for such Payment Date in the following order of priority to the extent of the amount deposited in the Series 2016-1 Note Distribution Account for the payment of interest pursuant to Section 2.5(b)(iv) on such Payment Date:
(a)     pro rata to each Class A Noteholder, an amount equal to the Class A Interest Payment for such Payment Date; and
(b)     pro rata to each Class B Noteholder, an amount equal to the Class B Interest Payment for such Payment Date.
Section 2.7     Distributions of Principal Payments.
(a)     The principal amount of the Series 2016-1 Notes shall be due and payable on the Legal Final Payment Date.
(b)     On the earlier of (x) June 18, 2018 or (y) the first Payment Date following the date of the occurrence of an Amortization Event with respect to the Series 2016-1 Notes and on each Payment Date thereafter, based solely on the information contained in the Monthly Settlement Statement with respect to the Series 2016-1 Notes, the Indenture Trustee shall, in accordance with Section 6.1 of the Base Indenture, distribute from the Series 2016-1 Note Distribution Account the amount deposited therein pursuant to Section 2.5(b)(v) and any amounts withdrawn from the Series 2016-1 Reserve Account and deposited therein pursuant to Section 2.2(c)(ii) on such Payment Date in the following order of priority:
(i)     pro rata to each Class A Noteholder until the Class A Invested Amount is reduced to zero; and
(ii)     pro rata to each Class B Noteholder until the Class B Invested Amount is reduced to zero.
(c)     The Indenture Trustee shall notify the Person in whose name a Series 2016-1 Note is registered at the close of business on the Record Date preceding the Payment Date on which the Issuer expects that the final installment of principal of and interest on such Series 2016-1 Note will be paid. Such notice shall be made at the expense of the Issuer and shall be mailed within three Business Days of receipt of a Monthly Settlement Statement indicating that such final payment will be made and shall specify that such final installment will be payable


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only upon presentation and surrender of such Series 2016-1 Note and shall specify the place where such Series 2016-1 Note may be presented and surrendered for payment of such installment. Notices in connection with payments of Series 2016-1 Notes shall be (i) transmitted by facsimile to Series 2016-1 Noteholders holding Global Notes and (ii) sent by registered mail to Series 2016-1 Noteholders holding Definitive Notes and shall specify that such final installment will be payable only upon presentation and surrender of such Series 2016-1 Note and shall specify the place where such Series 2016-1 Note may be presented and surrendered for payment of such installment.
ARTICLE III
AMORTIZATION EVENTS; SERVICER DEFAULTS
Section 3.1     Amortization Events. If any one of the following events shall occur with respect to the Series 2016-1 Notes:
(a)     any Trigger Event shall occur;
(b)     a Series 2016-1 Reserve Account Deficiency shall occur and continue for at least three Business Days;
(c)     a Series 2016-1 Asset Amount Deficiency shall occur and continue for at least three Business Days;
(d)     an Insolvency Event shall occur with respect to the Seller or the Servicer;
(e)     any Servicer Default shall occur;    
(f)     any Event of Default with respect to the Series 2016-1 Notes shall occur;
(g)     the aggregate amount of cash and Permitted Investments on deposit in the Series 2016-1 Collection Account, the Series 2016-1 Reserve Account and any other Series Accounts on any Payment Date, after giving effect to all deposits and withdrawals to be made therein or therefrom on such Payment Date in accordance with this Indenture Supplement or the applicable Indenture Supplement, shall exceed the Pool Outstanding Principal Balance on such Payment Date;
(h)     failure on the part of the Issuer (i) to make any payment or deposit required by the terms of the Base Indenture or this Indenture Supplement which failure continues unremedied for at least five Business Days after the date such payment or deposit is required to be made or (ii) duly to observe or perform any covenants or agreements of the Issuer set forth in the Base Indenture or this Indenture Supplement, which failure materially and adversely affects the interests of the Series 2016-1 Noteholders, and which failure shall continue or not be cured for a period of thirty days after there shall have been given to the Issuer by the Indenture Trustee or the Issuer and the Indenture Trustee by a Majority in Interest, written notice specifying such default and requiring it to be remedied;


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(i)     any representation or warranty made by the Issuer in the Base Indenture or this Indenture Supplement, or any information required to be delivered by the Issuer thereunder or hereunder to the Indenture Trustee shall prove to have been incorrect when made or when delivered, which incorrect representation or warranty or information materially and adversely affects the interests of the Series 2016-1 Noteholders and continues to be incorrect for a period of thirty days after there shall have been given to the Issuer by the Indenture Trustee or the Issuer and the Indenture Trustee by a Majority in Interest, written notice thereof;
(j)     failure on the part of the Seller (i) to make any payment required by the terms of the Loan Purchase Agreement (or within the applicable grace period which shall not exceed five Business Days after the date such payment is required to be made) or (ii) duly to observe or perform any covenants or agreements of the Seller in the Loan Purchase Agreement, which failure materially and adversely affects the interests of the Series 2016-1 Noteholders, and which failure shall continue unremedied for a period of thirty days after there shall have been given to the Seller by the Indenture Trustee or the Seller and the Indenture Trustee by a Majority in Interest, written notice specifying such failure and requiring it to be remedied;
(k)    any representation or warranty made by the Seller in the Loan Purchase Agreement, or any information required to be delivered by the Seller thereunder to the Issuer or the Indenture Trustee shall prove to have been incorrect when made or when delivered, which incorrect representation or warranty or information materially and adversely affects the interests of the Series 2016-1 Noteholders and continues to be incorrect for a period of thirty days after there shall have been given to the Seller by the Indenture Trustee or the Seller and the Indenture Trustee by a Majority in Interest, written notice thereof; or
(l)     any of the Transaction Documents shall cease, for any reason, to be in full force and effect, other than in accordance with its terms;
then, in the case of any event described in clause (h) through (l) of this Section 3.1, an Amortization Event will be deemed to have occurred with respect to the Series 2016-1 Notes only, if after the applicable grace period, either the Indenture Trustee or the Majority in Interest, declare that an Amortization Event has occurred with respect to the Series 2016-1 Notes. In the case of any event described in clauses (a) through (g) of this Section 3.1, an Amortization Event with respect to the Series 2016-1 Notes will be deemed to have occurred without notice or other action on the part of the Indenture Trustee or the Series 2016-1 Noteholders.
Section 3.2     Servicer Defaults. The occurrence of any of the following events shall constitute an “Additional Servicer Default” with respect to the Series 2016-1 Notes:
(a)     Consolidated Liquidity as of the last day of any Fiscal Quarter is less than $30,000,000;
(b)     Tangible Net Worth as of the last day of any Fiscal Quarter is less than $100,000,000;


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(c)     The Leverage Ratio as of the last day of any Fiscal Quarter is greater than 8:1; or
(d)     Unrestricted Cash and Cash Equivalents of OnDeck and its Subsidiaries as of the last day of Fiscal Quarter is less than $20,000,000.
ARTICLE IV
OPTIONAL PREPAYMENT
The Issuer shall have the option to prepay the Series 2016-1 Notes in whole but not in part, on any Payment Date occurring on or after the April 2018 Payment Date. The Issuer shall give the Indenture Trustee at least three Business Days’ prior written notice of the Payment Date on which the Issuer intends to exercise such option to prepay (the “Prepayment Date”), and the Indenture Trustee shall (at the direction and expense of the Issuer) give the Series 2016-1 Noteholders written notice of the Prepayment Date within one Business Day of its receipt of such notice. The prepayment price for the Series 2016-1 Notes (the “Series 2016-1 Prepayment Amount”) shall equal the Series 2016-1 Invested Amount (determined after giving effect to any payments of principal and interest on such Payment Date), plus accrued and unpaid interest thereon. Not later than 11:00 A.M., New York City time, on such Prepayment Date, the Issuer shall deposit, or cause to be deposited pursuant to Section 2.4(d) or otherwise, in the Series 2016-1 Note Distribution Account an amount sufficient together with the funds deposited into the Series 2016-1 Note Distribution Account pursuant to Section 2.5(b)(iv) and Section 2.5(b)(v) on such Prepayment Date to pay the Series 2016-1 Prepayment Amount in immediately available funds. The funds deposited into the Series 2016-1 Note Distribution Account will be paid by the Indenture Trustee to the Series 2016-1 Noteholders on such Prepayment Date.
ARTICLE V

SERVICING FEE
Section 5.1     Servicing Fee.
A portion of the Servicing Fee payable to the Servicer pursuant to the Servicing Agreement shall be payable to the Servicer on each Payment Date for the related Monthly Period in an amount (the “Series 2016-1 Servicing Fee”) equal to the product of (a) one-twelfth of 3.00% (the “Series 2016-1 Servicing Fee Percentage”) times (b) the daily average of the Series 2016-1 Serviced Portfolio Balance on each day during such Monthly Period; provided, however, that, the Series 2016-1 Servicing Fee on the first Payment Date following the Series 2016-1 Closing Date will equal the product of (i) 1/360 of the Series 2016-1 Servicing Fee Percentage, (ii) the number of days in the period from and including the Series 2016-1 Closing Date to and including May 30, 2016 and (iii) the daily average of the Series 2016-1 Serviced Portfolio Balance on each day during the period described in clause (ii). The Series 2016-1 Servicing Fee shall be payable to the Servicer on each Payment Date pursuant to Section 2.5(b)(ii).


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ARTICLE VI

FORM OF SERIES 2016-1 NOTES
Section 6.1     Initial Issuance of Series 2016-1 Notes.
The Series 2016-1 Notes are being offered and sold by the Issuer pursuant to a Purchase Agreement, dated April 27, 2016, among the Issuer, OnDeck and Deutsche Bank Securities Inc. The Series 2016-1 Notes will be reoffered and resold initially only to (1) qualified institutional buyers (as defined in Rule 144A) (“QIBs”) in reliance on Rule 144A and (2) outside the United States, to Persons other than U.S. Persons (as defined in Regulation S of the Securities Act) in accordance with Rule 903 of Regulation S.
Section 6.2     Restricted Global Notes.
Each Class of the Series 2016-1 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of a Global Note in fully registered form, without coupons, substantially in the form set forth with respect to the Class A Notes in Exhibit A‑1 and with respect to the Class B Notes in Exhibit B-1, in each case registered in the name of Cede & Co., as nominee of DTC, and deposited with the DTC Custodian (collectively, the “Restricted Global Notes”). The initial principal amount of the Restricted Global Notes may from time to time be increased or decreased by adjustments made on the records of the DTC Custodian in connection with a corresponding decrease or increase in the initial principal amount of the corresponding Class of Temporary Global Notes or the Permanent Global Notes, as hereinafter provided.
Section 6.3     Temporary Global Notes and Permanent Global Notes.
Each Class of the Series 2016-1 Notes offered and sold on the Series 2016-1 Closing Date in reliance upon Regulation S will be issued in the form of a Global Note in fully registered form, without coupons, substantially in the form set forth with respect to the Class A Notes in Exhibit A-2 and with respect to the Class B Notes in Exhibit B-2, in each case which shall be deposited on behalf of the purchasers of the Series 2016-1 Notes represented thereby with the DTC Custodian, and registered in the name of a nominee of DTC for the account of Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”) or for Clearstream Banking, société anonyme (“Clearstream”), duly executed by the Issuer and authenticated by the Indenture Trustee in the manner set forth in Section 2.3 of the Base Indenture. Until such time as the Restricted Period shall have terminated, such Series 2016-1 Notes shall be referred to herein collectively as the “Temporary Global Notes”. After such time as the Restricted Period shall have terminated with respect to any Series 2016-1 Notes, such Class A Notes or Class B Notes, as applicable, as to which the Indenture Trustee has received from Euroclear or Clearstream, as the case may be, a certificate substantially in the form of Exhibit C-4 to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit C-5, shall be exchanged, in whole or in part, for interests in a permanent global note in registered form without interest coupons, with respect to the Class A Notes, substantially in the form set forth in Exhibit A-3 and with respect to the Class B Notes, substantially in the form set forth in


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Exhibit B-3 as hereinafter provided (collectively, the “Permanent Global Notes”). The principal amount of the Temporary Global Notes or the Permanent Global Notes may from time to time be increased or decreased by adjustments made on the records of the DTC Custodian in connection with a corresponding decrease or increase of principal amount of the corresponding Class of Restricted Global Notes, as hereinafter provided.
Section 6.4     Definitive Notes.
No Series 2016-1 Note Owner will receive a Definitive Note representing such Series 2016-1 Note Owner’s interest in the Series 2016-1 Notes other than in accordance with Section 2.11 of the Base Indenture.
Section 6.5     Transfer Restrictions.
(a)     A Series 2016-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, and no such transfer to any such other Person may be registered; provided, however, that this Section 6.5(a) shall not prohibit any transfer of a Series 2016-1 Note that is issued in exchange for a Series 2016-1 Global Note but is not itself a Series 2016-1 Global Note and shall not prohibit any transfer of a beneficial interest in a Series 2016-1 Global Note effected in accordance with the other provisions of this Section 6.5.
(b)     The transfer by an owner of a beneficial interest in a Restricted Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the same Restricted Global Note shall be made upon the deemed representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c)     If the owner of a beneficial interest in a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in a Temporary Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Temporary Global Note, such exchange or transfer may be effected, subject to the applicable rules and procedures of DTC, Euroclear and Clearstream (the “Applicable Procedures”), only in accordance with the provisions of this Section 6.5(c). Upon receipt by the Transfer Agent and Registrar, at the office of the Transfer Agent and Registrar, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Transfer Agent and Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Temporary Global Note, in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and


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the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-1 given by the holder of such beneficial interest in such Restricted Global Note, the Transfer Agent and Registrar, if it is not the Indenture Trustee, shall instruct the DTC Custodian to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Temporary Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Temporary Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such exchange or transfer.
(d)     If the owner of a beneficial interest in a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in the Permanent Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Permanent Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 6.5(d). Upon receipt by the Transfer Agent and Registrar, at the office of the Transfer Agent and Registrar, of (A) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Transfer Agent and Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Permanent Global Note in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-2 given by the holder of such beneficial interest in such Restricted Global Note, the Transfer Agent and Registrar, if it is not the Indenture Trustee, shall instruct the DTC Custodian to reduce the principal amount of such Restricted Global Note, and to increase the principal amount of the Permanent Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Permanent Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such exchange or transfer.
(e)     If the owner of a beneficial interest in a Temporary Global Note or a Permanent Global Note wishes at any time to exchange its interest in such Temporary Global Note or such Permanent Global Note for an interest in the Restricted Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 6.5(e). Upon receipt by the Transfer Agent and Registrar, at the office of the Transfer Agent and Registrar, of


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(i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Transfer Agent and Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted Global Note in a principal amount equal to that of the beneficial interest in such Temporary Global Note or such Permanent Global Note, as the case may be, to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) with respect to a transfer of a beneficial interest in such Temporary Global Note (but not such Permanent Global Note), a certificate in substantially the form set forth in Exhibit C-3 given by the holder of such beneficial interest in such Temporary Global Note, the Transfer Agent and Registrar, if it is not the Indenture Trustee, shall instruct the DTC Custodian to reduce the principal amount of such Temporary Global Note or such Permanent Global Note, as the case may be, and to increase the principal amount of the Restricted Global Note, by the principal amount of the beneficial interest in such Temporary Global Note or such Permanent Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Restricted Global Note having a principal amount equal to the amount by which the principal amount of such Temporary Global Note or such Permanent Global Note, as the case may be, was reduced upon such exchange or transfer.
(f)     In the event that a Series 2016-1 Global Note or any portion thereof is exchanged for Series 2016-1 Notes other than Series 2016-1 Global Notes, such other Series 2016-1 Notes may in turn be exchanged (upon transfer or otherwise) for Series 2016-1 Notes that are not Series 2016-1 Global Notes or for a beneficial interest in a Series 2016-1 Global Note (if any is then outstanding) only in accordance with such procedures, which shall be substantially consistent with the provisions of Sections 6.5(a) through Section 6.5(e) and Section 6.5(g) (including the certification requirement intended to ensure that transfers and exchanges of beneficial interests in a Series 2016-1 Global Note comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and any Applicable Procedures, as may be adopted from time to time by the Issuer and the Transfer Agent and Registrar.
(g)     Until the termination of the Restricted Period, interests in the Temporary Global Notes may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream; provided that this Section 6.5(g) shall not prohibit any transfer in accordance with Section 6.5(e). After the expiration of the Restricted Period, interests in the Permanent Global Notes may be transferred without requiring any certifications.
(h)     The Series 2016-1 Notes shall bear the following legends to the extent indicated:
(i)     The Restricted Global Notes shall bear the following legend:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES


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LAWS. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE ONLY (A) TO ONDECK ASSET SECURITIZATION TRUST II LLC (THE “ISSUER”), (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A (A “QIB”) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE ISSUER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E), TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT.
BY YOUR ACQUISITION OF THIS NOTE OR ANY INTEREST HEREIN, YOU SHALL BE DEEMED TO REPRESENT AND WARRANT THAT YOU ARE NOT ACQUIRING OR HOLDING AN INTEREST IN THIS NOTE WITH THE ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY THAT IS DEEMED TO HOLD THE “ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN (WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA), OR (IV) A GOVERNMENTAL, NON-U.S., OR CHURCH PLAN WHICH IS SUBJECT TO OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) (EACH OF (I)-(IV) REFERRED TO AS A “PLAN”), OR (II) THE PLAN’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY INTEREST HEREIN WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 (c)(1)(A)-(C) OF THE CODE OR A SIMILAR VIOLATION OF ANY APPLICABLE SIMILAR LAW.”
(ii)     The Temporary Global Notes shall bear the following legend:

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE


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UNITED STATES. UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE NOTES (THE “RESTRICTED PERIOD”) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES AND OUTSIDE OF THE UNITED STATES (THE “OFFERING”), THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF ONDECK ASSET SECURITIZATION TRUST II LLC (THE “ISSUER”) THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR (3) TO THE ISSUER.
BY YOUR ACQUISITION OF THIS NOTE OR ANY INTEREST HEREIN, YOU SHALL BE DEEMED TO REPRESENT AND WARRANT THAT YOU ARE NOT ACQUIRING OR HOLDING AN INTEREST IN THIS NOTE WITH THE ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” (AS DEFINED IN SECTION 4975(c)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY THAT IS DEEMED TO HOLD THE “ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN (WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA), OR (IV) A GOVERNMENTAL, NON-U.S. OR CHURCH PLAN WHICH IS SUBJECT TO OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) (EACH OF (I)-(IV) REFERRED TO AS A “PLAN”), OR (II) THE PLAN’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY INTEREST HEREIN WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975(c)(1)(A)-(C) OF THE CODE OR A SIMILAR VIOLATION OF ANY APPLICABLE SIMILAR LAW.”

(iii)    All Series 2016-1 Global Notes shall bear the following legend:

“THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), OR A NOMINEE THEREOF. THIS NOTE


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MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO ONDECK ASSET SECURITIZATION TRUST II LLC (THE “ISSUER”) OR THE TRANSFER AGENT AND REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.”

(iv)    The required legends set forth above shall not be removed from the applicable Series 2016-1 Notes except as provided herein. The legend required for a Restricted Note may be removed from such Restricted Note if there is delivered to the Issuer and the Transfer Agent and Registrar such satisfactory evidence, which may include an Opinion of Counsel as may be reasonably required by the Issuer, the Transfer Agent or the Registrar that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Series 2016-1 Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Indenture Trustee upon receipt of an Issuer Order shall authenticate and deliver in exchange for such Restricted Note a Series 2016-1 Note or Series 2016-1 Notes having an equal aggregate principal amount that does not bear such legend.
ARTICLE VII

INFORMATION
The Issuer hereby agrees to provide to the Indenture Trustee, by 2:00 P.M., New York City time, on each Monthly Reporting Date, a Monthly Settlement Statement, substantially in the form of Exhibit D, setting forth as of the immediately preceding Determination Date and for the related Monthly Period the information set forth therein, and, on and after the immediately succeeding Payment Date, and such obligation shall be deemed satisfied upon delivery of each such Monthly Settlement Statement to the Indenture Trustee by the Servicer, and the Indenture Trustee shall provide to the Series 2016-1 Note Owners copies of such Monthly Settlement Statement. The Indenture Trustee shall make each Monthly Settlement Statement available each month (as described above) to the Series 2016-1 Note Owners via the Indenture Trustee’s internet website. The Indenture Trustee’s internet website shall initially be located at https://tss.sfs.db.com/investpublic,which may be accessed by the Note Owners with the use of an assigned password.


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ARTICLE VIII
MISCELLANEOUS
Section 8.1     Ratification of Indenture.
As supplemented by this Indenture Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Indenture Supplement shall be read, taken and construed as one and the same instrument.
Section 8.2     Governing Law.
THIS INDENTURE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.3     Further Assurances.
The Issuer agrees, at the Issuer’s expense, from time to time, to do and perform any and all acts and to execute any and all further instruments required or reasonably requested by the Indenture Trustee or the Majority in Interest to more fully effect the purposes of this Indenture Supplement and the sale of the Series 2016-1 Notes hereunder. The Issuer hereby authorizes the Indenture Trustee (without obligation) to file any financing statements or similar documents or notices or continuation statements in order to perfect the Indenture Trustee’s security interest in the Series 2016-1 Collateral under the provisions of the UCC or similar legislation of any applicable jurisdiction.
Section 8.4     Exhibits.
The following exhibits attached hereto supplement the exhibits included in the Base Indenture:
Exhibit A-1:    Form of Restricted Global Class A Note
Exhibit A-2:    Form of Temporary Global Class A Note
Exhibit A-3:    Form of Permanent Global Class A Note
Exhibit B-1:    Form of Restricted Global Class B Note
Exhibit B-2:    Form of Temporary Global Class B Note
Exhibit B-3:    Form of Permanent Global Class B Note
Exhibit C‑1:    Form of Transfer Certificate
Exhibit C‑2:    Form of Transfer Certificate
Exhibit C‑3:    Form of Transfer Certificate
Exhibit C-4:     Form of Clearing System Certificate
Exhibit C-5:    Form of Certificate of Beneficial Ownership
Exhibit D:     Form of Monthly Settlement Statement
Exhibit E:    Form of Withdrawal Request


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Exhibit F:    Industry Codes
Exhibit G:    SIC Industry Codes
Section 8.5     No Waiver; Cumulative Remedies.No failure to exercise and no delay in exercising, on the part of the Indenture Trustee, 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 8.6     Amendments.
Except as provided in Section 12.1 of the Base Indenture, and subject to Section 12.6 of the Base Indenture, the provisions of this Indenture Supplement may from time to time be amended, modified or waived, if (i) such amendment, modification or waiver is in writing and is consented to in writing by the Issuer, the Indenture Trustee and the Majority in Interest and (ii) the Rating Agency Condition is satisfied with respect to such amendment, modification, or waiver.
Section 8.7     Severability.If any provision hereof is void or unenforceable in any jurisdiction, such voidness or unenforceability shall not affect the validity or enforceability of (i) such provision in any other jurisdiction or (ii) any other provision hereof in such or any other jurisdiction.
Section 8.8     Counterparts.This Indenture Supplement may be executed in two or more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Indenture Supplement by facsimile transmission or electronic transmission (in pdf format) shall be as effective as delivery of a manually executed counterpart of this Indenture Supplement.
Section 8.9     No Bankruptcy Petition.
(a)     By acquiring a Series 2016-1 Note or an interest therein, each Series 2016-1 Noteholder and each Series 2016-1 Note Owner hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other similar proceedings under any federal or state bankruptcy or similar law.
(b)     This covenant shall survive the termination of this Indenture Supplement and the Base Indenture and the payment of all amounts payable hereunder and thereunder.
Section 8.10     Notice to Rating Agencies.The Indenture Trustee shall provide to the Rating Agencies a copy of each notice delivered to, or required to be provided by, the Indenture Trustee pursuant to this Indenture Supplement or any other Transaction Document.


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Notice to DBRS shall be sent to:
DBRS Inc.
Attention Surveillance
E-mail: ABS_Surveillance@dbrs.com
140 Broadway
New York, NY 10005
Notice to S&P shall be sent to:
Standard & Poor’s Rating Services
Structured Finance
Attention: Structured Credit Surveillance
Email: servicer_reports@standardandpoors.com
55 Water Street, 41st Floor
New York, NY 10041
Section 8.11     Annual Opinion of Counsel.
On or before March 31 of each calendar year, commencing with March 31, 2017, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture Supplement or any Supplement hereto and any other requisite documents and with respect to the authorization and filing of any financing statements and continuation statements as are necessary to maintain the perfection of the Lien and security interest created by this Indenture Supplement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such Lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture Supplement, any Supplement hereto, and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the perfection of the Lien and security interest of this Indenture Supplement and any until March 31 in the following calendar year. For the avoidance of doubt, any Opinion of Counsel furnished in connection with this Section 8.11 may be combined with other Opinions of Counsel furnished to the Indenture Trustee pursuant to the other Transaction Documents.
Section 8.12     Tax Treatment.
The Series 2016-1 Notes are being issued with the intention that they qualify under applicable tax law as indebtedness and any entity acquiring any direct or indirect interest in any Series 2016-1 Note by acceptance of its Series 2016-1 Notes (or, in the case of a Note Owner, by virtue of such Note Owner’s acquisition of a beneficial interest therein) agrees to treat the Series 2016-1 Notes (or its beneficial interest therein) for purposes of federal, state and local income or franchise taxes and any other tax imposed on or measured by income as indebtedness.
Section 8.13     Confidentiality.


43

Each Series 2016-1 Note Owner, by its acceptance and holding of a beneficial interest in a Series 2016-1 Note, hereby agrees to maintain the confidentiality of all Confidential Information in accordance with procedures adopted by such Series 2016-1 Note Owner in good faith to protect Confidential Information of third parties delivered to such Person; provided that such Person may deliver or disclose Confidential Information to: (i) such Person’s directors, trustees, officers, employees, agents, attorneys, independent or internal auditors and affiliates who agree to hold confidential the Confidential Information; (ii) such Person’s financial advisors and other professional advisors who agree to hold confidential the Confidential Information; (iii) any other Series 2016-1 Note Owner; (iv) any Person of the type that would be, to such Person’s knowledge, permitted to acquire an interest in the Series 2016-1 Notes in accordance with the requirements of this Indenture Supplement pursuant to which such Person sells or offers to sell any such interest in the Series 2016-1 Notes or any part thereof and that agrees to hold confidential the Confidential Information in accordance with this Indenture Supplement; (v) any federal or state or other regulatory, governmental or judicial authority having jurisdiction over such Person; (vi) the National Association of Insurance Commissioners or any similar organization, or any nationally-recognized rating agency that requires access to information about the investment portfolio or such Person; (vii) any reinsurers or liquidity or credit providers that agree to hold confidential the Confidential Information; (viii) any other Person with the consent of the Issuer or (ix) any other Person to which such delivery or disclosure may be necessary or appropriate (A) to effect compliance with any law, rule, regulation, statute or order applicable to such Series 2016-1 Noteholder, (B) in response to any subpoena or other legal process upon prior notice delivered to the Issuer (unless prohibited by applicable law or other requirement having the force of law), (C) in connection with any litigation to which such Person is a party upon prior notice delivered to the Issuer (unless prohibited by applicable law or other requirement having the force of law) or (D) if an Amortization Event with respect to the Series 2016-1 Notes or Event of Default has occurred and is continuing, to the extent such Person may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies offered under the Series 2016-1 Notes, the Indenture or any other document relating to the Series 2016-1 Notes. Each Series 2016-1 Note Owner, by its acceptance of a beneficial interest in the Series 2016-1 Notes, hereby agrees, except as set forth in clauses (v), (vi) and (ix) above, that it will use the Confidential Information for the sole purpose of making an investment in the Series 2016-1 Notes or administering its investment in the Series 2016-1 Notes. In the event of any required disclosure of the Confidential Information by such Series 2016-1 Noteholder, such Series 2016-1 Noteholder shall agree to use reasonably efforts to protect the confidentiality of the Confidential Information.






IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture Supplement to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.

ONDECK ASSET SECURITIZATION TRUST II LLC, as Issuer
By: /s/ Howard Katzenberg        
Name:    Howard Katzenberg
Title:     Chief financial Officer

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee
By: /s/ Karlene Benvenute        
Name:    Karlene Benvenute
Title:     Assistant Vice President
By: /s/ Marion Hogan        
Name:    Marion Hogan
Title:     Assistant Vice President







44    

Exhibit
Exhibit 10.4

THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 28, 2016
among
ON DECK ASSET COMPANY, LLC,
as Borrower
VARIOUS LENDERS,
and
WC 2014-1, LLC,
as Administrative Agent
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent and Collateral Agent
________________________________________________________
$75,000,000 Securitization Facility
________________________________________________________



TABLE OF CONTENTS




 
 
Page
SECTION 1.

DEFINITIONS AND INTERPRETATION
1

1.1

Definitions
1

1.2

Accounting Terms
39

1.3

Interpretation, etc.
40

1.4

Amendment and Restatement
40

 
 
 
SECTION 2.

LOANS
40

2.1

Revolving Loans
40

2.2

Pro Rata Shares
42

2.3

Use of Proceeds
42

2.4

Evidence of Debt; Register; Lenders’ Books and Records; Notes
42

2.5

Interest on Loans
43

2.6

Default Interest
44

2.7

Fees
44

2.8

Revolving Commitment Termination Date
44

2.9

Voluntary Commitment Reductions
44

2.10

Borrowing Base Deficiency
45

2.11

Controlled Accounts
45

2.12

Application of Proceeds
49

2.13

General Provisions Regarding Payments
51

2.14

Ratable Sharing
51

2.15

Increased Costs; Capital Adequacy
52

2.16

Taxes; Withholding, etc.
54

2.17

Obligation to Mitigate
56

2.18

Defaulting Lenders
57

2.19

Removal or Replacement of a Lender
58

2.20

The Paying Agent
58

2.21

Duties of Paying Agent
63

2.22

Collateral Agent
65

2.23

Intention of Parties
66

 
 
 
SECTION 3.

CONDITIONS PRECEDENT
67

3.1

Conditions Precedent to Effectiveness of the Existing Credit Agreement
67

3.2

Conditions Precedent to Effectiveness of the Third Amended and Restated Credit Agreement
67

3.3

Conditions to Each Credit Extension
69

 
 
 
SECTION 4.

REPRESENTATIONS AND WARRANTIES
70

4.1

Organization; Requisite Power and Authority; Qualification; Other Names
70

4.2

Capital Stock and Ownership
71


i    
TABLE OF CONTENTS
(continued)
Page


4.3

Due Authorization
71

4.4

No Conflict
71

4.5

Governmental Consents
71

4.6

Binding Obligation
71

4.7

Eligible Receivables
72

4.8

Historical Financial Statements
72

4.9

Financial Plan
72

4.10

No Material Adverse Effect
72

4.11

Adverse Proceedings, etc.
72

4.12

Payment of Taxes
72

4.13

Title to Assets
73

4.14

No Indebtedness
73

4.15

No Defaults
73

4.16

Material Contracts
73

4.17

Government Contracts
73

4.18

Governmental Regulation
73

4.19

Margin Stock
73

4.20

Employee Benefit Plans
73

4.21

Certain Fees
73

4.22

Solvency; Fraudulent Conveyance
74

4.23

Compliance with Statutes, etc.
74

4.24

Matters Pertaining to Related Agreements
74

4.25

Disclosure
74

4.26

Patriot Act
75

4.27

Remittance of Collections
75

 
 
 
SECTION 5.

AFFIRMATIVE COVENANTS
75

5.1

Financial Statements and Other Reports
75

5.2

Existence
78

5.3

Payment of Taxes and Claims
79

5.4

Insurance
79

5.5

Inspections; Compliance Audits; Regulatory Review
79

5.6

Lenders Meetings
80

5.7

Compliance with Laws
80

5.8

Separateness
80

5.9

Further Assurances
81

5.10

Communication with Accountants
81

5.11

Acquisition of Receivables from Holdings
81

 
 
 
SECTION 6.

NEGATIVE COVENANTS
81

6.1

Indebtedness
81

6.2

Liens
81

6.3

Equitable Lien
82


ii    
TABLE OF CONTENTS
(continued)
Page


6.4

No Further Negative Pledges
82

6.5

Restricted Junior Payments
82

6.6

Subsidiaries
82

6.7

Investments
82

6.8

Fundamental Changes; Disposition of Assets; Acquisitions
82

6.9

Sales and Lease-Backs
83

6.10

Transactions with Shareholders and Affiliates
83

6.11

Conduct of Business
83

6.12

Fiscal Year
83

6.13

Servicer; Backup Servicer; Custodian
83

6.14

Acquisitions of Receivables
84

6.15

Independent Manager
84

6.16

Organizational Agreements and Credit Documents
85

6.17

Changes in Underwriting or Other Policies
86

6.18

Receivable Forms
86

 
 
 
SECTION 7.

EVENTS OF DEFAULT
87

7.1

Events of Default
87

 
 
 
SECTION 8.

AGENTS
91

8.1

Appointment of Agents
91

8.2

Powers and Duties
91

8.3

General Immunity
91

8.4

Agents Entitled to Act as Lender
92

8.5

Lenders’ Representations, Warranties and Acknowledgment
93

8.6

Right to Indemnity
93

8.7

Successor Administrative Agent and Collateral Agent
94

8.8

Collateral Documents
95

 
 
 
SECTION 9.

MISCELLANEOUS
96

9.1

Notices
96

9.2

Expenses
96

9.3

Indemnity
97

9.4

Reserved
97

9.5

Amendments and Waivers
97

9.6

Successors and Assigns; Participations
99

9.7

Independence of Covenants
103

9.8

Survival of Representations, Warranties and Agreements
103

9.9

No Waiver; Remedies Cumulative
103

9.10

Marshalling; Payments Set Aside
103

9.11

Severability
104

9.12

Obligations Several; Actions in Concert
104

9.13

Headings
104


iii    
TABLE OF CONTENTS
(continued)
Page


9.14

APPLICABLE LAW
104

9.15

CONSENT TO JURISDICTION
104

9.16

WAIVER OF JURY TRIAL
105

9.17

Confidentiality
106

9.18

Usury Savings Clause
107

9.19

Counterparts
108

9.20

Effectiveness
108

9.21

Patriot Act
108



iv    
TABLE OF CONTENTS
(continued)
Page



APPENDICES:
A
Revolving Commitments
 
B
Notice Addresses
 
C
Eligibility Criteria
 
D
Excess Concentration Amounts
 
E
Portfolio Performance Covenants
 
F
Calculation of Receivable Yield and Outstanding Principal Balance

SCHEDULES:
1.1-A
[Reserved]
 
1.1-B
Financial Covenants
 
4.1
Jurisdictions of Organization and Qualification; Trade Names
 
4.2
[Reserved]

EXHIBITS:
A
Form of Funding Notice
 
B
Form of Revolving Loan Note
 
C-1
Form of Compliance Certificate
 
C-2
Form of Borrowing Base Report and Certificate
 
D
Form of Assignment Agreement
 
E
Form of Certificate Regarding Non‑Bank Status
 
F
Form of Third Amendment Effective Date Certificate
 
G
Form of Controlled Account Voluntary Payment Notice
 
H
Form of Financing Statement
 
I
Form of Receivables Purchase Agreement



v    


THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28, 2016, is entered into by and among ON DECK ASSET COMPANY, LLC, a Delaware limited liability company (“Company”), the Lenders party hereto from time to time and WC 2014-1, LLC, as Administrative Agent for the Lenders (in such capacity, “Administrative Agent”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent (in such capacity, “Paying Agent”) and as Collateral Agent for the Secured Parties (in such capacity, “Collateral Agent”).
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, the Company, the Lenders party hereto, the Administrative Agent (as successor in such capacity to ODBL IV, LLC), the Collateral Agent and the Paying Agent are parties to that certain Amended and Restated Credit Agreement dated as of October 17, 2014 (as amended, supplemented or modified from time to time, the “Original Credit Agreement”); and
WHEREAS, the Company, the Lenders party hereto, the Administrative Agent (as successor in such capacity to ODBL IV, LLC), the Collateral Agent and the Paying Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of December 19, 2014 (as amended, supplemented or modified from time to time, the “Existing Credit Agreement”); and
WHEREAS, in order to continue the existing indebtedness of the Company the Company has requested that the Existing Credit Agreement be amended and restated in its entirety (the “Amendment and Restatement”), and the Lenders party thereto are willing to do so on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
Section 1.DEFINITIONS AND INTERPRETATION
1.1    Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“15 Day Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) that had a Missed Payment Factor of (x) with respect to Daily Pay Receivables, fifteen (15) or higher, or (y) with respect to Weekly Pay Receivables, three (3) or higher, in each case, as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.




“10-20 Day Delinquent Receivable” means, as of any date of determination, any Receivable with a Missed Payment Factor of (x) with respect to Daily Pay Receivables, more than ten (10) but less than twenty-one (21) and a Payment has been received on such Receivable on at least one of the last three (3) Payment Dates, and (y) with respect to Weekly Pay Receivables, more than two (2) but less than or equal to four (4), and a Payment has been received on such Receivable on the last Payment Date.
“80% Drawn LOCs” means any Eligible Receivable that is an LOC Receivable and, as of the last day of each of the three (3) immediately preceding Monthly Periods (for the avoidance of any doubt, a Borrowing Base Certificate issued on a Monthly Reporting Date shall be calculated utilizing the last day of each of the three (3) months immediately preceding such Monthly Reporting Date), had a Combined LOC OPB that was, on a percentage basis, greater than 80% of the “Credit Limit” then applicable pursuant to the applicable Receivables Agreement of the Receivables Obligor thereunder.
“91% Eligible Receivable” means a Receivable with respect to which the Eligibility Criteria (other than the FICO score requirements set forth in clauses (vv) through (yy) thereof) are satisfied as of the applicable date of determination.
“Accrued Interest Amount” means, as of any day, the aggregate amount of all accrued and unpaid interest on the Revolving Loans payable hereunder.
“ACH Agreement” has the meaning set forth in the Servicing Agreement.
“ACH Receivable” means each Receivable with respect to which the underlying Receivables Obligor has entered into an ACH Agreement.
“Act” as defined in Section 4.26.
“Adjusted EPOB” means, as of any date of determination, the excess of (a) the Eligible Portfolio Outstanding Principal Balance as of such date over (b) the sum of, without duplication, (i) the aggregate Excess Concentration Amounts as of such date, and (ii) the product of 70% and the aggregate Eligible Portfolio Outstanding Principal Balance of all 10-20 Day Delinquent Receivables as of such date.
“Adjusted LOC Interest Collections” means, with respect to LOC Receivables and any Monthly Period, an amount equal to (a) the sum of (i) the product of (x) all Collections received during such Monthly Period that were not applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables that are LOC Receivables in accordance with Section 2(a)(i)(4) of the Servicing Agreement and (y) the quotient of 4.3333 divided by the number of Payment Dates in such Monthly Period (which for the avoidance of any doubt may be either 4 or 5 Payment Dates in any given Monthly Period), and (ii) all Collections received during such Monthly Period that were recoveries with respect to Charged-Off Receivables (net of amounts, if any, retained by any third party collection agent) that are LOC Receivables minus (b) the product of (i) the LOC BB Concentration Percentage and (ii) the aggregate amount paid by Company on the related Interest Payment Date pursuant to clauses (a)(i), (a)(ii), (a)(iii) and (a)(v) of Section 2.12.

2    


“Adjusted Term Interest Collections” means, with respect to Term Receivables and any Monthly Period, an amount equal to (a) the product of (i) the sum of (x) all Collections received during such Monthly Period that were not applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables that are Term Receivables in accordance with Section 2(a)(i)(4) of the Servicing Agreement and (y) all Collections received during such Monthly Period that were recoveries with respect to Charged-Off Receivables (net of amounts, if any, retained by any third party collection agent) that are Term Receivables and (ii) the quotient of 21 divided by the number of Business Days in such Monthly Period minus (b) the product of (i) the Term BB Concentration Percentage and (ii) the aggregate amount paid by Company on the related Interest Payment Date pursuant to clauses (a)(i), (a)(ii), (a)(iii) and (a)(v) of Section 2.12.
“Administrative Agent” as defined in the preamble hereto.
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Company, Holdings or any Subsidiary thereof) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Company or Holdings, threatened in writing against or affecting Company, Holdings or any Subsidiary thereof, or any of their respective property.
“Affected Party” means any Lender, ODBL IV, LLC, in its prior capacity as Administrative Agent hereunder solely with respect to the period ODBL IV, LLC was Administrative Agent hereunder, WC 2014-1, LLC, in its capacity as Administrative Agent, Paying Agent and, with respect to each of the foregoing, the parent company or holding company that controls such Person.
“Affiliate” means, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, “control” means the power to direct the management and policies of a Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and “controlled” and “controlling” have meanings correlative to the foregoing.
“Agency Agreement” means that certain Secured Party Representative Services Agreement, dated as of June 20, 2012, between Holdings and the UCC Agent, or any successor or other agreement with a UCC Agent serving substantially the same purpose.
“Agent” means each of the Administrative Agent, the Paying Agent and the Collateral Agent.
“Aggregate Amounts Due” as defined in Section 2.14.
“Aggregate Obligor Exposure” means, at any time, with respect to any Receivables Obligor (excluding any Receivables Guarantor), the sum of (a) with respect to any Term Receivable, the Outstanding Principal Balance thereof; and (b) with respect to any LOC Receivable, the related “credit limit” set forth in the applicable Receivables Agreement.

3    


“Agreement” means this Third Amended and Restated Credit Agreement, dated as of April [ ], 2016, as it may be amended, supplemented or otherwise modified from time to time.
“Amendment and Restatement” as defined in the Recitals hereto.
“Applicable Advance Rate” means (a) for Eligible Receivables other than 91% Eligible Receivables and LOC Receivables, 95%, (b) for Eligible Receivables constituting both Term Receivables and 91% Eligible Receivables, 91%, and (c) for Eligible Receivables constituting LOC Receivables, 75% (or, if the Average LOC Excess Spread is 8% or less for any of the three most recently ended Monthly Periods, 55%), provided that (x) the Applicable Advance Rate shall be zero for any LOC Receivable as to which the Receivables Obligor fails to pay in full the first Payment due after the extension of any advance under the related OnDeck LOC unless and until the first date (if any) thereafter upon which such LOC Receivable has a Missed Payment Factor of zero, in which case the Applicable Advance Rate for such Eligible Receivable shall be 75% (or, if the Average LOC Excess Spread is 8% or less for any of the three most recently ended Monthly Periods, 55%); and (y) in the event that On Deck Capital, Inc. is removed as “servicer” following a “servicer default” (as defined in the related servicing agreement) with respect to any other Funded Indebtedness then (1) the Company shall notify the Administrative Agent in writing; and (2) following the effectiveness of such removal and at the Administrative Agent’s written notice to the Company, the Applicable Advance Rate shall be 45%.
“Applicable Margin” means the “Applicable Margin” described in the Undertakings Agreement.
“Approved State” means each of the 50 United States of America and the District of Columbia; provided, however, that, in the event that the Administrative Agent determines in its Permitted Discretion to revoke the designation or restore a previously revoked designation of any jurisdiction as an “Approved State” due to a change in, or change in the interpretation of, the regulations or law (including case law) relating to (i) the origination, administration, servicing or terms, including interest rates, of any loan made to a Receivables Obligor; (ii) the choice of law, or the enforceability of the choice of law, that governs a loan made to a Receivables Obligor; or (iii) the choice of venue or the choice of jurisdiction, or the enforceability of the choice of venue or the choice of jurisdiction, that governs a loan made to a Receivables Obligor, then upon receipt by Company of notice thereof from the Administrative Agent, each such jurisdiction shall or shall no longer constitute an “Approved State”, as applicable.
“Asset Purchase Agreement” means that certain Second Amended and Restated Asset Purchase Agreement dated as of the Second Amendment Effective Date, by and between Company, as Purchaser, and the Seller, as amended, modified or supplemented from time to time, whereby the Seller has agreed to sell and Company has agreed to purchase Eligible Receivables from time to time.
“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of Holdings’

4    


businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired.
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, chief financial officer, general counsel, treasurer, corporate secretary, controller or senior vice president of capital markets (or, in each case, the equivalent thereof).
“Automatic LOC Payment Modification” means, with respect to any LOC Receivable, upon the occurrence of each Subsequent LOC Advance relating to such LOC Receivable, that the Payment obligations of the Receivable Obligor under such LOC Receivable are automatically reset and restructured together with all other advances made under the related OnDeck LOC (based on the aggregate outstanding principal balance of all such advances) so that, with respect to all such advances, from and after the date of the last such Subsequent LOC Advance, a single periodic payment amount is owed each week over the course of the applicable amortization period.
“Average LOC Excess Spread” means, with respect to any Monthly Period, the average of the LOC Excess Spread determined for such Monthly Period and the Monthly Period immediately preceding such Monthly Period.
“Average Term Excess Spread” means, with respect to any Monthly Period, the average of the Term Excess Spread determined for such Monthly Period and the Monthly Period immediately preceding such Monthly Period.
“Average LOC Loss Rate” means, with respect to any Monthly Period, the average of the LOC Loss Rate determined for such Monthly Period and the Monthly Period immediately preceding such Monthly Period.
“Backup Servicer” means Portfolio Financial Servicing Company or any replacement thereof appointed by the Requisite Lenders in accordance with Section 6.13, who will perform backup servicing and backup verification functions with respect to the Eligible Receivables.
“Backup Servicing Agreement” means that certain Backup Servicing Agreement dated as of the Original Closing Date among Company, the Servicer, the Administrative Agent and Backup Servicer, as it may be amended, modified or supplemented from time to time in accordance with Section 6.16, and any other agreement entered into from time to time among Company, the Servicer, the Administrative Agent and Backup Servicer with respect to the backup servicing and verification of the Eligible Receivables.
“Backup Servicing Fee” shall have the meaning attributed to such term in the Backup Servicing Agreement.

5    


“Bank Statement LOC Receivable” means any LOC Receivable for which bank account statements or similar electronic bank information in respect of the operating checking account of the Receivables Obligor thereunder were received or obtained by Holdings with respect to the OnDeck LOC pursuant to which such LOC Receivable was originated. Any LOC Receivable that is a Bank Statement LOC Receivable will for all purposes of this Agreement be deemed to remain a Bank Statement Receivable unless and until (a) a period in excess of twelve (12) consecutive months has passed during which no bank account statements or similar electronic bank information in respect of the operating checking account of the Receivables Obligor thereunder were received or obtained by Holdings, and (b) after such period of twelve (12) consecutive months has passed an LOC Receivable advanced under such OnDeck LOC is sold or contributed to the Company.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Blocked Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Borrowing Base” means, as of any day, an amount equal to the lesser of:
(a)    (i) the Applicable Advance Rate multiplied by the Adjusted EPOB at such time, plus (ii) the aggregate amount of Collections in the Lockbox Account and the Collection Account to the extent such Collections and other funds have already been applied to reduce the Eligible Portfolio Outstanding Principal Balance, minus (iii) 105% of the sum of the Accrued Interest Amount as of such day and the aggregate amount of all accrued and unpaid fees and expenses due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement; and
(b)    the Revolving Commitments on such day.
With respect to any calculation of the Borrowing Base with respect to any Credit Date solely for the purpose of determining Revolving Availability for a requested Revolving Loan, the Borrowing Base will be calculated on a pro forma basis giving effect to the Eligible Receivables to be purchased with the proceeds of such Revolving Loan. With respect to any calculation of the Borrowing Base for any other purpose, the Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Paying Agent, the Collateral Agent, the Administrative Agent and each Lender, with such adjustments as the Paying Agent identifies pursuant to Section 2.21.
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit C-2, executed by an Authorized Officer of Company and delivered to Administrative Agent, Paying Agent, Collateral Agent and each Lender, which sets forth the calculation of the Borrowing Base, including a calculation of each component thereof.
“Borrowing Base Deficiency” means, as of any day, the amount, if any, by which the Total Utilization of Revolving Commitments exceeds the Borrowing Base.

6    


“Borrowing Base Report” means a report substantially in the form of Exhibit C-2, executed by an Authorized Officer of Company and delivered to Administrative Agent, Paying Agent, Collateral Agent and each Lender, which attaches a Borrowing Base Certificate.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in New York are authorized or required by law or other governmental action to close.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (i) as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (ii) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“Cash” means money, currency or a credit balance in any demand, securities account or deposit account; provided, however, that notwithstanding anything to the contrary contained herein, “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of Holdings and its Subsidiaries.
“Cash Equivalents” means, as of any day, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such day; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such day and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one year after such day and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000 and (iii) has the highest rating obtainable from either S&P or Moody’s.
“Certificate Regarding Non‑Bank Status” means a certificate substantially in the form of Exhibit E.

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“Change of Control” means, at any time, (a) (i) any “person” or “group” of related persons (as such terms are given meaning in the Exchange Act and the rules of the SEC thereunder) is or becomes the owner, beneficially or of record, directly or indirectly, of more than 35% on a fully diluted basis of the economic and voting interests (including the right to elect directors or similar representatives) in the Capital Stock of the IPO Entity and (ii) and the percentage on a fully diluted basis of the economic and voting interests (including the right to elect directors or similar representatives) in the Capital Stock of the IPO Entity so held is greater than the percentage on a fully diluted basis of the economic and voting interests (including the right to elect directors or similar representatives) in the Capital Stock of the IPO Entity held by the Existing Holders, unless the Existing Holders, directly or indirectly, otherwise have the right (pursuant to contract, proxy or otherwise) to designate, nominate or appoint (and do so designate, nominate or appoint) a majority of the board of directors of the IPO Entity; (b) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of Holdings and its Subsidiaries taken as a whole to any “person” (as such term is given meaning in the Exchange Act and the rules of the SEC thereunder); (c) at any time during any consecutive two-year period after an Initial Public Equity Offering, individuals who at the beginning of such period constituted the board of directors of the IPO Entity (together with any new directors whose election or appointment by the board of directors of the IPO Entity or whose nomination for election by the shareholders of the IPO Entity was approved by a vote of a majority of the directors of the IPO Entity then still in office who were either directors at the beginning of such period or whose election, appointment or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the IPO Entity then in office; or (d) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of Company.
“Charged-Off Receivable” means a Receivable which, in each case, consistent with the Underwriting Policies, has or should have been written off Company’s books as uncollectable.
“Chattel Paper” means any “chattel paper”, as such term is defined in the UCC, including electronic chattel paper, now owned or hereafter acquired by the Company.
“Co-Existence LOC Receivable” means, as of any date of determination, any LOC Receivable regarding which the Receivables Obligor thereunder is also an obligor under at least one other Term Receivable (whether or not such Term Receivable is owned by the Company).
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Agent” as defined in the preamble hereto.
“Collateral Assignment” means that certain Collateral Assignment dated as of the Original Closing Date by Company for the benefit of the Collateral Agent on behalf of the Secured Parties.

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“Collateral Documents” means the Security Agreement, the Control Agreements, the Collateral Assignment and all other instruments, documents and agreements delivered by, or on behalf or at the request of, Company or Holdings pursuant to this Agreement or any of the other Credit Documents, as the case may be, in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of Company as security for the Obligations or to protect or preserve the interests of Collateral Agent or the Secured Parties therein.
“Collateral Receipt and Exception Report” shall mean the “Trust Receipt” as defined in the Custodial Agreement.
“Collection Account” means a Securities Account with account number OD1302.1 at Deutsche Bank Trust Company Americas in the name of Company.
“Collections” means, with respect to each Pledged Receivable, any and all cash collections and other cash proceeds of such Pledged Receivable (whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment), including, without limitation, all prepayments, all overdue payments, all prepayment penalties and early termination penalties, all finance charges, if any, all amounts collected as interest, fees (including, without limitation, any servicing fees, any origination fees, any loan guaranty fees and, any platform fees), or charges for late payments with respect to such Pledged Receivable, all recoveries with respect to each Charged-Off Receivable (net of amounts, if any, retained by any third party collection agent), all investment proceeds and other investment earnings (net of losses and investment expenses) on Collections as a result of the investment thereof pursuant to Section 6.7, all proceeds of any sale, transfer or other disposition of any Pledged Receivable by Company and all deposits, payments or recoveries made in respect of any Pledged Receivable to any Controlled Account, or received by Company in respect of a Pledged Receivable, and all payments representing a disposition of any Pledged Receivable.
“Combined LOC OPB” means, as of any date with respect to each LOC Receivable acquired by Company, the aggregate unpaid principal balance of such LOC Receivable and all other LOC Receivables representing an advance under the related OnDeck LOC as set forth on the Servicer’s books and records as of the close of business on the immediately preceding Business Day (it being understood and agreed that the Servicer shall reflect all such LOC Receivables on its books and records as only one aggregate Receivable owed by the applicable Receivables Obligor).
“Company” as defined in the preamble hereto.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C-1.
“Compliance Review” as defined in Section 5.5(b).
“Consolidated Liquidity” means, as of any date of determination, an amount determined for Holdings and its Subsidiaries, on a consolidated basis, equal to the sum of (i) unrestricted Cash and Cash Equivalents of Holdings and its Subsidiaries, as of such date, plus, (ii) amounts (if any) in the Reserve Account as of such date, plus (iii) the Revolving Availability as of

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such date of determination, plus (iv) the aggregate amount of all unused and available credit commitments under any credit facilities of Holdings and its Subsidiaries, as of such date; provided, as of such date, all of the conditions to funding such amounts under clause (iii) and (iv), as the case may be, have been fully satisfied (other than delivery of prior notice of funding and pre-funding notices, opinions and certificates that are reasonably capable of delivery as of such date) and no lender under such credit facilities shall have refused to make a loan or other advance thereunder at any time after a request for a loan was made thereunder.
“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated basis in accordance with GAAP, including all accrued and unpaid interest on the foregoing, provided, that accounts payable, accrued expenses, liabilities for leasehold improvements and deferred revenue of Holdings and its Subsidiaries shall not be included in any determination of Consolidated Total Debt.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Control Agreements” means collectively, the Lockbox Account Control Agreement, the Securities Account Control Agreement and the Blocked Account Control Agreement.
“Controlled Account” means each of the Reserve Account, the Collection Account and the Lockbox Account, and the “Controlled Accounts” means all of such accounts.
“Controlled Account Bank” means Deutsche Bank Trust Company Americas.
“Convertible Indebtedness” means any Indebtedness of Holdings that (a) is convertible to equity, including convertible preferred stock, (b) requires no payment of principal thereof or interest thereon and (c) is fully subordinated to all indebtedness for borrowed money of Holdings, as to right and time of payment and as to any other rights and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such indebtedness for borrowed money.
“Credit Card Issuer” means a member of Visa, MasterCard, American Express, Discover and PayPal.
“Credit Card Payment” means an amount owing by Credit Card Issuer to a Receivables Obligor (i) in respect of a purchase made by a customer of such Receivables Obligor, (ii) paid for using a credit card issued by such Credit Card Issuer, and (iii) that is required by the applicable Transfer Account Loan Documentation to be deposited into a Transfer Account.
“Credit Date” means the date of a Credit Extension.

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“Credit Document” means any of this Agreement, the Revolving Loan Notes, if any, the Collateral Documents, the Asset Purchase Agreement, the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Undertakings Agreement and all other documents, instruments or agreements executed and delivered by Company or Holdings for the benefit of any Agent or any Lender in connection herewith.
“Credit Document Amendments” as defined in Section 3.2(a).
“Credit Extension” means the making of a Revolving Loan.
“Cumulative Defaults” means, with respect to any Vintage Pool as of the end of any Monthly Period, the sum for all Receivables in such Vintage Pool that became Defaulted Receivables of the Outstanding Principal Balances thereof determined as of the date on which they became Defaulted Receivables less any Collections received on such Defaulted Receivables from and after the date on which they became Defaulted Receivables (measured for the period commencing from the origination of each such Receivable to the end of such Monthly Period).
“Cumulative Static Pool Default Ratio” means, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Cumulative Defaults in respect of any Vintage Pool as of the last day of the most recently ended Monthly Period and (b) the denominator of which is (i) for any Vintage Pool other than the Q3 Vintage Pool, the aggregate original Outstanding Principal Balance of all Term Receivables comprising such Vintage Pool, and (ii) for the Q3 Vintage Pool, the aggregate original Outstanding Principal Balance of all Term Receivables comprising the Q3 Vintage Pool as of the date such Receivables were sold to the Company.
“Custodial Agreement” mean that certain Amended and Restated Custodial Services Agreement, dated as of the Second Amendment Effective Date, by and between Company, Servicer, Custodian and Collateral Agent, as it may be amended, supplemented or otherwise modified from time to time.
“Custodian” means Deutsche Bank Trust Company Americas, in its capacity as the provider of services under the Custodial Agreement, or any successor thereto in such capacity appointed in accordance with the Custodial Agreement, and approved by the Requisite Lenders.
“Daily Pay Receivable” means any Receivable for which a Payment is generally due on every Business Day.
“DB Credit Facility” means that certain Second Amended and Restated Credit Agreement, dated as of October 7, 2015, among On Deck Account Receivables Trust 2013-1 LLC, as the borrower, the lenders signatory thereto from time to time, Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral Agent, Deutsche Bank Trust Company Americas, as Paying Agent, and Deutsche Bank Securities Inc., as Syndication Agent, Documentation Agent and Lead Arranger, as the same may be or has been amended, supplemented, restated, or otherwise modified from time to time.


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“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Revolving Loans of all Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Revolving Loans of such Defaulting Lender.
“Default Interest Rate” as defined in Section 2.6.
“Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default, and ending on the earliest of the following dates: (i) the date on which all Revolving Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non‑pro rata application of any payments of the Revolving Loans in accordance with the terms of this Agreement), and (b) such Defaulting Lender shall have delivered to Company and Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder with respect to its Revolving Commitments, and (iii) the date on which Company, Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.
“Defaulted Loan” as defined in Section 2.18.
“Defaulted Receivable” means, with respect to any date of determination, a Receivable which (i) is a Charged-Off Receivable or (ii) has a Missed Payment Factor of (x) with respect to Daily Pay Receivables, sixty (60) or higher or (y) with respect to Weekly Pay Receivables, twelve (12) or higher.
“Defaulting Lender” as defined in Section 2.18.
“Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (that are not Charged-Off Receivables) that are Pledged Receivables as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.

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“Delinquent Co-Existence LOC Receivable” means any Co-Existence LOC Receivable which, as of any date of determination, (i) had a Missed Payment Factor of one (1) or higher as of such date, or (ii) the Receivables Obligor thereunder is the obligor under at least one other Term Receivable which had a Missed Payment Factor of one (1) or higher as of such date.
“Delinquent LOC Receivable” means any LOC Receivable which, as of any date of determination, had a Missed Payment Factor of one (1) or higher as of such date.
“Delinquent Receivable” means, as of any date of determination, any Receivable with a Missed Payment Factor of one (1) or higher as of such date.
“Deposit Account” means a “deposit account” (as defined in the UCC), including a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Designated Officer” means, with respect to Company, any Person with the title of Chief Executive Officer, Chief Financial Officer or General Counsel.
“Determination Date” means the last day of each Monthly Period.
“Direct Competitor” means (a) each Person that is listed on the “List of Direct Competitors” provided to the Paying Agent by the Company on or prior to October 17, 2014, as such list may be updated by the Company from time to time by written notice from the Company to the Paying Agent after October 17, 2014 identifying one or more Persons engaged in the same or similar line of business as Holdings (each Person described in this clause (a), a “Listed Competitor”), and (b) (i) any clearly identifiable Affiliate of any Listed Competitor on the basis of such Affiliate’s name or (ii) any Affiliate of any Listed Competitor which the Company, either before or after its receipt of notification of a proposed assignment to such Affiliate, has identified in writing to the Paying Agent as an Affiliate of a Listed Competitor.
“Document Checklist” shall have the meaning attributed to such term in the Custodial Agreement.
“Dollars” and the sign “$” mean the lawful money of the United States.
“E-Sign Receivable” means any Receivable for which the signature or record of agreement of the Receivables Obligor is obtained through the use and capture of electronic signatures, click-through consents or other electronically recorded assents.
“Eligible Assignee” means (i) any Lender or any Lender Affiliate (other than a natural person), and (ii) any other Person (other than a natural Person) approved by Company, so long as no Default or Event of Default has occurred and is continuing, and Administrative Agent (each such approval not to be unreasonably withheld, it being understood that any failure to approve any assignment to a Direct Competitor shall be deemed reasonable); provided, that (y) neither Holdings nor any Affiliate of Holdings shall, in any event, be an Eligible Assignee, and (z) no Direct

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Competitor shall be an Eligible Assignee so long as no Specified Event of Default has occurred and is continuing.
“Eligible LOC Portfolio Outstanding Principal Balance” means, as of any date of determination, the sum of the Outstanding Principal Balance for all Eligible Receivables that are LOC Receivables as of such date.
“Eligible Portfolio Outstanding Principal Balance” means, as of any date of determination, the sum of the Outstanding Principal Balance for all Eligible Receivables as of such date.
“Eligible Receivable” means (a) a Receivable with respect to which the Eligibility Criteria are satisfied as of the applicable date of determination, and (b) a 91% Eligible Receivable.
“Eligible Receivables Obligor” means a Receivables Obligor that satisfies the criteria specified in Appendix C hereto under the definition of “Eligible Receivables Obligor”, subject to any changes agreed to by each of the Requisite Lenders and Company from time to time after the Third Amendment Effective Date.
“Eligible Term Portfolio Outstanding Principal Balance” means, as of any date of determination, the sum of the Outstanding Principal Balance for all Eligible Receivables that are Term Receivables as of such date.
“Eligibility Criteria” means the criteria specified in Appendix C hereto under the definition of “Eligibility Criteria”, subject to any changes agreed to by each of the Requisite Lenders and Company from time to time after the Third Amendment Effective Date.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended to the date hereof and from time to time hereafter, and any successor statute.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of a Person shall continue to be considered an ERISA Affiliate of such Person within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person and with respect to liabilities arising after such period, but only to the extent that such Person could be

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liable under the Internal Revenue Code or ERISA as a result of its relationship with such former ERISA Affiliate.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty (30) day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Holdings, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on Holdings, any of its Subsidiaries or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan of Holdings, any of its Subsidiaries, or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates, or the assets thereof, or against Holdings, any of its Subsidiaries or, with respect to any Pension Plan or Multiemployer Plan, any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
“Event of Default” means each of the events set forth in Section 7.1.

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“Excess Concentration Amounts” means the amounts set forth on Appendix D hereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Taxes” means, with respect to any Affected Party, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Affected Party being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes with respect to such Affected Party, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Affected Party with respect to an applicable interest in a Revolving Loan or Revolving Commitment pursuant to a law in effect on the date on which (i) such Affected Party became an Affected Party or (ii) such Affected Party changes its lending office, except in each case to the extent that, pursuant to Section 2.16(b), amounts with respect to such Taxes were payable either to such Affected Party’s assignor immediately before such Affected Party became an Affected Party or to such Affected Party immediately before it changed its lending office, and (c) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” as defined in the Recitals hereto.
“Existing Credit Documents” as defined in Section 1.4.
“Existing Obligations” as defined in Section 1.4.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, as of the date of this agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), and any current or future regulations promulgated thereunder or official interpretations thereof.
“Fee Letter” means the letter agreement dated as of May 22, 2015 between the Company and WC 2014-1, LLC.
“Financial Covenants” means the financial covenants set forth on Schedule 1.1-B hereto.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer (or the equivalent thereof) of Holdings that such financial statements fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year‑end adjustments.
“Financial Plan” as defined in Section 5.1(k).
“First Amendment Effective Date” means October 17, 2014.

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“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is perfected and is the only Lien to which such Collateral is subject.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
“Funded Indebtedness” means any secured Indebtedness incurred by a Subsidiary of Holdings from time to time to finance (in whole or in part) a portfolio of U.S. Term Receivables.
“Funding Default” as defined in Section 2.18.
“Funding Account” has the meaning set forth in Section 2.11(a).
“Funding Notice” means a notice substantially in the form of Exhibit A.
“Further Delinquent LOC Receivable” means any LOC Receivable which, as of any date of determination, had a Missed Payment Factor of three (3) or higher as of such date.
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Historical Financial Statements” means as of the Second Amendment Effective Date, (i) the audited financial statements of Holdings and its Subsidiaries, for the Fiscal Year ended 2013, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Year, and (ii) for the interim period from January 1, 2014 to the Second Amendment Effective Date, internally prepared, unaudited financial statements of Holdings and its Subsidiaries, consisting of a balance sheet and the related consolidated statements

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of income, stockholders’ equity and cash flows for each quarterly period completed prior to forty-six (46) days before the Second Amendment Effective Date and for each Monthly Period completed prior to thirty-one (31) days prior to the Second Amendment Effective Date, in the case of clauses (i) and (ii), certified by the chief financial officer (or the equivalent thereof) of Holdings that they fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments.
“Holdings” means On Deck Capital, Inc., a Delaware corporation.
“Holdings Working Capital Debt” means any Indebtedness of Holdings of the type described in clause (i) or clause (v) of the definition of “Indebtedness” that is secured in whole or in part by a security interest in Receivables, including any Convertible Debt that is so secured.
“Hot Backup Servicer Event” means, as of any date of determination with respect to the Monthly Period most recently ended, that any one of the following events shall have occurred with respect to such Monthly Period: (a) if any Term Receivables are then owned by the Company, the Average Term Excess Spread was less than 19.0%; (b) the Maximum Delinquency Rate was greater than 16.0%; or (c) the Maximum 15 Day Delinquency Rate was greater than 9.0%. Notwithstanding the foregoing, a Hot Backup Servicer Event shall be deemed to no longer exist from and after the date upon which the Hot Backup Servicer Event Cure has occurred (provided that only one Hot Backup Servicer Event Cure shall be permitted hereunder).
“Hot Backup Servicer Event Cure” shall mean, as of any date of determination with respect to the three Monthly Periods most recently ended, that each of the following conditions has been satisfied with respect to each such Monthly Period after the occurrence of a Hot Backup Servicer Event: (a) if any Term Receivables are then owned by the Company, the Average Term Excess Spread was greater than 25.0%; (b) the Maximum Delinquency Rate was less than 14.0%; (c) the Maximum 15 Day Delinquency Rate was less than 7.75%; and (d) no Hot Backup Servicer Event Cure shall have previously occurred.
“Inactive OnDeck LOC” means, as of any date of determination, an OnDeck LOC regarding which (i) one or more LOC Receivables advanced thereunder was previously sold to the Company and (ii) no LOC Receivable advanced thereunder had an outstanding principal balance for the immediately preceding six (6) month period.
“Increased‑Cost Lenders” as defined in Section 2.19.
“Indebtedness” as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding trade payables incurred in the ordinary course of business that are unsecured and not overdue by more than six (6) months unless being contested in good faith and any such obligations incurred under ERISA); (v) all indebtedness secured by any Lien on any

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property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co‑making, discounting with recourse or sale with recourse by such Person of the obligation of another; (viii) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (ix) any liability of such Person for an obligation of another through any Contractual Obligation (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as described in clause (viii) above; and (x) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses and disbursements of any kind or nature whatsoever (excluding any amounts not otherwise payable by Company under Section 2.16(b)(iii) but including the reasonable and documented fees and disbursements of one (1) counsel for the Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any reasonable and documented fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Agreement or the other Credit Documents, any Related Agreement, or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral)).
“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document.
“Indemnitee” as defined in Section 9.3.
“Indemnitee Agent Party” as defined in Section 8.6.
“Independent Manager” as defined in Section 6.15.

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“Initial Public Equity Offering” means an initial underwritten public offering of common Capital Stock of the IPO Entity pursuant to a registration statement filed with the SEC in accordance with the Securities Act, which yields not less than $50,000,000 in Net Cash Proceeds (and it being agreed and understood that the Initial Public Equity Offering occurred on December 17, 2014).
“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.
“Interest Payment Date” means the fifteenth calendar day after the end of each Monthly Period, and if such date is not a Business Day, the next succeeding Business Day.
“Interest Period” means an interest period (i) initially, commencing on and including the Original Closing Date and ending on but excluding the initial Interest Payment Date; and (ii) thereafter, commencing on and including each Interest Payment Date and ending on and excluding the immediately succeeding Interest Payment Date; provided, that no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is four (4) Business Days prior to each Interest Payment Date.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Investment” means (i) any direct or indirect purchase or other acquisition by Company of, or of a beneficial interest in, any of the Securities of any other Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, from any Person, of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Company to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write‑ups, write‑downs or write‑offs with respect to such Investment.
“IPO Entity” means, at any time at and after the Initial Public Equity Offering, Holdings or a parent entity of Holdings, as the case may be, the common Capital Stock of which were issued or otherwise sold pursuant to the Initial Public Equity Offering; provided that, immediately following the Initial Public Equity Offering, (i) if the IPO Entity is not Holdings, Holdings is a wholly-owned Subsidiary of the IPO Entity and (ii) the IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets owned or conducted, directly or indirectly, by Holdings immediately prior to the Initial Pubic Equity Offering.

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“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Key Person Event” means the occurrence, after the Third Amendment Effective Date, of each of the following events: (i) the termination or resignation of each of the officers holding the positions of Chief Executive Officer and Chief Operating Officer as of the Third Amendment Effective Date, (ii) the failure by Holdings to replace each such officer with a replacement officer acceptable to the Requisite Lenders in their Permitted Discretion within ninety (90) days after the second such termination or resignation, and (iii) the delivery by the Administrative Agent of written notice to Company after such ninety (90) day period notifying Company that a “Key Person Event” has occurred.
“Lender” means each provider of financing listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.
“Lender Affiliate” means, as applied to any Lender or Agent, any Related Fund and any Person directly or indirectly controlling (including any member of senior management of such Person), controlled by, or under common control with, such Lender or Agent. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
“Leverage Ratio” means the ratio as of any day of (a) Consolidated Total Debt, excluding Subordinated Debt and Convertible Indebtedness, as of such day, to (b) the sum of (i) Holdings’ total stockholders’ equity as of such day, (ii) Warranty Liability as of such day and (iii) the sum of Subordinated Debt and Convertible Indebtedness as of such day.
“LIBO Rate” means, for any Revolving Loan (or portion thereof) for any Interest Period, the greater of (a) 0.00% and (b) the rate per annum determined by the Paying Agent at approximately 11:00 a.m., London time, on the second Business Day before the first day of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rate (or any successor thereto) for deposits in dollars for a period of one month (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Paying Agent in its sole discretion); provided, that if such rate is not available at such time for any reason, then the “LIBO Rate” shall be the rate per annum (rounded upward to the nearest 1/16th of 1%) listed in The Wall Street Journal, “Money Rates” table at or about 10:00 a.m., New York City time, two Business Days prior to the beginning of the related Interest Period (or, if no such rate is listed two Business Days prior to the beginning of the related Interest Period, the rate listed on the Business Day on which such rate was last listed).
“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional

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sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
“Limited Liability Company Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, dated as of the Original Closing Date, as it may be amended, restated or otherwise modified from time to time in accordance with Section 6.16.
“LOC BB Concentration Percentage” means the amount expressed as a percentage equal to (i) the average daily dollar amount Borrowing Base generated from the LOC Receivables for such Monthly Period; over (ii) the average daily aggregate Borrowing Base for such Monthly Period.
“LOC Excess Spread” means, with respect to any Monthly Period, the product of (a) 12 times (b) the percentage equivalent of a fraction (i) the numerator of which is the difference of (x) the Adjusted LOC Interest Collections of all Eligible Receivables that are LOC Receivables for such Monthly Period over (y) the aggregate Outstanding Principal Balance of all Pledged Receivables that are LOC Receivables that became Defaulted Receivables during such Monthly Period and (ii) the denominator of which is the average daily Outstanding Principal Balance of all Pledged Receivables that are LOC Receivables for such Monthly Period (other than any such LOC Receivables with an Applicable Advance Rate of zero).
“LOC Loss Rate” means, with respect to any Monthly Period, the product of (a) 12 times (b) the percentage equivalent of a fraction (i) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables that are LOC Receivables that became Defaulted Receivables during such Monthly Period and (ii) the denominator of which is the average daily Outstanding Principal Balance of all Pledged Receivables that are LOC Receivables for such Monthly Period.
“LOC Portfolio Weighted Average Receivable Yield” means as of any date of determination, the quotient, expressed as a percentage, obtained by dividing (a) the sum, for all Eligible Receivables that are LOC Receivables, of the product of (i) the Receivable Yield for each such LOC Receivable multiplied by (ii) the Outstanding Principal Balance of such LOC Receivable as of such date, by (b) the Eligible LOC Portfolio Outstanding Principal Balance as of such date.
“LOC Receivable” means a Receivable acquired by the Company representing an advance under an OnDeck LOC offered to the related Receivables Obligor, it being understood and agreed that Payments thereunder are subject to Automatic LOC Payment Modifications in accordance with the terms of the applicable Receivable Agreement upon the occurrence of a Subsequent LOC Advance under such OnDeck LOC.
“LOC Receivable – Type 1” means any LOC Receivable relating to an OnDeck LOC with respect to which (i) the date of the first advance thereunder occurred on or prior to May 22, 2015, (ii) the date of the first sale or contribution to the Company of an LOC Receivable advanced

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under such OnDeck LOC was prior to the Third Amendment Effective Date, and (iii) the “applicable APR” set forth in the applicable Receivables Agreement was equal to 29% as of the date of the first sale or contribution to the Company of an LOC Receivable advanced under such OnDeck LOC.
“LOC Receivable – Type 2” means any LOC Receivable relating to an OnDeck LOC with respect to which (i) the date of the first sale or contribution to the Company of an LOC Receivable advanced under such OnDeck LOC was prior to the Third Amendment Effective Date, and (ii) the “applicable APR” set forth in the applicable Receivables Agreement was equal to 36% as of the date of the first sale or contribution to the Company of an LOC Receivable advanced under such OnDeck LOC.
“LOC Receivable – Type 3” means any LOC Receivable relating to an OnDeck LOC with respect to which (i) the date of the first sale or contribution to the Company of an LOC Receivable advanced under such OnDeck LOC was during the period beginning on the Third Amendment Effective Date and ending on May 3, 2016, and (ii) at the time of such first sale or contribution the Seller designated such first LOC Receivable as “Type 3” (it being understood that the Seller only made such designation where the “applicable APR” and the “credit limit” set forth in the applicable Receivables Agreement was greater than or equal to 29% and less than or equal to $50,000, respectively, in each case, as of the date of such first sale or contribution).
“LOC Receivable – Type 4” means any LOC Receivable (other than a LOC Receivable – Type 3) with respect to which the date of the first sale or contribution to the Company of an LOC Receivable advanced under the same OnDeck LOC under which such first LOC Receivable was advanced was on or after the Third Amendment Effective Date.
“Lockbox Account” means a Deposit Account with account number 180012408 at MB Financial Bank, N.A. in the name of Company.
“Lockbox Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Lockbox System” as defined in Section 2.11(c).
“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Master Record” as defined in the Custodial Agreement.
“Material Adverse Effect” means a material adverse effect on: (i) the business, operations, properties, assets, financial condition or results of operations of Company or Holdings; (ii) the ability of Company to pay any Obligations or Company or Holdings to fully and timely perform, in any material respect, its obligations under any Credit Document; (iii) the legality, validity, binding effect, or enforceability against Company or Holdings of any Credit Document to which it is a party; (iv) the existence, perfection, priority or enforceability of any security interest in the Pledged Receivables; (v) the validity, collectability, or enforceability of the Pledged Receivables

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taken as a whole or in any material part, or (vi) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.
“Material Change Notice” has the meaning set forth in Section 6.17.
“Material Contract” means any contract or other arrangement to which Company is a party (other than the Credit Documents or the Related Agreements) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.
“Material Modification” means, with respect to any Receivable, a reduction in the interest rate, an extension of the term, a reduction in, or change in frequency of, any required Payment or extension of a Payment Date or a reduction in the Outstanding Principal Balance, provided that an Automatic LOC Payment Modification shall not be deemed to be a Material Modification.
“Material Underwriting Policy Change” means any change or modification to the Underwriting Policies, if such change or modification could reasonably be expected to be adverse to Lenders or the Collateral, provided that any change or modification to the Underwriting Policies relating solely to the addition or modification of a Receivable product type introduced after the Original Closing Date (each, a “New Product”) shall not be deemed to be a Material Underwriting Policy Change unless and until, during any Monthly Period, the aggregate origination by Holdings of New Products exceeds (on a funded basis) the aggregate origination by Holdings of all Receivable products (at which point any such change or modification shall be deemed to be a Material Underwriting Policy Change). Notwithstanding the foregoing, any New Product shall no longer be considered a New Product for purposes of this definition subsequent to the time such New Product is generally (subject to the terms and conditions set forth herein) able to be financed hereunder or under another credit facility provided by the Administrative Agent or its affiliates.
“Materials” as defined in Section 5.5(b).
“Maximum 15 Day Delinquency Rate” means, with respect to any Monthly Period, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (other than Charged-Off Receivables) that are Pledged Receivables that had a Missed Payment Factor of (x) with respect to Daily Pay Receivables, fifteen (15) or higher, or (y) with respect to Weekly Pay Receivables, three (3) or higher, in each case, as of the last day of such Monthly Period, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period.
“Maximum Delinquency Rate” means, with respect to any Monthly Period, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Receivables (other than Charged-Off Receivables) that are Pledged Receivables as of the last day of such Monthly Period.

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“Maximum Upfront Fee” means, with respect to each Receivable, the greater of (a) $695 and (b) 3.5% of the original aggregate unpaid principal balance of such Receivable.
“Missed Payment Factor” means, in respect of any Receivable, an amount equal to the sum of (a) the amount equal to (i) the total past due amount of Payments in respect of such Receivable, divided by (ii) the required periodic Payment in respect of such Receivable as set forth in the related Receivable Agreement and (b) the number of Payment Dates, if any, past the Receivable maturity date on which a Payment was due but not received.
“Monthly Period” means the period from and including the first day of a calendar month to and including the last day of such calendar month.
“Monthly Reporting Date” means the third Business Day prior to each Interest Payment Date.
“Monthly Servicing Report” shall have the meaning attributed to such term in the Servicing Agreement.
“Moody’s” means Moody’s Investor Services, Inc.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
“Net Asset Sale Proceeds” means, with respect to any Permitted Asset Sale, an amount equal to: (i) Cash payments received by, or on behalf of, Company from such Permitted Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Permitted Asset Sale to the extent paid or payable to non-Affiliates, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Permitted Asset Sale during the tax period the sale occurs and (b) a reasonable reserve for any recourse for a breach of the representations and warranties made by Company to the purchaser in connection with such Permitted Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.
“Net Cash Proceeds” shall mean with respect to any equity issuance, the cash proceeds thereof, net of all taxes and reasonable investment banker’s fees, underwriting discounts or commissions, reasonable legal fees and other reasonable costs and other expenses incurred in connection therewith.
“New Product” has the meaning set forth in the definition of “Material Underwriting Policy Change.”
“No Bank Statement LOC Receivable” means, as of any date of determination, any LOC Receivable which as of such date is not a Bank Statement LOC Receivable.

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“Non-Consenting Lender” as defined in Section 2.19.
“Non-Creditworthy Lender” as defined in Section 2.19.
“Non‑US Lender” as defined in Section 2.16(d)(i).
“Notice of Amendment” as defined in Section 6.18.
“Obligations” means all obligations of every nature of Company from time to time owed to the Agents (including former Agents), the Lenders or any of them, in each case under any Credit Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Company, would have accrued on any Obligation, whether or not a claim is allowed against Company for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.
“OnDeck LOC” has the meaning given to the term “Line of Credit (LOC)” product as described in the underwriting guidelines portion of the Underwriting Policies.
“On Deck Express Product” has the meaning given to the term “ODX” product as described in the underwriting guidelines portion of the Underwriting Policies.
“On Deck Score” means that numerical value ranging from 250 to 700 that represents Holdings’ evaluation of the creditworthiness of a business and its likelihood of default on a commercial loan or other similar credit arrangement generated by “version 4” of the proprietary methodology developed and maintained by Holdings, as such methodology is applied in accordance with the other aspects of the Underwriting Policies, and as such methodology and other aspects of the Underwriting Policies may be revised and updated from time to time in accordance with Section 6.17.
“Online Product” or “On Deck Online” has the meaning given to the term “ODO” product as described in the underwriting guidelines portion of the Underwriting Policies.
“Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by‑laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization or certificate of formation, as amended, and its operating agreement, as amended, including, in the case of Company, the Limited Liability Agreement. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Original Borrowing Base Certificate” has the meaning set forth in Section 2.1(c)(ii).

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“Original Closing Date” means October 23, 2013.
“Other Connection Taxes” means, with respect to any Affected Party, Taxes imposed as a result of a present or former connection between such Affected Party and the jurisdiction imposing such Tax (other than connections arising from such Affected Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Revolving Loan or Credit Document).
“Outstanding Principal Balance” means, (i) as of any date with respect to any Term Receivable, the unpaid principal balance of such Term Receivable as set forth on the Servicer’s books and records as of the close of business on the immediately preceding Business Day, and (ii) as of any date with respect to any LOC Receivable, the Combined LOC OPB of such LOC Receivable (without duplication); provided, however, that the Outstanding Principal Balance of any Pledged Receivable that has become a Charged-Off Receivable will be zero.
“Participant Register” as defined in Section 9.6(h).
“Paying Agent” as defined in the preamble hereto.
“Payment” means, with respect to any Receivable, the required scheduled loan payment in respect of such Receivable, as set forth in the applicable Receivable Agreement.
“Payment Dates” means, with respect to any Receivable, the date a payment is due in accordance with the Receivable Agreement with respect to such Receivable as in effect as of the date of determination.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted Asset Sale” means so long as all Net Asset Sale Proceeds are contemporaneously remitted to the Collection Account, (a) the sale by Company of Receivables to Holdings pursuant to any repurchase obligations of Holdings under the Asset Purchase Agreement, (b) the sale by the Servicer on behalf of Company of Charged-Off Receivables to any third party in accordance with the Servicing Standard, provided, that such sales are made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title and absence of liens on the Charged-Off Receivables, and the status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale), (c) the sale by Company of Term Receivables (x) to Holdings who immediately thereafter sells such Term Receivables to a special-purpose Subsidiary of Holdings or (y) directly to a special-purpose Subsidiary of Holdings, in either case in connection with a term securitization transaction involving the issuance of securities rated at least investment grade by one or more nationally recognized statistical rating organizations and such Term Receivables and special-purpose Subsidiary so long as, in either case, (i) the amount received by Company therefore and deposited into the Collection Account is no less than the

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aggregate Outstanding Principal Balances of such Term Receivables, (ii) such sale is made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title, absence of liens on such Term Receivables, status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale), (iii) the manner in which such Term Receivables were selected by Company does not adversely affect the Lenders, (iv) the agreement pursuant to which such Term Receivables were sold to Holdings or such special-purpose Subsidiary, as the case may be, contains an obligation on the part of Holdings or such special-purpose Subsidiary to not file or join in filing any involuntary bankruptcy petition against Company prior to the end of the period that is one year and one day after the payment in full of all Obligations of Company under this Agreement and not to cooperate with or encourage others to file involuntary bankruptcy petitions against Company during the same period, and (v) unless otherwise waived by the Requisite Lenders in accordance with this Agreement, on the Business Day prior to such sale, (A) the Pro Forma 15 Day Delinquency Percentage shall not be greater than the 15 Day Delinquency Percentage, before giving effect to such sale, and (B) the Pro Forma Delinquency Percentage shall not be greater than the Delinquency Percentage, before giving effect to such sale, (d) the sale by the Company of Receivables with the prior written consent of the Requisite Lenders, and (e) the sale by Company of LOC Receivables (x) to Holdings who immediately thereafter sells such Receivables to a special-purpose Subsidiary of Holdings or (y) directly to a special-purpose Subsidiary of Holdings, in either case in connection with (i) a term securitization transaction occurring from and after the twelve-month anniversary of the Third Amendment Effective Date involving the issuance of securities rated at least investment grade by one or more nationally recognized statistical rating organizations and such LOC Receivables and special-purpose Subsidiary or (ii) a financing transaction occurring from and after the twelve-month anniversary of the Third Amendment Effective Date involving such LOC Receivables and special-purpose Subsidiary so long as, in either case, (A) the amount received by Company therefore and deposited into the Collection Account is no less than the aggregate Outstanding Principal Balances of such LOC Receivables, (B) such sale is made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title, absence of liens on such LOC Receivables, status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale), (C) the manner in which such LOC Receivables were selected by Company does not adversely affect the Lenders, (D) the agreement pursuant to which such LOC Receivables were sold to Holdings or such special-purpose Subsidiary, as the case may be, contains an obligation on the part of Holdings or such special-purpose Subsidiary to not file or join in filing any involuntary bankruptcy petition against Company prior to the end of the period that is one year and one day after the payment in full of all Obligations of Company under this Agreement and not to cooperate with or encourage others to file involuntary bankruptcy petitions against Company during the same period, and (E) unless otherwise waived by the Requisite Lenders in accordance with this Agreement, on the Business Day prior to such sale, (1) the Pro Forma 15 Day Delinquency Percentage shall not be greater than the 15 Day Delinquency Percentage, before giving effect to such sale, and (2) the Pro Forma Delinquency Percentage shall not be greater than the Delinquency Percentage, before giving effect to such sale.
“Permitted Discretion” means, with respect to any Person, a determination or judgment made by such Person in good faith in the exercise of reasonable (from the perspective of a secured lender) credit or business judgment.

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“Permitted Investments” means the following, subject to qualifications hereinafter set forth: (i) obligations of, or obligations guaranteed as to principal and interest by, the U.S. government or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States of America; (ii) federal funds, unsecured certificates of deposit, time deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 365 days of any bank, the short-term debt obligations of which are rated A-1+ (or the equivalent) by each of the rating agencies and, if it has a term in excess of three months, the long-term debt obligations of which are rated AAA (or the equivalent) by each of the Moody’s and S&P; (iii) deposits that are fully insured by the Federal Deposit Insurance Corp. (FDIC); (iv) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (i) through (iii) above; and (v) such other investments as to which the Administrative Agent consent in its sole discretion.
Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the S&P’s “r” symbol (or any other rating agency’s corresponding symbol) attached to the rating (indicating high volatility or dramatic fluctuations in their expected returns because of market risk), as well as any mortgage-backed securities and any security of the type commonly known as “strips”; (ii) shall not have maturities in excess of one year; (iii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; and (iv) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made which requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase or (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.
“Permitted Liens” means Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
“Pledged Receivables” shall have the meaning attributed to such term in the Servicing Agreement.
“Portfolio” means the Receivables purchased by Company from Holdings pursuant to the Asset Purchase Agreement.
“Portfolio Performance Covenant” means the portfolio performance covenants specified in Appendix E.

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“Prime Rate” means, as of any day, the rate of interest per annum equal to the prime rate publicly announced by the majority of the eleven largest commercial banks chartered under United States Federal or State banking law as its prime rate (or similar base rate) in effect at its principal office. The determination of such eleven largest commercial banks shall be based upon deposits as of the prior year-end, as reported in the American Banker or such other source as may be reasonably selected by the Paying Agent.
“Principal Office” means, for Administrative Agent, Administrative Agent’s “Principal Office” as set forth on Appendix B, or such other office as Administrative Agent may from time to time designate in writing to Company and each Lender; provided, however, that for the purpose of making any payment on the Obligations or any other amount due hereunder or any other Credit Document, the Principal Office of Administrative Agent shall be as set forth on Appendix B (or such other location within the City and State of New York as Administrative Agent may from time to time designate in writing to Company and each Lender).
“Processor” means, with respect to any Receivable, a Person engaged in the business of processing credit card payments that has been engaged by the related Receivables Obligor to provide processing services with respect to designated future Credit Card Payments to be paid to such Receivables Obligor.
“Processor Agreement” means an agreement between a Receivables Obligor and a Processor with respect to the processing of certain Credit Card Payments due to such Receivables Obligor.
“Processing Bank” means, with respect to any Receivable, a bank that has been engaged by the Servicer to collect Credit Card Payments from the related Processor and to remit such funds to the applicable Receivables Obligor’s Transfer Accounts.
“Pro Forma 15 Day Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, after giving pro forma effect to such Permitted Asset Sale, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) that had a Missed Payment Factor of (x) with respect to Daily Pay Receivables, fifteen (15) or higher, or (y) with respect to Weekly Pay Receivables, three (3) or higher, in each case, as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.
“Pro Forma Delinquency Percentage” means, as of one Business Day prior to any Permitted Asset Sale described in clause (c) of the definition thereof, after giving pro forma effect to such Permitted Asset Sale, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (that are not Charged-Off Receivables) that are Pledged Receivables as of such Business Day, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Business Day.

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“Pro Rata Share” means with respect to any Lender, the percentage obtained by dividing (i) the Revolving Exposure of that Lender by (ii) the aggregate Revolving Exposure of all Lenders.
“Q3 Vintage Pool” means the pool of Term Receivables originated by Holdings or the Receivables Account Bank during the first, second and third Fiscal Quarters of 2013 and acquired by Company.
“Re-Aged” means returning a delinquent, open-end account to current status without collecting the total amount of principal, interest, and fees that are contractually due.
“Receivable Agreements” means (i) with respect to any Term Receivable, a Business Loan and Security Agreement, a Business Loan and Security Agreement Supplement or Loan Summary, the Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debit), in each case, in substantially the forms attached to the Undertakings Agreement and as may be amended, supplemented or modified from time to time in accordance with the terms of this Agreement, and, if applicable, the Transfer Account Loan Documentation related to such Receivable, and the other documents related thereto to which the applicable Receivables Obligor is a party, and (ii) with respect to any LOC Receivable, a Business Line of Credit Agreement, a Business Line of Credit Agreement Supplement, the Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debit), in each case, in substantially the forms attached to the Undertakings Agreement and as may be amended, supplemented or modified from time to time in accordance with the terms of this Agreement, and the other documents related thereto to which the applicable Receivables Obligor is a party,
“Receivable File” means (i)  with respect to any Receivable, copies of each applicable document listed in the definition of “Receivable Agreements,” (ii) with respect to any Term Receivable, the UCC financing statement, if any, filed against the Receivables Obligor in connection with the origination of such Term Receivable and (iii) with respect to any Receivable, copies of each of the documents required by, and listed in, the Document Checklist attached to the Custodial Agreement, each of which may be in electronic form.
“Receivable Yield” means, with respect to any Receivable, the imputed interest rate that is calculated on the basis of the expected aggregate annualized rate of return (calculated inclusive of all interest and fees (other than any Upfront Fees)) of such Receivable over the life of such Receivable.
Such calculation shall assume:
(i)    52 Payment Dates per annum, for Weekly Pay Receivables;
(ii)    252 Payment Dates per annum, for Daily Pay Receivables that were originated on or after July 1, 2013; and
(iii)    257 Payment Dates per annum, for Daily Pay Receivables that were originated prior to July 1, 2013 (or such other number of Payment Dates set forth in the

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Underwriting Policies for a 12-month term Receivable). An example of the foregoing calculation is set forth on Appendix F hereto.
“Receivables” means any (i) loan or similar contract or (ii) “payment intangible” (as defined in the UCC) representing a fully disbursed portion of an OnDeck LOC, in each case with a Receivables Obligor pursuant to which Holdings or the Receivables Account Bank extends credit to such Receivables Obligor pursuant to the applicable Receivable Agreements, including if applicable all rights under any and all security documents or supporting obligations related thereto, including the applicable Receivable Agreements.
“Receivables Account Bank” means, with respect to any Receivables, (i) BofI Federal Bank, a federal savings institution, (ii) Celtic Bank, a Utah chartered industrial bank or (iii) any other institution that (a) is organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities and that originates and owns Receivables for Holdings pursuant to a Receivables Program Agreement, and (b) has been approved by the Requisite Lenders in their Permitted Discretion as an originator for purposes of this Agreement.
“Receivables Guarantor” means with respect to any Receivables Obligor, (a) each holder of the Capital Stock (or equivalent ownership or beneficial interest) of such Receivables Obligor in the case of a Receivables Obligor which is a corporation, partnership, limited liability company, trust or equivalent entity, who has agreed to unconditionally guarantee all of the obligations of the related Receivables Obligor under the related Receivable Agreements or (b) the natural person operating as the Receivables Obligor, if the Receivables Obligor is a sole proprietor.
“Receivables Obligor” means with respect to any Receivable, the Person or Persons obligated to make payments with respect to such Receivable, excluding any Receivables Guarantor referred to in clause (a) of the definition of “Receivables Guarantor.”
“Receivables Program Agreement” means the (i) Master Business Loan Marketing Agreement, dated as of July 19, 2012, between Holdings and BofI Federal Bank, a federal savings institution (as amended, modified or supplemented from time to time with the consent of the Requisite Lenders to the extent required pursuant to Section 6.16) and (ii) any other agreement between Holdings and a Receivables Account Bank pursuant to which Holdings may refer applicants for small business loans conforming to the Underwriting Policies to such Receivables Account Bank and such Receivables Account Bank has the discretion to fund or not fund a loan to such applicant based on its own evaluation of such applicant and containing those provisions as are reasonably necessary to ensure that the transfer of small business loans by such Receivables Account Bank to Holdings thereunder are treated as absolute sales (as amended, modified or supplemented from time to time with the consent of the Requisite Lenders to the extent required pursuant to Section 6.16).
“Receivables Purchase Agreement” means a Bill of Sale and Assignment of Assets, by and between Holdings and SBAF, in substantially the form of Exhibit I hereto.
“Register” as defined in Section 2.4(b).

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“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Related Agreements” means, collectively the Organizational Documents of Company, each Receivables Program Agreement and the Transfer Account Loan Documentation.
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Related Security” shall have the meaning attributed to such term in the Asset Purchase Agreement.
“Replacement Borrowing Base Certificate” has the meaning set forth in Section 2.1(c)(ii).
“Replacement Lender” as defined in Section 2.19.
“Requirements of Law” means as to any Person, any law (statutory or common), treaty, rule, ordinance, order, judgment, Governmental Authorization, or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Requisite Lenders” means one or more Lenders having or holding Revolving Exposure and representing more than 50% of the sum of the aggregate Revolving Exposure of all Lenders.
“Reserve Account” means a Deposit Account with account number OD1302.2 at Deutsche Bank Trust Company Americas in the name of Company.
“Reserve Account Funding Amount” means, on any day during a Reserve Account Funding Period, the excess, if any, of $170,000 over the amount then on deposit in the Reserve Account.
“Reserve Account Funding Event” means, as of any date of determination with respect to the Monthly Period most recently ended, that any one of the following events shall have occurred with respect to such Monthly Period: (a) the Average Term Excess Spread was less than 25.0%; (b) the Maximum Delinquency Rate was greater than 14.0%; or (c) the Maximum 15 Day Delinquency Rate was greater than 7.75%. Notwithstanding the foregoing, the Reserve Account Funding Event shall be deemed to no longer exist from and after any date upon which the Reserve Account Funding Event Cure has occurred (provided that only one Reserve Account Funding Event Cure shall be permitted hereunder).
“Reserve Account Funding Event Cure” means, as of any date of determination with respect to the three Monthly Periods most recently ended, that each of the following conditions has been satisfied with respect to each such Monthly Period after the occurrence of a Reserve Account Funding Event: (a) the Average Term Excess Spread was greater than 25.0%; (b) the

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Maximum Delinquency Rate was less than 14.0%; (c) the Maximum 15 Day Delinquency Rate was less than 7.75% and (d) no Reserve Account Funding Event Cure shall have previously occurred.
“Reserve Account Funding Period” means the period commencing on the first day after the Original Closing Date on which a Reserve Account Funding Event shall occur and ending on the first day thereafter on which the Reserve Account Funding Event Cure shall occur, and the period commencing on the first day thereafter on which another Reserve Account Funding Event shall occur and ending on the Termination Date.
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Company now or hereafter outstanding, except a dividend payable solely in shares of Capital Stock to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Company now or hereafter outstanding; and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Company now or hereafter outstanding.
“Revolving Availability” means, as of any date of determination, the amount, if any, by which the Borrowing Base exceeds the Total Utilization of Revolving Commitments.
“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Revolving Loan and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of the Third Amendment Effective Date is $75,000,000. The Revolving Commitment of each Lender will be equal to zero on the Revolving Commitment Termination Date.
“Revolving Commitment Period” means the period from the Original Closing Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date” means the earliest to occur of (i) May 22, 2017; (ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.9(b); and (iii) the date of the termination of the Revolving Commitments pursuant to Section 7.1.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii) after the termination of the Revolving Commitments, the aggregate outstanding principal amount of the Revolving Loans of that Lender.
“Revolving Loan” means a Revolving Loan made by a Lender to Company pursuant to Section 2.1.

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“Revolving Loan Note” means a promissory note in the form of Exhibit B hereto, as it may be amended, supplemented or otherwise modified from time to time.
“Rolling 3-Month Average Maximum 15 Day Delinquency Rate” means, for any Monthly Period, the arithmetic average Maximum 15 Day Delinquency Rate for such Monthly Period and the two (2) Monthly Periods immediately preceding such Monthly Period.
“Rolling 3-Month Average Maximum Delinquency Rate” means, for any Monthly Period, the arithmetic average Maximum Delinquency Rate for such Monthly Period and the two (2) Monthly Periods immediately preceding such Monthly Period.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its permitted successors and assigns.
“SBAF” means Small Business Asset Fund 2009 LLC, a Delaware limited liability company.
“SBAF Receivables” means certain Receivables (i) previously owned by SBAF, and (ii) sold by SBAF to Holdings, and immediately thereafter sold by Holdings to Company, either prior to (A) the Second Amendment Effective Date or on a single Transfer Date occurring within sixty (60) days of the Second Amendment Effective Date, or (B) the Third Amendment Effective Date or on a single Transfer Date occurring within sixty (60) days of the Third Amendment Effective Date.
“SEC” means the Securities and Exchange Commission.
“Second Amendment Effective Date” means December 19, 2014.
“Secured Parties” shall have the meaning attributed to such term in the Security Agreement.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit‑sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Account” means a “securities account” (as defined in the UCC).
“Securities Account Control Agreement” shall have the meaning attributed to such term in the Security Agreement.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

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“Security Agreement” means that certain Security Agreement dated as of the Original Closing Date between Company and the Collateral Agent, as it may be amended, restated or otherwise modified from time to time.
“Seller” has the meaning set forth in the Asset Purchase Agreement.
“Servicer” means Holdings, in its capacity as the “Servicer” under the Servicing Agreement, and, after any removal or resignation of Holdings as the “Servicer” in accordance with the Servicing Agreement, any Successor Servicer.
“Servicer Default” shall have the meaning attributed to such term in the Servicing Agreement.
“Servicing Agreement” means that certain Amended and Restated Servicing Agreement dated as of the Second Amendment Effective Date between Company, Holdings and the Administrative Agent, as it may be amended, restated or otherwise modified from time to time, and, after the appointment of any Successor Servicer, the Successor Servicing Agreement to which such Successor Servicer is a party, as it may be amended, restated or otherwise modified from time to time.
“Servicing Fees” shall have the meaning attributed to such term in the Servicing Agreement; provided, however that, after the appointment of any Successor Servicer, the Servicing Fees shall mean the Successor Servicer Fees payable to such Successor Servicer.
“Servicing Reports” means the Servicing Reports delivered pursuant to the Servicing Agreement, including the Monthly Servicing Report.
“Servicing Standard” shall have the meaning attributed to such term in the Servicing Agreement.
“Servicing Transition Expenses” means all reasonable, out-of-pocket costs and expenses incurred in connection with the assumption of servicing of the Pledged Receivables by a Successor Servicer after the delivery of a Termination Notice to the Servicer.
“Servicing Transition Period” means the period commencing on the giving of a Termination Notice and ending such number of days thereafter as shall be determined by the Administrative Agent in its Permitted Discretion.
“Solvent” means, with respect to Company or Holdings, that as of the date of determination, both (i) (a) the sum of such entity’s debt (including contingent liabilities) does not exceed the present fair saleable value of such entity’s present assets; (b) such entity’s capital is not unreasonably small in relation to its business as contemplated on the Original Closing Date; and (c) such entity has not incurred and 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 (whether at maturity or otherwise); and (ii) such entity is “solvent” within the meaning given that term and similar terms under laws applicable to it relating to fraudulent transfers and conveyances. For

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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 (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Specified Event of Default” means any Event of Default occurring under Sections 7.1(a), (f), (g), (h), (j), (l), (m), (o) or (p); provided, however, that an Event of Default occurring under Section 7.1(m) shall not constitute a Specified Event of Default if the Servicer Default triggering such Event of Default resulted only (x) from the occurrence of an Event of Default or (y) the breach of a Financial Covenant unless such breach was the result of Tangible Net Worth being less than $15,000,000 as of the last day of any Fiscal Quarter.
“SPV Indebtedness” means any secured Indebtedness incurred by a special-purpose Subsidiary of Holdings from time to time solely to finance a portfolio of Receivables.
“Subordinated Indebtedness” means any Indebtedness of Holdings that is fully subordinated to all senior indebtedness for borrowed money of Holdings, as to right and time of payment and as to any other rights and remedies thereunder, including, an agreement on the part of the holders of such Indebtedness that the maturity of such Indebtedness cannot be accelerated prior to the maturity date of such senior indebtedness for borrowed money.
“Subsequent LOC Advance” means, with respect to any LOC Receivable relating to a particular OnDeck LOC offered to the related Receivables Obligor, an additional LOC Receivable representing a subsequent advance under such OnDeck LOC.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
“Successor Servicer” shall have the meaning attributed to such term in the Servicing Agreement.
“Successor Servicing Agreement” shall have the meaning attributed to such term in the Servicing Agreement.
“Successor Servicer Fees” means the servicing fees payable to a Successor Servicer pursuant to a Successor Servicing Agreement.

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“Tangible Net Worth” means, as of any day, the total of (a) Holdings’ total stockholders’ equity, minus (b) all Intangible Assets of Holdings, minus (c) all amounts due to Holdings from its Affiliates, plus (d) any Convertible Indebtedness, plus (e) any Warranty Liability.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed, including any interest, additions to tax or penalties applicable thereto.
“Term BB Concentration Percentage” means the amount expressed as a percentage equal to (i) the average daily dollar amount Borrowing Base generated from the Term Receivables for such Monthly Period; over (ii) the average daily aggregate Borrowing Base for such Monthly Period.
“Term Excess Spread” means, with respect to any Monthly Period, the product of (a) 12 times (b) the percentage equivalent of a fraction (i) the numerator of which is the excess, if any, of (x) the Adjusted Term Interest Collections of all Eligible Receivables that are Term Receivables for such Monthly Period over (y) the aggregate Outstanding Principal Balance of all Pledged Receivables that are Term Receivables that became Defaulted Receivables during such Monthly Period and (ii) the denominator of which is the average daily Outstanding Principal Balance of all Pledged Receivables that are Term Receivables for such Monthly Period.
“Term Portfolio Weighted Average Receivable Yield” means as of any date of determination, the quotient, expressed as a percentage, obtained by dividing (a) the sum, for all Eligible Receivables that are Term Receivables, of the product of (i) the Receivable Yield for each such Term Receivable multiplied by (ii) the Outstanding Principal Balance of such Term Receivable as of such date, by (b) the Eligible Term Portfolio Outstanding Principal Balance as of such date.
“Term Receivable” means a Receivable that is not an LOC Receivable.
“Terminated Lender” as defined in Section 2.19.
“Termination Date” means the date on, and as of, which (a) all Revolving Loans have been repaid in full in cash, (b) all other Obligations (other than contingent indemnification obligations for which demand has not been made) under this Agreement and the other Credit Documents have been paid in full in cash or otherwise completely discharged, and (c) the Revolving Commitment Termination Date shall have occurred.
“Termination Notice” shall have the meaning attributed to such term in the Servicing Agreement.
“Third Amendment Effective Date” means the date of this Agreement.
“Total Utilization of Revolving Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding Revolving Loans.

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“Transaction Costs” means the fees, costs and expenses payable by Holdings or Company on or within ninety (90) days after the Third Amendment Effective Date in connection with the transactions contemplated by the Credit Document Amendments.
“Transfer Account” means an account in the name of a Receivables Obligor maintained at Rocky Mountain Bank & Trust or Kenney Bank & Trust (or any successor financial institution or financial institutions approved by the Administrative Agent in its Permitted Discretion, serving substantially the same purpose) where all Credit Card Payments attributable to such Receivables Obligor are paid.
“Transfer Account Loan Documentation” means, with respect to any Transfer Account Receivable, collectively, the documentation related to such Receivable and the other documents related thereto.
“Transfer Account Receivable” means any Receivable with respect to which (i) the related Receivables Obligor has instructed the related Processor, pursuant to the related Processor Agreement, to remit certain Credit Card Payments to the designated Transfer Account for such Receivables Obligor, (ii) the related Processor has agreed, pursuant to the related Processor Agreement, to remit such Credit Card Payments to the designated Transfer Account for such Receivables Obligor, and (iii) the related Receivables Obligor has authorized Servicer, pursuant to the related Receivable Agreement, to debit from such Receivables Obligor’s Transfer Account on each Business Day the amounts owing under the related Receivable Agreement.
“Transfer Date” has the meaning assigned to such term in the Asset Purchase Agreement.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“UCC Agent” means Corporation Service Company, a Delaware corporation, in its capacity as agent for Holdings or other entity or entities providing secured party representation services for Holdings from time to time.
“Undertakings Agreement” means that certain Second Amended and Restated Undertakings Agreement, dated as of May 22, 2015, as the same may be amended, restated, supplemented or otherwise modified from time to time by and among Holdings, the Company, the lenders party thereto, the Paying Agent and the Administrative Agent.
“Underwriting Policies” means the credit policies and procedures of Holdings, including the underwriting guidelines and OnDeck Score methodology, and the collection policies and procedures of Holdings, in each case in effect as of the Third Amendment Effective Date and in the form attached to the Undertakings Agreement, as such policies, procedures, guidelines and methodologies may be amended from time to time in accordance with Section 6.17.
“Upfront Fees” means, with respect to any Receivable, the sum of any fees charged by Holdings or the Receivables Account Bank, as the case may be, to a Receivables Obligor in

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connection with the disbursement of a loan, as set forth in the Receivable Agreement related to such Receivable, which are deducted from the initial amount disbursed to such Receivables Obligor, including the “Origination Fee” set forth on the applicable Receivable Agreement.
“U.S. Term Receivable” means a Term Receivable originated in the United States.
“Vintage Pool” means, as of any date of determination, the pool of Term Receivables originated by Holdings or the Receivables Account Bank and acquired by Company during any completed Fiscal Quarter. The Q3 Vintage Pool shall also be deemed a Vintage Pool for all purposes hereunder.
“Warranty Liability” means, as of any day, the aggregate stated balance sheet fair value of all outstanding warrants exercisable for redeemable convertible preferred shares of Holdings determined in accordance with GAAP.
“Weekly Pay Receivable” means any Receivable for which a Payment is generally due once per week (and, for the avoidance of doubt, each LOC Receivable shall be a Weekly Pay Receivable).
1.2    Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Company to Lenders pursuant to Section 5.1(a) and Section 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(d), if applicable). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either Company, the Requisite Lenders or the Administrative Agent shall so request, the Administrative Agent, the Lenders and Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP and accounting principles and policies in conformity with those used to prepare the Historical Financial Statements and (b) Company shall provide to the Administrative Agent and each Lender financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. If Administrative Agent, Company and the Administrative Agent cannot agree upon the required amendments within thirty (30) days following the date of implementation of any applicable change in GAAP, then all financial statements delivered and all calculations of financial covenants and other standards and terms in accordance with this Agreement and the other Credit Documents shall be prepared, delivered and made without regard to the underlying change in GAAP.
1.3    Interpretation, etc.
Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may

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be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
1.4    Amendment and Restatement. In order to facilitate the Amendment and Restatement:
(a)    Each of the parties hereto hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended and restated to the extent provided by this Agreement.
(b)    All of the “Obligations” (as defined in the Existing Credit Agreement, the “Existing Obligations”) outstanding under the Existing Credit Agreement and other “Credit Documents” (as defined in the Existing Credit Agreement, the “Existing Credit Documents”) shall continue as Obligations hereunder to the extent not repaid on the Third Amendment Effective Date, and this Agreement is given as a substitution of and modification of, to the extent provided herein, and not as a payment of or novation of, the indebtedness, liabilities and Existing Obligations of the Company under the Existing Credit Agreement, and neither the execution and delivery of this Agreement nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation or rescission of the Existing Credit Agreement or any obligations hereunder.
SECTION 2.    LOANS
2.1    Revolving Loans.
(a)    Revolving Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, including, without limitation delivery of an updated Borrowing Base Certificate and Borrowing Base Report pursuant to Section 3.3(a)(i), each Lender severally agrees to make Revolving Loans to Company in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided that no Lender shall make any such Revolving Loan or portion thereof to the extent that, after giving effect to such Revolving Loan:
(i)    the Total Utilization of Revolving Commitments exceeds the Borrowing Base; or
(ii)    the aggregate outstanding principal amount of the Revolving Loans funded by such Lender hereunder shall exceed its Revolving Commitment.
(b)    Amounts borrowed pursuant to Section 2.1(a) may be repaid and reborrowed during the Revolving Commitment Period, and any repayment of the Revolving Loans (other than (i) pursuant to Section 2.10 (which circumstance shall be governed by Section 2.10), (ii) on any Interest Payment Date upon which no Event of Default has occurred and is continuing (which

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circumstances shall be governed by Section 2.12(a)) or (iii) on a date upon which an Event of Default has occurred and is continuing (which circumstance shall be governed by Section 2.12(b))) shall be applied as directed by Company. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
(c)    Borrowing Mechanics for Revolving Loans.
(i)    Revolving Loans shall be made in an aggregate minimum amount of $100,000.
(ii)    Whenever Company desires that Lenders make Revolving Loans, Company shall deliver to Administrative Agent, the Paying Agent and the Custodian a fully executed and delivered Funding Notice no later than 11:00 a.m. (New York City time) at least two (2) Business Days in advance of the proposed Credit Date; provided, that x) the Company shall review such Funding Notice on the Business Day immediately preceding the proposed Credit Date and (y) if following such review it has determined that a Receivable would not qualify as an Eligible Receivable by virtue of clause (h) of the Eligibility Criteria not being satisfied then (1) such Receivable shall be deemed to be excluded from the Borrowing Base Certificate included in such Funding Notice (each, an “Original Borrowing Base Certificate”) (and any certification related thereto contained therein or in the Credit Documents) and (2) the Company shall deliver to Administrative Agent, the Custodian and the Paying Agent a revised Funding Notice no later than 1:00 p.m. (New York City time) at least one (1) Business Day in advance of the proposed Credit Date and such revised Funding Notice (and the corresponding Borrowing Base Certificate (each, a “Replacement Borrowing Base Certificate”)) shall be modified solely to make adjustments necessary to exclude any such Receivable that would not qualify as an Eligible Receivable by virtue of clause (h) of the Eligibility Criteria including any reductions due to any resulting Excess Concentration Amounts, if any. Each such Funding Notice shall be delivered with a Borrowing Base Certificate reflecting sufficient Revolving Availability for the requested Revolving Loans and a Borrowing Base Report.
(iii)    Each Lender shall make the amount of its Revolving Loan available to the Paying Agent not later than 1:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, and the Paying Agent shall remit such funds to the Company not later than 3:00 p.m. (New York City time) by wire transfer of same day funds in Dollars to the account of Company designated in the related Funding Notice.
(iv)    Company may borrow Revolving Loans pursuant to this Section 2.1, purchase Eligible Receivables pursuant to Section 2.11(c)(vii)(C) and/or repay Revolving Loans pursuant to Section 2.11(c)(vii)(B) no more than one (1) time per week in the aggregate, provided, that the Company may borrow Revolving Loans pursuant to this Section 2.1, purchase Eligible Receivables pursuant to Section 2.11(c)(vii)(C) and/or repay Revolving Loans pursuant to Section 2.11(c)(vii)(B) one (1) additional time per week with

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the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned).
(d)    Deemed Requests for Revolving Loans to Pay Required Payments. All payments of principal, interest, fees and other amounts payable to Lenders under this Agreement or any Credit Document may be paid from the proceeds of Revolving Loans, made pursuant to a Funding Notice from Company pursuant to Section 2.1(c).
2.2    Pro Rata Shares. All Revolving Loans shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Revolving Loan requested hereunder nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Revolving Loan requested hereunder.
2.3    Use of Proceeds. The proceeds of the Revolving Loans made after the Original Closing Date shall be applied by Company to (a) finance the acquisition of Eligible Receivables from Holdings pursuant to the Asset Purchase Agreement, (b) pay Transaction Costs and ongoing fees and expenses of Company hereunder and (c) in the case of Revolving Loans made pursuant to Section 2.1(d), to make payments of principal, interest, fees and other amounts owing to the Lenders under the Credit Documents. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.
2.4    Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a)    Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Company to such Lender, including the amounts of the Revolving Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Company, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in respect of any applicable Revolving Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern absent manifest error.
(b)    Register. The Paying Agent shall maintain at its Principal Office a register for the recordation of the names and addresses of the Lenders and the Revolving Commitments and Revolving Loans of each Lender from time to time (the “Register”). The Register shall be available for inspection by Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Paying Agent shall record in the Register the Revolving Commitments and the Revolving Loans, and each repayment or prepayment in respect of the principal amount of the Revolving Loans, and any such recordation shall be conclusive and binding on Company and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in respect of any Revolving Loan. Company hereby designates the entity serving as the Paying

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Agent to serve as Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.4, and Company hereby agrees that, to the extent such entity serves in such capacity, the entity serving as the Paying Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”
(c)    Revolving Loan Notes. If so requested by any Lender by written notice to Company (with a copy to Administrative Agent) at any time after the Original Closing Date, Company shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 9.6), promptly after Company’s receipt of such notice) a Revolving Loan Note to evidence such Lender’s Revolving Loans.
2.5    Interest on Loans.
(a)    Except as otherwise set forth herein, the Revolving Loans shall accrue interest daily in an amount equal to the product of (A) the unpaid principal amount thereof as of such day and (B) the LIBO Rate for such period plus the Applicable Margin.
(b)    Interest payable pursuant to Section 2.5(a) shall be computed on the basis of a 360‑day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Revolving Loan, the date of the making of such Revolving Loan or the first day of an Interest Period applicable to such Revolving Loan shall be included, and the date of payment of such Revolving Loan or the expiration date of an Interest Period applicable to such Revolving Loan shall be excluded; provided, if a Revolving Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Revolving Loan.
(c)    Except as otherwise set forth herein, interest on each Revolving Loan shall be payable in arrears (i) on and to each Interest Payment Date; (ii) upon any prepayment of that Revolving Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity.
2.6    Default Interest. Subject to Section 9.18, upon the occurrence and during the continuance of an Event of Default, the principal amount of all Revolving Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Revolving Loans not paid on the Interest Payment Date for the Interest Period in which such interest accrued or any fees or other amounts owed hereunder, shall thereafter bear interest (including post‑petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable in accordance with Section 2.12(b) at a rate that is 3.0% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Revolving Loans (or, in the case of any such fees and other amounts, at a rate which is 3.0% per annum in excess of the interest rate otherwise payable hereunder) (the “Default Interest Rate”). Payment or acceptance of the increased rates of interest provided for in this Section 2.6 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.7    Fees.

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(a)    Company agrees to pay to the Person entitled to payment thereunder the amounts set forth in the Fee Letter.
(b)    All fees referred to in Section 2.7(a) shall be calculated on the basis of a 360‑day year and the actual number of days elapsed and shall be payable monthly in arrears on (i) each Interest Payment Date during the Revolving Commitment Period, commencing in June 2015, and (ii) on the Revolving Commitment Termination Date.
2.8    Revolving Commitment Termination Date. Company shall repay the Revolving Loans in full on or before the Revolving Commitment Termination Date.
2.9    Voluntary Commitment Reductions.
(a)    [Reserved].
(b)    Subject to the payment of any amounts set forth in Section 2.9(d), Company may, upon not less than three (3) Business Days’ prior written notice to Administrative Agent, at any time and from time to time terminate in whole or permanently reduce in part the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided, any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
(c)    Company’s notice shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Company’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its applicable Pro Rata Share thereof.
(d)    Call Protection. If Company voluntarily reduces or terminates any Revolving Commitments as provided in Section 2.9(b), Company shall pay to Paying Agent, on behalf of the Lenders whose Revolving Commitments were terminated or reduced, on the date of such reduction or termination, the amounts (if any) described in the Undertakings Agreement.
2.10    Borrowing Base Deficiency. Company shall prepay the Revolving Loans within two (2) Business Day of the earlier of (i) an Authorized Officer, the Chief Financial Officer (or in each case, the equivalent thereof) of Company becoming aware that a Borrowing Base Deficiency exists and (ii) receipt by Company of notice from any Agent or any Lender that a Borrowing Base Deficiency exists, in each case in an amount equal to such Borrowing Base Deficiency, which shall be applied to prepay the Revolving Loans as necessary to cure any Borrowing Base Deficiency.
2.11    Controlled Accounts.
(a)    Company shall establish and maintain cash management systems reasonably acceptable to the Administrative Agent, including, without limitation, with respect to blocked account arrangements. Other than a cash management deposit account (the “Funding Account”)

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maintained at the Paying Agent into which proceeds of Revolving Loans may be funded at the direction of Company, Company shall not establish or maintain a Deposit Account or Securities Account other than a Controlled Account and Company shall not, and shall cause Servicer not to deposit Collections or proceeds thereof in a Securities Account or Deposit Account which is not a Controlled Account (provided, that, inadvertent and non-reoccurring errors by Servicer in applying such Collections or proceeds that are promptly, and in any event within two (2) Business Days after Servicer or Company has (or should have had in the exercise of reasonable diligence) knowledge thereof, cured shall not be considered a breach of this covenant). All Collections and proceeds of Collateral shall be subject to an express trust for the benefit of Collateral Agent on behalf of the Secured Parties and shall be delivered to Lenders for application to the Obligations or any other amount due under any other Credit Document as set forth in this Agreement.
(b)    On or prior to the Original Closing Date, Company caused to be established and shall thereafter cause to be maintained, (i) a trust account (or sub-accounts) in the name of Company and under the sole dominion and control of, the Collateral Agent designated as the “Collection Account” in each case bearing a designation clearly indicating that the funds and other property credited thereto are held for Collateral Agent for the benefit of the Lenders and subject to the applicable Securities Account Control Agreement and (ii) a Deposit Account into which the proceeds of all Pledged Receivables, including by automatic debit from Receivables Obligors’ operating accounts, shall be deposited in the name of Company designated as the “Lockbox Account” as to which the Collateral Agent has sole dominion and control over such account for the benefit of the Secured Parties within the meaning of Section 9-104(a)(2) of the UCC pursuant to the Lockbox Account Control Agreement. The Lockbox Account Control Agreement will provide that all funds in the Lockbox Account will be swept daily into the Collection Account.
(c)    Lockbox System.
(i)    Company has established pursuant to the Lockbox Account Control Agreement and the other Control Agreements for the benefit of the Collateral Agent, on behalf of the Secured Parties, a system of lockboxes and related accounts or deposit accounts as described in Sections 2.11(a) and (b) (the “Lockbox System”) into which (subject to the proviso in Section 2.11(a)) all Collections shall be deposited.
(ii)    Company shall, using a method reasonably satisfactory to Administrative Agent, grant Backup Servicer (and its delegates) read-only access to the Lockbox Account.
(iii)    Company shall not establish any lockbox or lockbox arrangement without the consent of the Administrative Agent in its sole discretion, and prior to establishing any such lockbox or lockbox arrangement, Company shall cause each bank or financial institution with which it seeks to establish such a lockbox or lockbox arrangement, to enter into a control agreement with respect thereto in form and substance satisfactory to the Administrative Agent in its sole discretion.
(iv)    Without the prior written consent of the Administrative Agent, Company shall not (A) change the general instructions given to the Servicer in respect of

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payments on account of Pledged Receivables to be deposited in the Lockbox System or (B) change any instructions given to any bank or financial institution which in any manner redirects any Collections or proceeds thereof in the Lockbox System to any account which is not a Controlled Account.
(v)    Company acknowledges and agrees that (A) the funds on deposit in the Lockbox System shall continue to be collateral security for the Obligations secured thereby, and (B) upon the occurrence and during the continuance of an Event of Default, at the election of the Requisite Lenders, the funds on deposit in the Lockbox System may be applied as provided in Section 2.12(b).
(vi)    Company has directed, and will at all times hereafter direct, the Servicer to direct payment from each of the Receivables Obligors on account of Pledged Receivables directly to the Lockbox System. Company agrees (A) to instruct the Servicer to instruct each Receivables Obligor to make all payments with respect to Pledged Receivables directly to the Lockbox System and (B) promptly (and, except as set forth in the proviso to this Section 2.11(c)(vi), in no event later than two (2) Business Days following receipt) to deposit all payments received by it on account of Pledged Receivables, whether in the form of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, in the Lockbox System in precisely the form in which they are received (but with any endorsements of Company necessary for deposit or collection), and until they are so deposited to hold such payments in trust for and as the property of the Collateral Agent; provided, however, that with respect to any payment received that does not contain sufficient identification of the account number to which such payment relates or cannot be processed due to an act beyond the control of the Servicer, such deposit shall be made no later than the second Business Day following the date on which such account number is identified or such payment can be processed, as applicable.
(vii)    So long as no Event of Default has occurred and shall be continuing, Company or its designee shall be permitted to direct the investment of the funds from time to time held in the Controlled Accounts (A) in Permitted Investments and to sell or liquidate such Permitted Investments and reinvest proceeds from such sale or liquidation in other Permitted Investments (but none of the Collateral Agent, the Administrative Agent or the Lenders shall have liability whatsoever in respect of any failure by the Controlled Account Bank to do so), with all such proceeds and reinvestments to be held in the applicable Controlled Account; provided, however, that the maturity of the Permitted Investments on deposit in the Controlled Accounts shall be no later than the Business Day immediately preceding the date on which such funds are required to be withdrawn therefrom pursuant to this Agreement, (B) to repay the Revolving Loans in accordance with Section 2.1(b), provided, however, that (w) in order to effect any such repayment from a Controlled Account, Company shall deliver to the Administrative Agent and Paying Agent, a Controlled Account Voluntary Payment Notice in substantially the form of Exhibit G hereto no later than 12:00 p.m. (New York City time) on the Business Day prior to the date of any such repayment specifying the date of prepayment, the amount to be repaid and the Controlled Account from which such repayment shall be made, (x) unless otherwise approved by the Administrative

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Agent pursuant to Section 2.1(c)(iv), no more than one (1) borrowing of Revolving Loans pursuant to Section 2.1, purchase of Eligible Receivables pursuant to Section 2.11(c)(vii)(C) and/or repayment of Revolving Loans pursuant to this Section 2.11(c)(vii)(B) may be made in any calendar week and no such repayment may occur on any Interest Payment Date, (y) the minimum amount of any such repayment on the Revolving Loans shall be $100,000, and (z) after giving effect to each such repayment, an amount equal to not less than the sum of (i) during any Reserve Account Funding Period, any Reserve Account Funding Amount and (ii) the aggregate of 105% of the aggregate pro forma amount of interest, fees and expenses projected to be due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement, if any, for the remainder of the applicable Interest Period, based on the Accrued Interest Amount on such date and a projection of the interest to accrue on the Revolving Loans during the remainder of the applicable Interest Period using the same assumptions as are contained in the calculation of the Accrued Interest Amount, and the Total Utilization of Revolving Commitments on such date (after giving effect to such repayments), shall remain in the Controlled Accounts, or (C) to purchase additional Eligible Receivables pursuant to the terms and conditions of the Asset Purchase Agreement, provided, that (w) a Borrowing Base Certificate (evidencing sufficient Revolving Availability after giving effect to the release of Collections and the making of any Revolving Loan being made on such date and that after giving effect to the release of Collections, no event has occurred and is continuing that constitutes, or would result from such release that would constitute, a Borrowing Base Deficiency, Default or Event of Default) and a Borrowing Base Report shall be delivered to the Administrative Agent, the Paying Agent and the Custodian no later than 11:00 a.m. (New York City time) at least two (2) Business Days in advance of any such proposed purchase or release, (x) if such purchase of Eligible Receivables were being funded with Revolving Loans, the conditions for making such Revolving Loans on such date contained in Section 3.3(a)(iii), Section 3.3(a)(vi) and Section 3.3(a)(vii) would be satisfied as of such date, (y) Company may purchase Eligible Receivables pursuant to this Section 2.12(c)(vii)(C), repay Revolving Loans pursuant to Section 2.11(c)(vii)(B) and/or borrow Revolving Loans pursuant to Section 2.1 no more than one (1) time a week in the aggregate (unless otherwise approved by the Administrative Agent pursuant to Section 2.1(c)(iv) and provided, further, that if such withdrawal from the Collection Account does not occur simultaneously with the making of a Revolving Loan by the Lenders hereunder pursuant to the delivery of a Funding Notice, such withdrawal shall be considered a “Revolving Loan” solely for purposes of Section 2.1(c)(iv) and (z) after giving effect to such release, an amount equal to not less than the sum of (i) during any Reserve Account Funding Period, any Reserve Account Funding Amount and (ii) the aggregate of 105% of the aggregate pro forma amount of interest, fees and expenses projected to be due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement, if any, for the remainder of the applicable Interest Period, based on the Accrued Interest Amount on such date and a projection of the interest to accrue on the Revolving Loans during the remainder of the applicable Interest Period using the same assumptions as are contained in the calculation of the Accrued Interest Amount, and the Total Utilization of Revolving Commitments on such date shall remain in the Controlled Accounts.

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(viii)    All income and gains from the investment of funds in the Controlled Accounts shall be retained in the respective Controlled Account from which they were derived, until each Interest Payment Date, at which time such income and gains shall be applied in accordance with Section 2.12(a) or (b) (or, if sooner, until utilized for a repayment pursuant to Section 2.11(c)(vii)(B) or a purchase of additional Eligible Receivables pursuant to Section 2.11(c)(vii)(C)), as the case may be. As between Company and Collateral Agent, Company shall treat all income, gains and losses from the investment of amounts in the Controlled Accounts as its income or loss for federal, state and local income tax purposes.
(d)    Transfer Accounts. Company agrees to instruct the Servicer to (i) deduct from the related Transfer Account any amounts owed to Company, and (ii) remit such amounts directly to a Controlled Account by no later than the second Business Day immediately following the deposit of such amounts in the related Transfer Account. Company shall use commercially reasonable efforts to cause each applicable Receivables Obligor to cause all amounts owing in respect of a Transfer Account Receivable to be remitted directly to the applicable Transfer Account by the applicable Processor in accordance with the applicable Processor Agreement.
(e)    Reserve Account. On or prior to the Original Closing Date Company caused to be established and shall thereafter cause to be maintained a Deposit Account in the name of Company designated as the “Reserve Account” as to which the Collateral Agent has control over such account for the benefit of the Lenders within the meaning of Section 9-104(a)(2) of the UCC pursuant to the Blocked Account Control Agreement. The Reserve Account will be funded during a Reserve Account Funding Period with funds available therefor pursuant to Section 2.12(a). At any time after the giving of a Termination Notice by the Administrative Agent, the Paying Agent shall at the written direction of the Administrative Agent withdraw from time to time up to an aggregate amount of $100,000 from the Reserve Account to pay Servicing Transition Expenses during the Servicing Transition Period. On the first Interest Payment Date after the occurrence and during the continuance of an Event of Default, the Paying Agent shall at the written direction of the Administrative Agent transfer into the Collection Account for application on such Interest Payment Date in accordance with Section 2.12(b) the amount by which the amount in the Reserve Account exceeds the excess, if any, of $100,000 over the aggregate amount previously withdrawn from the Reserve Account to pay Servicing Transition Expenses. If the first Interest Payment Date after the end of a Servicing Transition Period is during the continuance of an Event of Default, the Paying Agent shall at the written direction of the Administrative Agent transfer into the Collection Account for application on such Interest Payment Date in accordance with Section 2.12(b) all amounts in the Reserve Account. If, after the first Reserve Account Funding Event to occur hereunder, a Reserve Account Funding Event Cure occurs, on the next Interest Payment Date after the occurrence of such Reserve Account Funding Event Cure the Paying Agent shall, at the direction of Company, transfer all amounts in the Reserve Account into the Collection Account for application on such Interest Payment Date in accordance with Section 2.12(a). For the avoidance of doubt, only one Reserve Account Funding Event Cure shall be permitted hereunder.
2.12    Application of Proceeds.

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(a)    Application of Amounts in the Collection Account. So long as no Event of Default has occurred and is continuing (after giving effect to the application of funds in accordance herewith on the relevant date), on each Interest Payment Date, all amounts in the Controlled Accounts (other than the Reserve Account) shall be applied by the Paying Agent based on the Monthly Servicing Report as follows:
(i)    first, to Company, on a pari passu basis, (A) amounts sufficient for Company to maintain its limited liability company existence and to pay similar expenses up to an amount not to exceed $1,000 in any Fiscal Year, and only to the extent not previously distributed to Company during such Fiscal Year pursuant to clause (ix) below, and (B) to pay any accrued and unpaid Servicing Fees;
(ii)    second, on a pari passu basis, (A) to Company to pay any accrued and unpaid Backup Servicing Fees and any accrued and unpaid fees and expenses of the Custodian and the Controlled Account Bank (in respect of the Controlled Accounts), (B) to Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents; (C) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents; and (D) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents; provided, however, that the aggregate amount of costs, fees or indemnities payable to Administrative Agent or the Collateral Agent pursuant to this clause (ii) shall not exceed $450,000 in any Fiscal Year;
(iii)    third, on a pro rata basis, to the Lenders to pay costs, fees, and accrued interest calculated in accordance with Section 2.5(a) on the Revolving Loans and expenses payable pursuant to the Credit Documents;
(iv)    fourth, on a pro rata basis, to the Lenders in an amount necessary to reduce any Borrowing Base Deficiency to zero;
(v)    fifth, to pay to Administrative Agent, Paying Agent and Collateral Agent any costs, fees or indemnities not paid in accordance with clause (ii) above;
(vi)    sixth, during a Reserve Account Funding Period, to the Reserve Account an amount equal to any Reserve Account Funding Amount;
(vii)    seventh, to pay all other Obligations or any other amount then due and payable hereunder;
(viii)    eighth, at the election of Company, on a pro rata basis, to the Lenders, as applicable, to repay the principal of the Revolving Loans; and
(ix)    ninth, prior to the Revolving Commitment Termination Date, and provided that no Borrowing Base Deficiency would occur after giving effect to such distribution, any remainder to Company or as Company shall direct consistent with Section 6.5.

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(b)    Notwithstanding anything herein to the contrary, upon the occurrence and during the continuance of an Event of Default, on each Interest Payment Date, all amounts in the Controlled Accounts shall be applied by the Paying Agent based on the Monthly Servicing Report as follows:
(i)    first, to Company, on a pari passu basis, (A) amounts sufficient for Company to maintain its limited liability company existence and to pay similar expenses up to an amount not to exceed $1,000 in any Fiscal Year, and only to the extent not previously distributed to Company during such Fiscal Year pursuant to Section 2.12(a)(i) or 2.12(a)(ix) above, and (B) to pay any accrued and unpaid Servicing Fees;
(ii)    second, on a pari passu basis, (A) to Company to pay any accrued and unpaid Backup Servicing Fees and any accrued and unpaid fees and expenses of the Custodian and the Controlled Account Bank (in respect of the Controlled Accounts), (B) to Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents (C) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents and (D) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents;
(iii)    third, on a pro rata basis, to the Lenders to pay costs, fees, and accrued interest calculated in accordance with Section 2.5(a) (and including any additional interest accruing under Section 2.6) on the Revolving Loans and expenses payable pursuant to the Credit Documents;
(iv)    fourth, on a pro rata basis, to the Lenders until the Revolving Loans are paid in full;
(v)    fifth, to pay all other Obligations or any other amount then due and payable hereunder; and
(vi)    sixth, any remainder to Company.
2.13    General Provisions Regarding Payments.
(a)    All payments by Company of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and paid not later than 12:00 p.m. (New York City time) on the date due via wire transfer of immediately available funds. Funds received after that time on such due date shall be deemed to have been paid by Company on the next Business Day (provided, that any repayment made pursuant to Section 2.11(c)(vii)(B) or any application of funds by Paying Agent pursuant to Section 2.12 on any Interest Payment Date shall be deemed for all purposes to have been made in accordance with the deadlines and payment requirements described in this Section 2.13).

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(b)    All payments in respect of the principal amount of any Revolving Loan (other than voluntary prepayments of Revolving Loans or payments pursuant to Section 2.10) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.
(c)    Paying Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, the applicable Pro Rata Share of each Lender of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Paying Agent.
(d)    Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.
(e)    Except as set forth in the proviso to Section 2.13(a), Paying Agent shall deem any payment by or on behalf of Company hereunder to them that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non‑conforming payment. Any such payment shall not be deemed to have been received by Paying Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Paying Agent shall give prompt notice via electronic mail to Company and Administrative Agent if any payment is non‑conforming. Any non‑conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 7.1(a). Interest shall continue to accrue on any principal as to which a non‑conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Interest Rate determined pursuant to Section 2.6 from the date such amount was due and payable until the date such amount is paid in full.
2.14    Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Revolving Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents, or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than such Lender would be entitled pursuant to this Agreement, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent, Paying Agent and each Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that the recovery of such Aggregate Amounts Due shall be shared by the applicable Lenders in proportion to the Aggregate Amounts Due to them pursuant to this Agreement; provided, if all or part of such

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proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Company expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all monies owing by Company to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
2.15    Increased Costs; Capital Adequacy.
(a)    Compensation for Increased Costs and Taxes. Subject to the provisions of Section 2.16 (which shall be controlling with respect to the matters covered thereby), in the event that any Affected Party shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Affected Party with any guideline, request or directive issued or made after the date hereof (or with respect to any Lender which becomes a Lender after the date hereof, effective after such date) by any central bank or other Governmental Authority or quasi‑Governmental Authority (whether or not having the force of law): (i) subjects such Affected Party (or its applicable lending office) to any additional Tax (other than an Excluded Tax) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Affected Party (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC or other insurance or charge or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Party; or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Affected Party (or its applicable lending office) or its obligations hereunder; and the result of any of the foregoing is to increase the cost to such Affected Party of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Affected Party (or its applicable lending office) with respect thereto; then, in any such case, if such Affected Party deems such change to be material, Company shall promptly pay to such Affected Party, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Affected Party in its sole discretion shall determine) as may be necessary to compensate such Affected Party for any such increased cost or reduction in amounts received or receivable hereunder and any reasonable expenses related thereto. Such Affected Party shall deliver to Company (with a copy to Administrative Agent and Paying Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Affected Party under this Section 2.15(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.

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(b)    Capital Adequacy Adjustment. In the event that any Affected Party shall have determined in its sole discretion (which determination shall, absent manifest effort, be final and conclusive and binding upon all parties hereto) that (i) the adoption, effectiveness, phase‑in or applicability of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or (ii) compliance by any Affected Party (or its applicable lending office) or any company controlling such Affected Party with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, in each case after the Third Amendment Effective Date, has or would have the effect of reducing the rate of return on the capital of such Affected Party or any company controlling such Affected Party as a consequence of, or with reference to, such Affected Party’s Loans or Revolving Commitments, or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Affected Party or such controlling company could have achieved but for such adoption, effectiveness, phase‑in, applicability, change or compliance (taking into consideration the policies of such Affected Party or such controlling company with regard to capital adequacy), then from time to time, within five (5) Business Days after receipt by Company from such Affected Party of the statement referred to in the next sentence, Company shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party or such controlling company on an after‑tax basis for such reduction. Such Affected Party shall deliver to Company (with a copy to Administrative Agent and Paying Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Affected Party under this Section 2.15(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error. For the avoidance of doubt, subsections (i) and (ii) of this Section 2.15 shall apply, without limitation, to all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any Governmental Authority (x) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended to the date hereof and from time to time hereafter, and any successor statute and (y) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), regardless of the date adopted, issued, promulgated or implemented.
(c)    Delay in Requests. Failure or delay on the part of any Affected Party to demand compensation pursuant to the foregoing provisions of this Section 2.15 shall not constitute a waiver of such Affected Party’s right to demand such compensation, provided that Company shall not be required to compensate an Affected Party pursuant to the foregoing provisions of this Section 2.15 for any increased costs incurred or reductions suffered more than thirty (30) days prior to the date that such Affected Party notifies Company of the matters giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor.
Notwithstanding anything to the contrary in this Section 2.15, with respect to any Affected Party that is not a bank or a broker-dealer, the Company shall not be required to pay any increased costs under this Section 2.15 if the payment of such increased cost would cause the Company’s all-in cost of borrowing hereunder, for the applicable period to be in excess of the LIBO Rate plus 10%.

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2.16    Taxes; Withholding, etc.
(a)    Payments to Be Free and Clear. Subject to Section 2.16(b), all sums payable by Company hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax imposed, levied, collected, withheld or assessed by or within the United States or any political subdivision in or of the United States or any other jurisdiction from or to which a payment is made by or on behalf of Company or by any federation or organization of which the United States or any such jurisdiction is a member at the time of payment.
(b)    Withholding of Taxes. If Company or any other Person is required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by Company to an Affected Party under any of the Credit Documents: (i) Company shall notify Paying Agent of any such requirement or any change in any such requirement as soon as Company becomes aware of it; (ii) Company or the Paying Agent shall make such deduction or withholding and pay any such Tax to the relevant Governmental Authority before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on Company) for its own account or (if that liability is imposed on Paying Agent or such Affected Party, as the case may be) on behalf of and in the name of Paying Agent or such Affected Party; (iii) if such Tax is an Indemnified Tax, the sum payable by Company in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment (and any withholdings imposed on additional amounts payable under this paragraph), such Affected Party receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty (30) days after paying any sum from which it is required by law to make any deduction or withholding, and within thirty (30) days after the due date of payment of any Tax which it is required by clause (ii) above to pay, Company shall deliver to Paying Agent evidence satisfactory to the other Affected Parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
(c)    Indemnification by Company. Company shall indemnify each Affected Party, within ten (10) days after demand therefor, for the full amount of any additional amounts required to be paid by Company pursuant to Section 2.16(b), payable or paid by such Affected Party or required to be withheld or deducted from a payment to such Affected Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Company by an Affected Party (with a copy to the Paying Agent), or by the Paying Agent on its own behalf or on behalf of an Affected Party, shall be conclusive absent manifest error.
(d)    Evidence of Exemption From U.S. Withholding Tax.
(i)    Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non‑US Lender”) shall, to the extent it is legally entitled to do so, deliver to Paying Agent for transmission to Company, on or prior to the Original Closing Date (in the case of

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each Lender listed on the signature pages of the Original Credit Agreement on the Original Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Paying Agent (each in the reasonable exercise of its discretion), (A) two original copies of Internal Revenue Service Form W‑8BEN, W-8BEN-E or W‑8ECI or W-8IMY (with appropriate attachments) (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to, or is eligible for a reduction in the rate of, deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (B) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver Internal Revenue Service Form W-8IMY or W‑8ECI pursuant to clause (A) above and is relying on the so called “portfolio interest exception”, a Certificate Regarding Non‑Bank Status together with two original copies of Internal Revenue Service Form W‑8BEN or W-8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject, or is eligible for a reduction in the rate of, to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.16(d)(i) or Section 2.16(d)(ii) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Paying Agent for transmission to Company two new original copies of Internal Revenue Service Form W‑8BEN, W-8BEN-E, W‑8IMY, or W‑8ECI, or, if relying on the “portfolio interest exception”, a Certificate Regarding Non‑Bank Status and two original copies of Internal Revenue Service Form W‑8BEN or W-8BEN-E (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to confirm or establish that such Lender is not subject to, or is eligible for a reduction in the rate of, deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Paying Agent and Company of its inability to deliver any such forms, certificates or other evidence. Company shall not be required to pay any additional amount in respect of U.S. Federal withholding taxes to any Non‑US Lender under Section 2.16(b)(iii) if such Lender shall have failed (1) to deliver any forms, certificates or other evidence referred to in this Section 2.16(d)(i) or Section 2.16(d)(ii), or (2) to notify Paying Agent and Company of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have satisfied the requirements of the first sentence of this Section 2.16(d)(i) and Section 2.16(d)(ii) on the Original Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section 2.16(d)(i) shall relieve Company of its obligation to pay any additional amounts

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pursuant to this Section 2.16 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.
(ii)    Any Lender that is a U.S. Person shall deliver to Company and the Paying Agent on or prior to the Original Closing Date or the date on which such Lender becomes a Lender under this Agreement pursuant to an Assignment Agreement (and from time to time thereafter upon the reasonable request of Company or the Paying Agent), executed originals of IRS Form W-9 certifying that such Lender is a U.S. Person and exempt from U.S. federal backup withholding tax.
(iii)    If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Company and the Paying Agent at the time or times reasonably requested by Company or the Paying Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Company or the Paying Agent as may be necessary for Company and the Paying Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(d)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
2.17    Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Revolving Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.16, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the additional amounts which would otherwise be required to be paid to such Lender pursuant to 2.16 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments or Revolving Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments or Revolving Loans or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.17 unless Company agrees to pay all reasonable and incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Company pursuant to this Section 2.17 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be conclusive absent manifest error.

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2.18    Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that other than at the direction or request of any regulatory agency or authority, any Lender defaults (in each case, a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan (in each case, a “Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the Revolving Loans shall be applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b); (c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating any Revolving Commitment fee payable to Lenders in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee pursuant to Section 2.7 with respect to such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of Revolving Commitments, as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.18, performance by Company of its obligations hereunder and the other Credit Documents shall not be excused or otherwise modified as a result of any Funding Default or the operation of this Section 2.18. The rights and remedies against a Defaulting Lender under this Section 2.18 are in addition to other rights and remedies which Company may have against such Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default or violation of Section 8.5(c).
2.19    Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased‑Cost Lender”) shall give notice to Company that such Lender is entitled to receive payments under Section 2.16, (ii) the circumstances which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Company’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five (5) Business Days after Company’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 9.5(b), the consent of Administrative Agent and Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non‑Consenting Lender”) whose consent is required shall not have been obtained; or (d) (i) any

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Lender fails to be a creditworthy entity (in terms of its remaining funding obligations under this Agreement and taking into account any guaranty or other credit support of such Lender’s funding obligations under this Agreement) by March 1, 2014 (a “Non‑Creditworthy Lender”) and (ii) no Default or Event of Default shall then exist; then, with respect to each such Increased‑Cost Lender, Defaulting Lender, Non‑Consenting Lender or Non-Creditworthy Lender (the “Terminated Lender”), Company may, by giving written notice to any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender and, if applicable, each other such Lender hereby irrevocably agrees) to assign its outstanding Revolving Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees identified by Company (each a “Replacement Lender”) in accordance with the provisions of Section 9.6; provided, (1) on the date of such assignment, the Replacement Lender shall pay to the Terminated Lender and, if applicable, such other Lenders, an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Revolving Loans of the Terminated Lender and, if applicable, such other Lenders, and (B) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender and, if applicable, such other Lenders, pursuant to Section 2.7; (2) on the date of such assignment, Company shall pay any amounts payable to such Terminated Lender and, if applicable, such other Lenders pursuant to Section 2.16 and any other amounts due to such Terminated Lender and, if applicable, such other Lenders; and (3) in the event such Terminated Lender is an Increased-Cost Lender, such assignment will result in a reduction in any claims for payments under Section 2.16, as applicable, and (4) in the event such Terminated Lender is a Non‑Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non‑Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and, if applicable, such other Lenders and the termination of such Terminated Lender’s Revolving Commitments and, if applicable, the Revolving Commitments of such other Lenders, such Terminated Lender and, if applicable, such other Lenders shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender and, if applicable, such other Lenders to indemnification hereunder shall survive as to such Terminated Lender and such other Lenders.
2.20    The Paying Agent.
(a)    The Lenders hereby appoint Deutsche Bank Trust Company Americas as the initial Paying Agent. All payments of amounts due and payable in respect of the Obligations that are to be made from amounts withdrawn from the Collection Account pursuant to Section 2.12 shall be made by the Paying Agent based on the Monthly Servicing Report.
(b)    The Paying Agent hereby agrees that, subject to the provisions of this Section, it shall:
(i)    hold any sums held by it for the payment of amounts due with respect to the 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 herein provided and pay such sums to such Persons as herein provided;

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(ii)    give the Administrative Agent and each Lender notice of any default by the Company in the making of any payment required to be made with respect to the Obligations of which it has actual knowledge;
(iii)    comply with all requirements of the Internal Revenue Code and any applicable State law with respect to the withholding from any payments made by it in respect of any Obligations of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith; and
(iv)    provide to the Agents such information as is required to be delivered under the Internal Revenue Code or any State law applicable to the particular Paying Agent, relating to payments made by the Paying Agent under this Agreement.
(c)    Each Paying Agent (other than the initial Paying Agent) shall be appointed by the Lenders with the prior written consent of the Company.
(d)    The Company shall indemnify the Paying Agent and its officers, directors, employees and agents for, and hold them harmless against any loss, liability or expense incurred, other than in connection with the willful misconduct, fraud, gross negligence or bad faith on the part of the Paying Agent, arising out of or in connection with the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement. All such amounts shall be payable in accordance with Section 2.12 and such indemnity shall survive the termination of this Agreement and the resignation or removal of the Paying Agent.
(e)    The Paying Agent undertakes to perform such duties, and only such duties, as are expressly set forth in this Agreement. No implied covenants or obligations shall be read into this Agreement against the Paying Agent. The Paying Agent may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Paying Agent pursuant to and conforming to the requirements of this Agreement.
(f)    The Paying Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the direction or request of Requisite Lenders or the Administrative Agent, or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction, no longer subject to appeal or review.
(g)    The Paying Agent shall not be charged with knowledge of any Default or Event of Default unless an authorized officer of the Paying Agent obtains actual knowledge of such event or the Paying Agent receives written notice of such event from the Company, the Servicer, any Secured Party or any Agent, as the case may be. The receipt and/or delivery of reports and other information under this Agreement by the Paying Agent shall not constitute notice or actual or constructive knowledge of any Default or Event of Default contained therein.
(h)    The Paying Agent shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise

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of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Paying Agent to perform, or be responsible for the manner of performance of, any of the obligations of the Company under this Agreement.
(i)    The Paying Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate of an Authorized Officer, any Monthly Servicing Report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(j)    The Paying Agent may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel, selected with due care, shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Paying Agent in good faith and in accordance therewith.
(k)    The Paying Agent shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent, any Lender or any Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, such Lender or such Agent shall have offered to the Paying Agent security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(l)    Except as otherwise expressly set forth in Section 2.21, the Paying Agent 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, unless requested in writing so to do by a Lender or the Administrative Agent; provided, that if the payment within a reasonable time to the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Paying Agent, not reasonably assured by the Company, the Paying Agent may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Paying Agent, shall be reimbursed by the Company to the extent of funds available therefor pursuant to Section 2.12.
(m)    The Paying Agent shall not be responsible for the acts or omissions of the Administrative Agent, the Company, the Servicer, any Agent, any Lender or any other Person.
(n)    Any Person into which the Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which to Paying Agent shall be a party, or any Person succeeding to the business of the Paying Agent, shall be the successor of the Paying Agent under this Agreement, without the

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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.
(o)    The Paying Agent does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of any Collateral.
(p)    If the Paying Agent shall at any time receive conflicting instructions from the Administrative Agent and the Company or the Servicer or any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Paying Agent shall be entitled to rely on the instructions of the Administrative Agent. The Paying Agent may rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the parties to this Agreement will hold the Paying Agent harmless from any claims that may arise or be asserted against the Paying Agent because of the invalidity of any such documents or their failure to fulfill their intended purpose.
(q)    The Paying Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Paying Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree, and if it complies with any such order, writ, judgment or decree it shall not be liable to any other party hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree maybe subsequently reversed, modified, annulled, set aside or vacated.
(r)    The Paying Agent may: (i) terminate its obligations as Paying Agent under this Agreement (subject to the terms set forth herein) upon at least 30 days’ prior written notice to the Company, the Servicer and the Administrative Agent; provided, however, that, without the consent of the Administrative Agent, such resignation shall not be effective until a successor Paying Agent reasonably acceptable to the Administrative Agent and Company shall have accepted appointment by the Lenders as Paying Agent, pursuant hereto and shall have agreed to be bound by the terms of this Agreement; or (ii) be removed at any time by written demand, of the Requisite Lenders, delivered to the Paying Agent, the Company and the Servicer. In the event of such termination or removal, the Lenders with the consent of the Company shall appoint a successor paying. If, however, a successor paying agent is not appointed by the Lenders within ninety (90) days after the giving of notice of resignation, the Paying Agent may petition a court of competent jurisdiction for the appointment of a successor Paying Agent.
(s)    Any successor Paying Agent appointed pursuant hereto shall (i) execute, acknowledge, and deliver to the Company, the Servicer, the Administrative Agent, and to the predecessor Paying Agent an instrument accepting such appointment under this Agreement. Thereupon, the resignation or removal of the predecessor Paying Agent shall become effective and

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such successor Paying Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor as Paying Agent under this Agreement, with like effect as if originally named as Paying Agent. The predecessor Paying Agent shall upon payment of its fees and expenses deliver to the successor Paying Agent all documents and statements and monies held by it under this Agreement; and the Company and the predecessor Paying Agent shall execute and deliver such instruments and do such other things as may reasonably be requested for fully and certainly vesting and confirming in the successor Paying Agent all such rights, powers, duties, and obligations.
(t)    The Company shall reimburse the Paying Agent for the reasonable out-of-pocket expenses of the Paying Agent incurred in connection with the succession of any successor Paying Agent including in transferring any funds in its possession to the successor Paying Agent.
(u)    The Paying Agent shall have no obligation to invest and reinvest any cash held in the Controlled Accounts or any other moneys held by the Paying Agent pursuant to this Agreement in the absence of timely and specific written investment direction from Company. In no event shall the Paying Agent be liable for the selection of investments or for investment losses incurred thereon. The Paying Agent shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Company to provide timely written investment direction.
(v)    If the Paying Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the parties hereto pursuant to this Agreement which, in the reasonable opinion of the Paying Agent, are in conflict with any of the provisions of this Agreement, the Paying Agent shall be entitled (without incurring any liability therefor to the Company or any other Person) to (i) consult with outside counsel of its choosing and act or refrain from acting based on the advice of such counsel and (ii) refrain from taking any action until it shall be directed otherwise in writing by all of the parties hereto or by final order of a court of competent jurisdiction.
(w)    The Paying Agent shall incur no liability nor be responsible to Company or any other Person for delays or failures in performance resulting from acts beyond its control that significantly and adversely affect the Paying Agent’s ability to perform with respect to this Agreement. Such acts shall include, but not be limited to, acts of God, strikes, work stoppages, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility.
(x)    The Paying Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Paying Agent shall not be responsible for any misconduct or negligence on the part of or for the supervision of any agent or attorney appointed with due care by it hereunder.
(y)    The Lenders hereby authorize and direct the Paying Agent, Collateral Agent and the Custodian, as applicable, to execute and deliver the Credit Document Amendments.
2.21    Duties of Paying Agent.

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(a)    Borrowing Base Reports. Upon receipt of any Borrowing Base Report and the related Borrowing Base Certificate delivered pursuant to Section 2.1(c)(ii), Section 2.11(c)(vii)(B) or Section 2.11(c)(vii)(C), Paying Agent shall, on the Business Day following receipt of such Borrowing Base Report, to the extent that Paying Agent has access to all information necessary to perform the duties set forth herein:
(i)    compare the beginning Eligible Portfolio Outstanding Principal Balance set forth in such Borrowing Base Report with the aggregate Outstanding Principal Balance of the Eligible Receivables listed in the Master Record and identify any discrepancy;
(ii)    compare the number of Pledged Receivables listed in the Master Record with the number of Pledged Receivables provided to the Paying Agent by the Servicer pursuant to Section 4.3 of the Custodial Agreement as the number of Pledged Receivables for which the Custodian holds a Receivables File pursuant to the Custodial Agreement and identify any discrepancy;
(iii)    confirm that each Pledged Receivable listed in the Master Record has a unique loan identification number;
(iv)    compare the amount set forth in such Borrowing Base Report as the amount on deposit in the Collection Account with the amount shown on deposit in the Collection Account and identify any discrepancy;
(v)    in the case of a Borrowing Base Report delivered pursuant to Section 2.11(c)(vii)(B) or Section 2.11(c)(vii)(C), recalculate the amount set forth in such Borrowing Base Report as the amount that will be on deposit in the Collection Account after giving effect to the related repayment of Loans or the related purchase of Eligible Receivables set forth therein and identify any discrepancy;
(vi)    confirm that the Accrued Interest Amount and an estimate of accrued fees as of the date of repayment or the Transfer Date, as the case may be, multiplied by 105%, is the amount set forth in such Borrowing Base Request as 105% of the estimated amount of accrued interest and fees and identify any discrepancy;
(vii)    recalculate the Revolving Availability based on the Borrowing Base set forth in such Borrowing Base Report and the Total Utilization of Revolving Commitments set forth in the Paying Agent’s records and identify any discrepancies;
(viii)    in the case of a Borrowing Base Report delivered pursuant to Section 3.3(a)(i), (A) confirm that the Revolving Loans requested in the related Funding Request are not greater than the Revolving Availability and (B) confirm that, after giving effect to such Revolving Loans, the Total Utilization of Revolving Loans will not exceed the Revolving Commitment; and
(ix)    notify the Lenders of the results of such review.

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(b)    Monthly Servicing Reports. Upon receipt of any Monthly Servicing Report delivered pursuant to Section 5.1(e), Paying Agent shall, to the extent that Paying Agent has access to all information necessary to perform the duties set forth herein:
(i)    compare the Eligible Portfolio Outstanding Principal Balance set forth therein with the aggregate Outstanding Principal Balance of the Eligible Receivables listed in the Master Record and identify any discrepancy;
(ii)    confirm the aggregate repayments of Revolving Loans during the period covered by the Monthly Servicing Report set forth therein with the Borrowing Base Reports delivered to Paying Agent pursuant to Section 2.11(c)(vii)(B) during such period and identify any discrepancies;
(iii)    compare the amount set forth therein as the amount on deposit in the Collection Account with the amount shown on deposit in the Collection Account and identify any discrepancy;
(iv)    compare the amount of accrued and unpaid interest and unused fees payable to the Revolving Lenders set forth therein to the amounts set forth in the related invoices received by Paying Agent and identify any discrepancies;
(v)    compare the amount of Servicing Fees payable to the Servicer set forth therein to the amount set forth in the related invoice received by Paying Agent and identify any discrepancy;
(vi)    compare the amount of Backup Servicing Fees and expenses payable to the Backup Servicer set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(vii)    compare the amount of fees and expenses payable to the Custodian set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(viii)    compare the amount of fees and expenses payable to the Collateral Agent set forth therein to the amounts set forth in the related invoice received by Paying Agent and identify any discrepancy;
(ix)    compare the amount of fees and expenses payable to the Paying Agent set forth therein to the amounts set forth in the related invoice submitted by Paying Agent and identify any discrepancy;
(x)    recalculate the Revolving Availability based on the Borrowing Base set forth therein and the Total Utilization of Revolving Commitments set forth in the Paying Agent’s records and identify any discrepancies; and
(xi)    notify the Lenders of the results of such review.

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(c)    The Paying Agent shall maintain the List of Direct Competitors described in clause (a) of the definition of “Direct Competitor”, and upon receipt of any update to such list as described in such definition, the Paying Agent shall promptly notify the Administrative Agent and each Lender of such update (and thereafter the Paying Agent shall maintain the List of Direct Competitors as so updated).
(d)    For the avoidance of doubt, Paying Agent’s sole responsibility with respect to the obligations set forth in Sections 2.21(a) and (b) is to compare or confirm information in the Borrowing Base Report or Monthly Servicing Report, as applicable, in accordance with Section 2.21 based on the information indicated therein received by Paying Agent from Company, the Servicer or the Custodian, as the case may be. Paying Agent’s sole responsibility with respect to the obligations set forth in Section 2.21(c) is to maintain and provide notice of updates to the list described therein as required by the terms of such Section.
2.22    Collateral Agent.
(a)    The Collateral Agent shall be entitled to the same rights, protections, indemnities and immunities as the Paying Agent hereunder.
(b)    In addition to Section 2.22(a), the Collateral Agent shall be entitled to the following additional protections:
(i)    The Collateral Agent shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, re-filing or re-depositing of any thereof, (B) to see to any insurance, or (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral;
(ii)    The Collateral Agent shall be authorized to, but shall not be responsible for, filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting any security interest in the Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for (A) monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in or related to the Collateral, (B) taking any necessary steps to preserve rights against any Person with respect to any Collateral, or (C) taking any action to protect against any diminution in value of the Collateral;
(iii)    The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement and any other Credit Document or Credit Document Amendment (A) if such action would, in the reasonable opinion of the Collateral Agent, in good faith (which may be based on the advice or opinion of counsel), be contrary to applicable law, this Agreement or any other Credit Document or Credit Document Amendment, (B) if such action is not provided for in this Agreement or any other Credit Document or Credit

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Document Amendment, (C) if, in connection with the taking of any such action hereunder, under any other Credit Document or Credit Document Amendment that would constitute an exercise of remedies, it shall not first be indemnified to its satisfaction by the Administrative Agent and/or the Lenders against any and all risk of nonpayment, liability and expense that may be incurred by it, its agents or its counsel by reason of taking or continuing to take any such action, or (D) if the Collateral Agent would be required to make payments on behalf of the Lenders pursuant to its obligations as Collateral Agent hereunder, it does not first receive from the Lenders sufficient funds for such payment;
(iv)    The Collateral Agent shall not be required to take any action under this or any other Credit Document or Credit Document Amendment if taking such action (A) would subject the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax, or (B) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified;
(v)    Neither the Collateral Agent nor its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Administrative Agent or the Lenders, or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent’s and the Lenders’ interests in the Collateral and shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to the Administrative Agent or the Lenders for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
2.23    Intention of Parties. It is the intention of the parties that the Revolving Loans be characterized as indebtedness for federal income tax purposes. The terms of the Revolving Loans shall be interpreted to further this intention and neither the Lenders nor Company will take an inconsistent position on any federal, state or local tax return.
SECTION 3.    CONDITIONS PRECEDENT
3.1    Conditions Precedent to Effectiveness of the Existing Credit Agreement. The Existing Credit Agreement became effective on the Second Amendment Date subject to the satisfaction of the conditions precedent set forth in Section 3.2 of the Existing Credit Agreement.
3.2    Conditions Precedent to Effectiveness of the Third Amended and Restated Credit Agreement. The amendment and restatement of the Existing Credit Agreement provided for hereby shall become effective on the Third Amendment Effective Date when:
(a)    Credit Document Amendments. The Administrative Agent, the Paying Agent and the Collateral Agent shall have each received copies of this Agreement, Amendment No. 1 to the Asset Purchase Agreement, Amendment No. 1 to the Undertakings Agreement, Amendment No.

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1 to the Servicing Agreement (collectively, the “Credit Document Amendments”), originally executed and delivered by each applicable Person;
(b)    No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable discretion of the Administrative Agent, singly or in the aggregate, materially impairs any of the transactions contemplated by the Credit Documents or that would reasonably be expected to result in a Material Adverse Effect.
(c)    No Material Adverse Change. Since December 31, 2015, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
(d)    No Default or Event of Default. No Default, Event of Default or Servicer Default shall have occurred and be continuing.
(e)    Completion of Proceedings. All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto shall be satisfactory in form and substance to the Administrative Agent and counsel to Administrative Agent, and the Administrative Agent, and counsel to Administrative Agent shall have received all such counterpart originals or certified copies of such documents as they may reasonably request.
The Administrative Agent and each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and Credit Document Amendment and each other document required to be approved by the Administrative Agent, Requisite Lenders or Lenders, as applicable on the Third Amendment Effective Date.
3.3    Conditions to Each Credit Extension.
(a)    Conditions Precedent. The obligation of each Lender to make any Revolving Loan on any Credit Date is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent:
(i)    Administrative Agent, Paying Agent and Custodian shall have received a fully executed and delivered Funding Notice together with a Borrowing Base Certificate, evidencing sufficient Revolving Availability with respect to the requested Revolving Loans, and a Borrowing Base Report;
(ii)    both before and after making any Revolving Loans requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Borrowing Base;

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(iii)    as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, other than those representations and warranties which are qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects on and as of that Credit Date, except, in each case, to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects, or true and correct in all respects, as the case may be on and as of such earlier date, provided, that the representations and warranties in any Original Borrowing Base Certificate shall be excluded from the certification in this Section 3.3(a)(iii) to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(c)(ii);
(iv)    as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v)    the Administrative Agent and Paying Agent shall have received the Borrowing Base Report for the Business Day prior to the Credit Date which shall be delivered on a pro forma basis for the first Credit Date hereunder;
(vi)    as of such Credit Date, no Key Person Event shall have occurred; and
(vii)    in accordance with the terms of the Custodial Agreement, Company has delivered, or caused to be delivered to the Custodian, all original or authoritative copies of all agreements related to each Receivable, including all applicable Receivable Agreements (including any counterparts) that are, on such Credit Date, being transferred and delivered to Company pursuant to the Asset Purchase Agreement, and the Collateral Agent has received a Collateral Receipt and Exception Report from the Custodian, which Collateral Receipt and Exception Report is acceptable to the Collateral Agent in its Permitted Discretion.
Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the Permitted Discretion of such Agent or Requisite Lenders such request is warranted under the circumstances.
Notwithstanding anything contained herein to the contrary, neither the Paying Agent nor the Collateral Agent shall be responsible or liable for determining whether any conditions precedent to making a Loan have been satisfied.
(b)    Notices. Any Funding Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent and Paying Agent. In lieu of delivering a Notice, Company may give Administrative Agent and Paying Agent telephonic notice by the required time of any proposed borrowing or conversion/continuation, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative

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Agent and Paying Agent before the applicable date of borrowing. None of the Administrative Agent, Paying Agent or any Lender shall incur any liability to Company in acting upon any telephonic notice referred to above that Administrative Agent or Paying Agent, as applicable, believes in good faith to have been given by a duly Authorized Officer or other person authorized on behalf of Company or for otherwise acting in good faith.
SECTION 4.    REPRESENTATIONS AND WARRANTIES
In order to induce Agents and Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, Company represents and warrants to each Agent and Lender that each and every of its representations and warranties contained in the Existing Credit Agreement was true and correct as of the Original Closing Date and each Credit Date prior to the Third Amendment Effective Date (excluding any representation and warranty contained in Section 4.7 breached by Company as a result of the breach by Holdings of a representation and warranty contained in Part 1 of Schedule A to the Asset Purchase Agreement if Holdings shall have (or will, if requested in accordance with Section 3.01(b) of the Asset Purchase Agreement) satisfied its obligations in respect of such breach under Section 3.01(b) of the Asset Purchase Agreement), and on the Amendment Effective Date, each Credit Date after the Third Amendment Effective Date and on each Transfer Date, that the following statements are true and correct:
4.1    Organization; Requisite Power and Authority; Qualification; Other Names. Company (a) is duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and would not reasonably be expected to result in a Material Adverse Effect. Company does not operate or do business under any assumed, trade or fictitious name. Company has no Subsidiaries.
4.2    Capital Stock and Ownership. The Capital Stock of Company has been duly authorized and validly issued and is fully paid and non‑assessable. As of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Company is a party requiring, and there is no membership interest or other Capital Stock of Company outstanding which upon conversion or exchange would require, the issuance by Company of any additional membership interests or other Capital Stock of Company or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of Company.
4.3    Due Authorization. The execution, delivery and performance of the Credit Documents to which Company is a party have been duly authorized by all necessary action of Company.

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4.4    No Conflict. The execution, delivery and performance by Company of the Credit Documents to which it is party and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate in any material respect any provision of any law or any governmental rule or regulation applicable to Company, any of the Organizational Documents of Company, or any order, judgment or decree of any court or other Governmental Authority binding on Company; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Company; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Company (other than any Permitted Liens); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Company, except for such approvals or consents which have been obtained.
4.5    Governmental Consents. The execution, delivery and performance by Company of the Credit Documents to which Company is a party and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Original Closing Date other than (a) those that have already been obtained and are in full force and effect, or (b) any consents or approvals the failure of which to obtain will not have a Material Adverse Effect.
4.6    Binding Obligation. Each Credit Document to which Company is a party has been duly executed and delivered by Company and is the legally valid and binding obligation of Company, enforceable against Company in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
4.7    Eligible Receivables. Each Receivable that is identified by Company as an Eligible Receivable in a Borrowing Base Certificate satisfies all of the criteria set forth in the definition of Eligibility Criteria (other than any Receivable identified as an Eligible Receivable in any Original Borrowing Base Certificate to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(c)(ii)).
4.8    Historical Financial Statements. The Historical Financial Statements and any financial statements delivered to the Agents and the Lenders pursuant Section 5.1(b) or (c) after the Second Amendment Effective Date were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year‑end adjustments.
4.9    Financial Plan. On and as of the Second Amendment Effective Date, the projections set forth in the Financial Plan delivered prior to the Second Amendment Effective Date are based on good faith estimates and assumptions made by the management of Holdings; provided, the projections are not to be viewed as facts and that actual results during the period or periods covered

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by the projections may differ from such projections and that the differences may be material; provided further, as of the Second Amendment Effective Date, the management of Holdings believed that the projections were reasonable and attainable.
4.10    No Material Adverse Effect. Since December 31, 2013, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
4.11    Adverse Proceedings, etc. There are no Adverse Proceedings (other than counter claims relating to ordinary course collection actions by or on behalf of Company) pending against Company that challenges Company’s right or power to enter into or perform any of its obligations under the Credit Documents to which it is a party or that individually or in the aggregate are material to Company.  Company is not (a) in violation of any applicable laws in any material respect, or (b) subject to or in default with respect to any judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other Governmental Authority.
4.12    Payment of Taxes. Except as otherwise permitted under Section 5.3, all material tax returns and reports of Company required to be filed by it have been timely filed, and all material taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon Company and upon its properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. Company knows of no proposed tax assessment against Company which is not being actively contested by Company in good faith and by appropriate proceedings; provided, such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.
4.13    Title to Assets. Company has no fee, leasehold or other property interests in any real property assets. Company has good and valid title to all of its assets reflected in the most recent financial statements delivered pursuant to Section 5.1. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens, other than Permitted Liens. All Liens purported to be created in any Collateral pursuant to any Collateral Document in favor of Collateral Agent are First Priority Liens.
4.14    No Indebtedness. Company has no Indebtedness, other than Indebtedness incurred under (or contemplated by) the terms of this Agreement or otherwise permitted hereunder.
4.15    No Defaults. Company is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists which, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, would not reasonably be expected to result in a Material Adverse Effect.
4.16    Material Contracts. Company is not a party to any Material Contracts.

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4.17    Government Contracts. Company is not a party to any contract or agreement with any Governmental Authority, and the Pledged Receivables are not subject to the Federal Assignment of Claims Act (31 U.S.C. Section 3727) or any similar state or local law.
4.18    Governmental Regulation. Company is not subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. Company is not a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.
4.19    Margin Stock. Company is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Revolving Loans made to Company will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
4.20    Employee Benefit Plans. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. Company does not maintain or contribute to any Employee Benefit Plan.
4.21    Certain Fees. No broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby.
4.22    Solvency; Fraudulent Conveyance. Company is and, upon the incurrence of any Credit Extension by Company on any date on which this representation and warranty is made, will be, Solvent. Company is not transferring any Collateral with any intent to hinder, delay or defraud any of its creditors. Company shall not use the proceeds from the transactions contemplated by this Agreement to give preference to any class of creditors. Company has given fair consideration and reasonably equivalent value in exchange for the sale of the Receivables by Holdings under the Asset Purchase Agreement.
4.23    Compliance with Statutes, etc. Company is in compliance in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property.
4.24    Matters Pertaining to Related Agreements.
(a)    Delivery. Company has delivered, or caused to be delivered, to each Agent and each Lender complete and correct copies of (i) each Related Agreement and of all exhibits and schedules thereto as of the Original Closing Date, and (ii) copies of any material amendment,

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restatement, supplement or other modification to or waiver of each Related Agreement entered into after the Original Closing Date.
(b)    The Asset Purchase Agreement creates a valid transfer and assignment to Company of all right, title and interest of Holdings in and to all Pledged Receivables and all Related Security conveyed to Company thereunder and Company has a First Priority perfected security interest therein. Company has given reasonably equivalent value to Holdings in consideration for the transfer to Company by Holdings of the Pledged Receivables and Related Security pursuant to the Asset Purchase Agreement.
(c)    Each Receivables Program Agreement creates a valid transfer and assignment to Holdings of all right, title and interest of the Receivables Account Bank in and to all Receivables and Related Security conveyed or purported to be conveyed to Holdings thereunder. Holdings has given reasonably equivalent value to the Receivables Account Bank in consideration for the transfer to Holdings by the Receivables Account Bank of the Receivables and Related Security pursuant to the applicable Receivables Program Agreement.
4.25    Disclosure. No documents, certificates, written statements or other written information furnished to Lenders by or on behalf of Holdings or Company for use in connection with the transactions contemplated hereby, taken as a whole, contains any untrue statement of a material fact, or taken as a whole, omits to state a material fact (known to Holdings or Company, in the case of any document not furnished by either of them) necessary in order to make the statements contained therein not misleading in light of the circumstances in which the same were made, provided, that, projections and pro forma financial information contained in such materials were prepared based upon good faith estimates and assumptions believed by the preparer thereof to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material.
4.26    Patriot Act. To the extent applicable, Company and Holdings are in compliance, in all material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the “Act”). No part of the proceeds of the Revolving Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended to the date hereof and from time to time hereafter, and any successor statute.

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4.27    Remittance of Collections. Company represents and warrants that each remittance of Collections by it hereunder to any Agent or any Lender hereunder will have been (a) in payment of a debt incurred by Company in the ordinary course of business or financial affairs of Company and (b) made in the ordinary course of business or financial affairs.
SECTION 5.    AFFIRMATIVE COVENANTS
Company covenants and agrees that until the Termination Date, Company shall perform (or cause to be performed, as applicable) all covenants in this Section 5.
5.1    Financial Statements and Other Reports. Unless otherwise provided below, Company or its designee will deliver to each Agent and each Lender:
(a)    [Reserved].
(b)    Quarterly Financial Statements. Promptly after becoming available, and in any event within forty-five (45) days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter) of each Fiscal Year, the consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Financial Officer Certification with respect thereto;
(c)    Annual Financial Statements. Promptly after becoming available, and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheets of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification with respect thereto; and (ii) with respect to such consolidated financial statements a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing (which report shall be unqualified), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Holdings as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards) and (iii) the balance sheets of Company as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Company for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification with respect thereto;
(d)    Compliance Certificates. Together with each delivery of financial statements of each of Holdings and Company pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;

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(e)    Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of (i) Holdings and (ii) Company delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to Administrative Agent;
(f)    Collateral Reporting.
(i)    On each Monthly Reporting Date, with each Funding Notice, and at such other times as any Agent or Lender shall request in its Permitted Discretion, a Borrowing Base Certificate (calculated as of the close of business of the previous Monthly Period or as of a date no later than three (3) Business Days prior to such request), together with a reconciliation to the most recently delivered Borrowing Base Certificate and Borrowing Base Report, in form and substance reasonably satisfactory to Administrative Agent and Paying Agent. Each Borrowing Base Certificate delivered to Administrative Agent and Paying Agent shall bear a signed statement by an Authorized Officer certifying the accuracy and completeness in all material respects of all information included therein. The execution and delivery of a Borrowing Base Certificate (other than any Original Borrowing Base Certificate to the extent a Replacement Borrowing Base Certificate has been delivered in substitute thereof in accordance with Section 2.1(c)(ii)) shall in each instance constitute a representation and warranty by Company to Administrative Agent and Paying Agent that each Receivable included therein as an “Eligible Receivable” is, in fact, an Eligible Receivable. In the event any request for a Revolving Loan, or a Borrowing Base Certificate or other information required by this Section 5.1(f) is delivered to Administrative Agent and Paying Agent by Company electronically or otherwise without signature, such request, or such Borrowing Base Certificate or other information shall, upon such delivery, be deemed to be signed and certified on behalf of Company by an Authorized Officer and constitute a representation to Administrative Agent and Paying Agent as to the authenticity thereof. The Administrative Agent shall have the right to review and adjust any such calculation of the Borrowing Base to reflect exclusions from Eligible Receivables or such other matters as are necessary to determine the Borrowing Base, but in each case only to the extent the Administrative Agent is expressly provided such discretion by this Agreement.
(ii)    On each Monthly Reporting Date, (A) the Monthly Servicing Report to Administrative Agent and Paying Agent on the terms and conditions set forth in the Servicing Agreement, and (B) the Master Record to the Paying Agent. Notwithstanding any other provision of the Credit Documents, no Lender or Agent (other than the Paying Agent) shall have a right to receive the Master Record.
(g)    Legal Update. Together with each delivery of a Compliance Certificate pursuant to Section 5.1(d) and otherwise promptly upon any Authorized Officer’s knowledge thereof, written notice of the occurrence of any material legal developments reasonably expected

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to have a significant adverse impact on Holdings’ commercial loan program (or, if there are no such material legal developments since the last update provided by Company pursuant to this Section 5.1(g), a written confirmation that there are no such legal developments since such last update);
(h)    Notice of Default. Promptly upon an Authorized Officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Holdings or Company with respect thereto; (ii) that any Person has given any notice to Holdings or Company or taken any other action with respect to any event or condition set forth in Section 7.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Holdings or Company, as applicable, has taken, is taking and proposes to take with respect thereto;
(i)    Notice of Litigation. Promptly upon an Authorized Officer of Company obtaining knowledge of an Adverse Proceeding not previously disclosed in writing by Company to Lenders or any material development in any such Adverse Proceeding (including any adverse ruling or significant adverse development in any Adverse Proceeding) that would be reasonably expected to have a significant adverse impact on Company or Holdings or any Subsidiary thereof, written notice thereof together with such other information as may be reasonably available to Company or Holdings to enable Lenders and their counsel to evaluate such matters;
(j)    ERISA. (i) Promptly upon an Authorized Officer of Company becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each affected Pension Plan; (2) all notices received by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any affected Employee Benefit Plan of Holdings or any of its Subsidiaries thereof, or, with respect to any affected Pension Plan or affected Multiemployer Plan, any of their respective ERISA Affiliates (with respect to an affected Multiemployer Plan, to the extent that Holdings or the Subsidiary or ERISA Affiliate, as applicable, has rights to access such documents, reports or filings), as any Agent or Lender shall reasonably request;
(k)    [Reserved].
(l)    Notice of Change in Board of Directors. Subject to Section 6.20, with reasonable promptness, and in any event within five (5) Business Days, written notice to each Agent and Lender of any change in the board of directors (or similar governing body) of Company;

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(m)    Information Regarding Collateral. Prior written notice to Collateral Agent of any change (i) in Company’s corporate name, (ii) in Company’s identity, corporate structure or jurisdiction of organization, or (iii) in Company’s Federal Taxpayer Identification Number. Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Collateral Documents;
(n)    Public Reporting. After the consummation of the Initial Public Equity Offering, the obligations in Sections 5.1(b) and (c) in respect of Holdings’ financial statements may be satisfied by furnishing, at the option of Holdings, the applicable financial statements as described above or Holdings’ Annual Report on Form 10-K or Holdings’ Quarterly Report on Form 10-Q, as filed with the SEC, as applicable;
(o)    Other Information.
(i)    [reserved];
(ii)    not later than Friday of each week (or if such day is not a Business Day, the immediately preceding Business Day) in which a Borrowing Base Report has not otherwise been delivered hereunder, a Borrowing Base Report; and
(iii)    such material information and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested by any Agent or Lender, in each case, which relate to Company’s or Holdings’ financial or business condition or the Collateral.
5.2    Existence. Except as otherwise permitted under Section 6.8, Company will at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business.
5.3    Payment of Taxes and Claims. Company will pay all material Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim. Company will not file or consent to the filing of any consolidated income tax return with any Person (other than Holdings or any of its Subsidiaries). In addition, Company agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise

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or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by any Governmental Authority that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any Credit Document.
5.4    Insurance. Company shall cause Holdings to maintain or cause to be maintained, with financially sound and reputable insurers, (a) all insurance required to be maintained under the Servicing Agreement, (b) business interruption insurance reasonably satisfactory to Administrative Agent, and (c) casualty insurance, such public liability insurance, third party property damage insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self‑insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Each Agent and Lender hereby agrees and acknowledges that the insurance maintained by Holdings on the Original Closing Date satisfies the requirements set forth in this Section 5.4.
5.5    Inspections; Compliance Audits; Regulatory Review.
(a)    Company will permit or cause to be permitted, as applicable, any authorized representatives designated by any Agent or any Lender to visit and inspect any of the properties of Company or Holdings, at any time, and from time to time upon reasonable advance notice and during normal working hours, to (i) inspect, copy and take extracts from its financial and accounting records, and to discuss its affairs, finances and accounts with any Person, including, without limitation, employees of Company or Holdings and independent public accountants and (ii) verify the compliance by Company or Holdings with the Credit Agreement, the other Credit Documents and/or the Underwriting Policies, as applicable. Company agrees to pay Agents’ then customary charge for field examinations and audits and the preparation of reports thereof performed or prepared (A) at any time during the existence of a Default or an Event of Default and (B) otherwise up to one (1) time in any calendar year, provided Company shall not be obligated to pay more than $25,000 in the aggregate during any twelve-month period in connection with any examination or audit described in this Section 5.5(a)(ii)(B). If any Agent engages any independent certified public accountants or other third-party provider to prepare any such report, such Agent shall make such report available to any Lender, upon request, provided, that delivery of any such report may be conditioned on prior receipt by such independent certified public accountants or other third party provider of the acknowledgements and agreements that such independent certified public accountants or third party provider customarily requires of recipients of reports of that kind.
(b)    At any time during the existence of an Event of Default and otherwise one (1) time in any calendar quarter, the Administrative Agent or its designee, may, at Company’s expense, perform a compliance review (a “Compliance Review”) with five (5) Business Days’ prior written notice to verify the compliance by Company and Holdings with Requirements of Law related to the Pledged Receivables and to review the materials prepared in accordance with Section 5.5(d). Company shall, and shall cause Holdings to, cooperate with all reasonable requests and provide the Administrative Agent with all necessary assistance and information in connection with

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each such Compliance Review. In connection with any such Compliance Review, Company will permit any authorized representatives designated by the Administrative Agent to review Company’s form of Receivable Agreements, Underwriting Policies, information processes and controls, compliance practices and procedures and marketing materials (“Materials”). Such authorized representatives may make written recommendations regarding Company’s compliance with applicable Requirements of Law, and Company shall consult in good faith with the Administrative Agent regarding such recommendations. In connection with any Compliance Review pursuant to this Section 5.5(b), the Administrative Agent agrees to use a single regulatory counsel.
(c)    In connection with any inspection pursuant to Section 5.5(a) or a Compliance Review, the Administrative Agent or its designee may contact a Receivables Obligor as reasonably necessary to perform such inspection or Compliance Review, as the case may be, provided, however, that such contact shall be made in the name of, and in cooperation with, Holdings and Company, unless Holdings (i) has failed to so cooperate for at least ten (10) Business Days after receiving a written request from the Administrative Agent requesting such cooperation, or (ii) is no longer the “Servicer” under the Servicing Agreement.
5.6    Lenders Meetings. Company shall, and shall cause Holdings to, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed to by Company and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent.
5.7    Compliance with Laws. Company shall, and shall cause Holdings to, comply with the Requirements of Law, noncompliance with which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.8    Separateness. Company shall at all times comply with Section 5(d), Section 7, Sections 9(e) and (f), Section 10, Section 28, Section 30 and Section 31 (or any successor sections) of the Limited Liability Company Agreement, and shall not violate or cause to be violated the assumptions made with respect to Company in any opinion letter pertaining to substantive consolidation delivered to Lenders in connection with the Credit Documents.
5.9    Further Assurances. At any time or from time to time upon the request of any Agent or Lender, Company will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as such Agent or Lender may reasonably request in order to effect fully the purposes of the Credit Documents, including providing Lenders with any information reasonably requested pursuant to Section 9.21. In furtherance and not in limitation of the foregoing, Company shall take such actions as the Administrative Agent may reasonably request from time to time to ensure that the Obligations are secured by substantially all of the assets of Company.
5.10    Communication with Accountants. Company authorizes Administrative Agent to communicate directly with Company’s independent certified public accountants and authorizes and shall instruct such accountants to communicate directly with Administrative Agent and authorizes such accountants to (and, upon Administrative Agent’s request therefor (at the request of any Agent),

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shall request that such accountants) communicate to Administrative Agent information relating to Company with respect to the business, results of operations and financial condition of Company (including the delivery of audit drafts and letters to management), provided that advance notice of such communication is given to Company, and Company is given a reasonable opportunity to cause an officer to be present during any such communication. Company agrees that the Administrative Agent may communicate with Company’s independent certified public accountants pursuant to this Section 5.10 (a) at any time (i) during the existence of a Default or an Event of Default, (ii) upon any event or circumstance which has a Material Adverse Effect or (iii) upon any material change (as determined by the Administrative Agent in its Permitted Discretion) in Holdings’ or Company’s accounting principles and policies and (b) otherwise, up to two (2) times in any calendar year. The failure of Company to be present during such communication after given such reasonable opportunity shall in no way impair the rights of the Administrative Agent under this Section 5.10.
5.11    Acquisition of Receivables from Holdings. With respect to each Pledged Receivable, Company shall (a) acquire such Receivable pursuant to and in accordance with the terms of the Asset Purchase Agreement, (b) take all actions necessary to perfect, protect and more fully evidence Company’s ownership of such Receivable, including, without limitation, executing or causing to be executed (or filing or causing to be filed) such other instruments or notices as may be necessary or appropriate, and (c) take all additional action that the Administrative Agent may reasonably request to perfect, protect and more fully evidence the respective interests of Company, the Agents, and the Lenders.
SECTION 6.    NEGATIVE COVENANTS
Company covenants and agrees that, until the Termination Date, Company shall perform (or cause to be performed, as applicable) all covenants in this Section 6.
6.1    Indebtedness. Company shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except the Obligations.
6.2    Liens. Company shall not directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Company, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except Permitted Liens.
6.3    Equitable Lien. If Company shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.

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6.4    No Further Negative Pledges. Except pursuant to the Credit Documents Company shall not enter into any Contractual Obligation prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired.
6.5    Restricted Junior Payments. Company shall not through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that, Restricted Junior Payments may be made by Company from time to time with respect to any amounts distributed to Company in accordance with Section 2.12(a)(ix).
6.6    Subsidiaries. Company shall not form, create, organize, incorporate or otherwise have any Subsidiaries.
6.7    Investments. Company shall not, directly or indirectly, make or own any Investment in any Person, including without limitation any Joint Venture, except Investments in Cash, Permitted Investments and Receivables (and property received from time to time in connection with the workout or insolvency of any Receivables Obligor), and Permitted Investments in the Controlled Accounts.
6.8    Fundamental Changes; Disposition of Assets; Acquisitions. Company shall not enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than acquisitions of Eligible Receivables, or Permitted Investments in a Controlled Account (and property received from time to time in connection with the workout or insolvency of any Receivables Obligor)) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, provided that, notwithstanding the foregoing, (a) Permitted Asset Sales of Term Receivables and LOC Receivables (other than Co-Existence LOC Receivables) may occur so long as no Event of Default pursuant to Section 7.1(a), 7.1(g), 7.1(h) or 7.1(p) has occurred and is continuing, (b) Permitted Asset Sales of Co-Existence LOC Receivables may occur (i) so long as no Event of Default has occurred and is continuing, and (ii) from and after the occurrence of any Event of Default so long as such Event of Default has been continuing for more than thirty (30) days, and (c) notwithstanding the limitations set forth in the foregoing clauses (a) and (b), Permitted Asset Sales under clause (d) of the definition thereof shall be permitted at all times subject to receipt of the consent required therein.
6.9    Sales and Lease‑Backs. Company shall not, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which Company (a) has sold or transferred or is to sell or to transfer to any other Person, or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company to any Person in connection with such lease.

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6.10    Transactions with Shareholders and Affiliates. Company shall not, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder of ten percent (10%) or more of any class of Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or of any such holder other than the transactions contemplated or permitted by the Credit Documents and the Related Agreements.
6.11    Conduct of Business. From and after the Original Closing Date, Company shall not engage in any business other than the businesses engaged in by Company on the Original Closing Date.
6.12    Fiscal Year. Company shall not change its Fiscal Year‑end from December 31st.
6.13    Servicer; Backup Servicer; Custodian.
(a)    Company shall use its commercially reasonable efforts to cause Servicer, the Backup Servicer and the Custodian to comply at all times with the applicable terms of the Servicing Agreement, the Backup Servicing Agreement and the Custodial Agreement. The Company may not (i) terminate, remove, replace Servicer, Backup Servicer or the Custodian or (ii) subcontract out any portion of the servicing or permit third party servicing other than the Backup Servicer, except, in each case, with the consent of the Requisite Lenders in their Permitted Discretion. The Administrative Agent may not terminate, remove, or replace the Servicer except in accordance with the Servicing Agreement. The Administrative Agent may not terminate, remove, or replace the Backup Servicer or the Custodian except with the prior consent of Company (such consent not to be unreasonably withheld); provided, however, that the Administrative Agent may terminate and replace the Backup Servicer at any time without the consent of Company after the occurrence and during the continuance of an Event of Default or Servicer Default.
(b)    Upon the occurrence of (1) for so long as the DB Credit Facility is in effect, a “Hot Backup Servicer Event” thereunder and the election by the Administrative Agent under the DB Credit Facility to transition to “hot” backup servicing, or (2) after the termination of the DB Credit Facility, a Hot Backup Servicer Event, the Administrative Agent may instruct the Backup Servicer to provide “hot” backup servicing under the Backup Servicing Agreement (provided that, with respect to clause (2) above, if after a Hot Backup Servicer Event to occur hereunder, a Hot Backup Servicer Event Cure occurs, the Administrative Agent shall, at the direction of Company, instruct the Backup Servicer to (i) stop providing hot” backup servicing under the Backup Servicing Agreement and (ii) again begin providing only “warm” backup servicing under the Backup Servicing Agreement). Company shall pay all reasonable and customary fees, costs and expenses of the Backup Servicer.
6.14    Acquisitions of Receivables. Company may not acquire Receivables from any Person other than Holdings pursuant to the Asset Purchase Agreement.
6.15    Independent Manager. Company shall not fail at any time to have at least one independent manager (an “Independent Manager”) who:

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(a)    is provided by a nationally recognized provider of independent directors;
(b)    is not and has not been employed by Company or Holdings or any of their respective Subsidiaries or Affiliates as an officer, director, partner, manager, member (other than as a special member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Company or Holdings or any of their respective Affiliates within the five years immediately prior to such individual’s appointment as an Independent Manager, provided that this paragraph (b) shall not apply to any person who serves as an independent director or an independent manager for any Affiliate of any of Company or Holdings;
(c)    is not, and has not been within the five years immediately prior to such individual’s appointment as an Independent Manager, a customer or creditor of, or supplier to, Company or Holdings or any of their respective Affiliates who derives any of its purchases or revenue from its activities with Company or Holdings or any of their respective Affiliates thereof (other than a de minimis amount);
(d)    is not, and has not been within the five years immediately prior to such individual’s appointment as an Independent Manager, a person who controls or is under common control with any Person described by clause (b) or (c) above;
(e)    does not have, and has not had within the five years immediately prior to such individual’s appointment as an Independent Manager, a personal services contract with Company or Holdings or any of their respective Subsidiaries or Affiliates, from which fees and other compensation received by the person pursuant to such personal services contract would exceed 5% of his or her gross revenues during the preceding calendar year;
(f)    is not affiliated with a tax-exempt entity that receives, or has received within the five years prior to such appointment as an Independent Manager, contributions from Company or Holdings or any of their respective Subsidiaries or Affiliates, in excess of the lesser of (i) 3% of the consolidated gross revenues of Holdings and its Subsidiaries during such fiscal year and (ii) 5% of the contributions received by the tax-exempt entity during such fiscal year;
(g)    is not and has not been a shareholder (or other equity owner) of any of Company or Holdings or any of their respective Affiliates within the five years immediately prior to such individual’s appointment as an Independent Manager;
(h)    is not a member of the immediate family of any Person described by clause (b) through (g) above;
(i)    is not, and was not within the five years prior to such appointment as an Independent Manager, a financial institution to which Company or Holdings or any of their respective Subsidiaries or Affiliates owes outstanding Indebtedness for borrowed money in a sum exceeding more than 5% of Holdings’ total consolidated assets;
(j)    has prior experience as an independent director or manager for a corporation or limited liability company whose charter documents required the unanimous consent of all

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independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy; and
(k)    has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
Upon Company learning of the death or incapacity of an Independent Manager, Company shall have ten (10) Business Days following such death or incapacity to appoint a replacement Independent Manager. Any replacement of an Independent Manager will be permitted only upon (a) two (2) Business Days’ prior written notice to each Agent and Lender, (b) Company’s certification that any replacement manager will satisfy the criteria set forth in clauses (a)-(i) of this Section 6.15 and (c) the Administrative Agent’ written consent to the appointment of such replacement manager. For the avoidance of doubt, other than in the event of the death or incapacity of an Independent Manager, Company shall at all times have an Independent Manager and may not terminate any Independent Manager without the prior written consent of the Administrative Agent, which consent the Administrative Agent may withhold in its sole discretion.
6.16    Organizational Agreements and Credit Documents. Except as otherwise expressly permitted by other provisions of this Agreement or any other Credit Document, Company shall not (a) enter into any contract with any Person other than the Credit Documents, any Related Agreement to which it is a party, and an agreement related to the appointment of the Independent Manager and process agent, in each case, as of the Original Closing Date or any agreement entered into in connection with a Permitted Asset Sale; (b) amend, restate, supplement or modify, or permit any amendment, restatement, supplement or modification to, its Organizational Documents, without obtaining the prior written consent of the Requisite Lenders to such amendment, restatement, supplement or modification, as the case may be; (c) agree to any termination, amendment, restatement, supplement or other modification to, or waiver of, or permit any termination, amendment, restatement, supplement or other modification to, or waivers of, any of the provisions of any Credit Document without the prior written consent of the Requisite Lenders. Company shall not agree to, and shall cause Holdings not to, amend, restate, supplement or modify in any material respect any Receivables Program Agreement without providing prior written notice thereof to the Administrative Agent, each Lender and obtaining the consent thereto of the Requisite Lenders; provided, however that the Requisite Lenders shall be deemed to have consented to any such amendment, restatement, supplement or modification if the Requisite Lenders do not object to such proposed amendment, restatement, supplement or modification in writing to Company within seven (7) Business Days of the Administrative Agent’s receipt of written notice of such proposed amendment, restatement, supplement or modification..
6.17    Changes in Underwriting or Other Policies. Company shall not agree to, and shall cause Holdings not to, make any change or modification to the Underwriting Policies without providing prior written notice thereof to the Administrative Agent and each Lender, (collectively, the “Notice Parties”). Company shall not agree to, and shall cause Holdings not to, make any

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Material Underwriting Policy Change, including any change or modification to the Underwriting Policies of which the Notice Parties receive written notice that either the Administrative Agent or the Requisite Lenders, in the exercise of their respective Permitted Discretion, determines to be a Material Underwriting Policy Change and notifies Company of such determination within seven (7) Business Days of their receipt of such notice, without the prior written consent of the Requisite Lenders (such consent not to be unreasonably withheld, conditioned or delayed). Company shall not agree to, and shall cause the Servicer not to, make any change to the Servicer’s methodology for calculating the unpaid principal balance of Pledged Receivables without the prior written consent of the Requisite Lenders (such consent not to be unreasonably withheld, conditioned or delayed).
6.18    Receivable Forms. Company shall not acquire Receivables which are not on the form of applicable Receivable Agreement attached to the Undertakings Agreement (or any successor form approved after the Third Amendment Effective Date in accordance with this Section 6.18). Company shall provide, or cause Holdings to provide, prior written notice to Administrative Agent of any proposed change or variation to the form of any Receivable Agreement, including a reasonably detailed description of the proposed change or variation (a “Notice of Amendment”). The Administrative Agent shall, within five (5) Business Days of Administrative Agent’s receipt of a Notice of Amendment, notify Company if the Administrative Agent, in its Permitted Discretion, has determined that such proposed change or variation is material (a “Material Change Notice”), and upon receipt of such Material Change Notice, Company shall not, and shall cause Holdings not to, make any change or variation set forth in the Notice of Amendment without the prior written consent of the Requisite Lenders, unless such change or variation is required by any Requirement of Law. The Requisite Lenders may reasonably withhold such consent until they have received a satisfactory opinion of Company’s counsel regarding compliance of such revised form with any Requirement of Law reasonably expected to be applicable thereto. If, within five (5) Business Days of Administrative Agent’s receipt of a Notice of Amendment, the Administrative Agent has not provided a Material Change Notice to Company or Holdings, Company or Holdings may make the change or variation to the applicable form of Receivable Agreement proposed in such Notice of Amendment.
SECTION 7.    EVENTS OF DEFAULT
7.1    Events of Default. If any one or more of the following events shall occur.
(a)    Failure to Make Payments When Due. Other than with respect to a Borrowing Base Deficiency, failure by Company to pay (i) when due, the principal of and premium, if any, on any Revolving Loan whether at stated maturity (including on the Revolving Commitment Termination Date), by acceleration or otherwise; (ii) within two (2) Business Days after its due date, any interest on any Revolving Loan or any fee due hereunder; or (iii) within thirty (30) days after its due date, any other amount due hereunder; or
(b)    Default in Other Agreements.
(i)    Failure of Holdings or any Subsidiary of Holdings to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than SPV Indebtedness) with a principal amount in excess of

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$1,000,000, in each case beyond the grace period, if any, provided therefor; or breach or default by Holdings or any Subsidiary of Holdings with respect to any other material term of (1) one or more items of Indebtedness (other than SPV Indebtedness) with a principal amount in excess of $1,000,000, or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefore, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, such Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be, provided that any such failure, breach or default, as the case may be, shall constitute an Event of Default hereunder only after the Administrative Agent shall have provided written notice to Company that such failure, breach or default constitutes an Event of Default hereunder; or
(ii)    (A) Failure of any Subsidiary of Holdings (other than Company) to pay when due any principal of or interest on or any other amount payable in respect of one or more items of SPV Indebtedness with a principal amount in excess of $1,000,000; or (B) (1) breach or default by any such Subsidiary with respect to any material term of (x) one or more items of SPV Indebtedness with a principal amount in excess of $1,000,000, or (y) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of SPV Indebtedness and (2) the continuation of such breach or default for more than seven (7) Business Days (or, if such breach or default is subject to any grace period, for more than seven (7) Business Days beyond such grace period), if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, such Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be, provided that any such failure, breach or default, as the case may be, shall constitute an Event of Default hereunder only after the Administrative Agent shall have provided written notice to Company that such failure, breach or default constitutes an Event of Default hereunder; or
(c)    Breach of Certain Covenants. Failure of Company to perform or comply with any term or condition contained in Section 2.3, Section 2.11, Section 5.1(a), Section 5.1(f), Section 5.1(h), Section 5.2, Section 5.6, Section 5.7 or Section 6, or failure to distribute Collections in accordance with Section 2.12; or
(d)    Breach of Representations, etc. Any representation or warranty, certification or other statement made or deemed made by Company or Holdings (or Holdings as Servicer) in any Credit Document or in any statement or certificate at any time given by Company or Holdings (or Holdings as Servicer) in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect, other than any representation, warranty, certification or other statement which is qualified by materiality or “Material Adverse Effect”, in which case, such representation, warranty, certification or other statement shall be true and correct in all respects, in each case, as of the date made or deemed made and such default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an Authorized Officer of Company or Holdings

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becoming aware of such default, or (ii) receipt by Company of notice from any Agent or Lender of such default; or
(e)    Other Defaults Under Credit Documents. Company or Holdings shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents other than any such term referred to in any other Section of this Section 7.1 and such default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an Authorized Officer of Company or Holdings becoming aware of such default, or (ii) receipt by Company or Holdings of notice from Administrative Agent or any Lender of such default; or
(f)    Breach of Portfolio Performance Covenants. A breach of any Portfolio Performance Covenant shall have occurred and the Administrative Agent shall have provided written notice to the Company that a Default under this Section 7.1(f) has occurred and is continuing; or
(g)    Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of Company or Holdings in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against Company or Holdings under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Company or Holdings, or over all or a substantial part of its respective property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or Holdings for all or a substantial part of its respective property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or Holdings, and any such event described in this clause (ii) shall continue for sixty (60) days without having been dismissed, bonded or discharged; or
(h)    Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or Holdings shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its respective property; or Company or Holdings shall make any assignment for the benefit of creditors; or (ii) Company or Holdings shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of Company or Holdings (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7.1(g); or
(i)    Judgments and Attachments.

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(i)    Any money judgment, writ or warrant of attachment or similar process (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Company or any of its assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days; or
(ii)    Any money judgment, writ or warrant of attachment or similar process involving in any individual case or in the aggregate at any time an amount in excess of $1,000,000 (in any case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Holdings (or Holdings as Servicer) or any of its assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days; or
(iii)    Any tax lien or lien of the PBGC shall be entered or filed against Company or Holdings (involving, with respect to Holdings only, an amount in excess of $1,000,000) or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of ten (10) days;
(j)    Dissolution. Any order, judgment or decree shall be entered against Company or Holdings decreeing the dissolution or split up of Company or Holdings, as the case may be, and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days; or
(k)    Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to result in a Material Adverse Effect during the term hereof or result in a Lien being imposed on the Collateral; or (ii) Company shall establish or contribute to any Employee Benefit Plan; or
(l)    Change of Control. A Change of Control shall occur; or
(m)    Servicing Agreement. A Servicer Default shall have occurred and be continuing; or
(n)    Backup Servicer Default. The Backup Servicing Agreement shall terminate for any reason and, provided that the Administrative Agent shall have used commercially reasonable efforts to timely engage a replacement Backup Servicer following such termination, within ninety (90) days of such termination no replacement agreement with an alternative backup servicer shall be effective; or
(o)    Borrowing Base Deficiency; Repurchase Failure. (i) Failure by Company to pay any Borrowing Base Deficiency within two (2) Business Days after the due date thereof, or (ii) failure of Holdings to repurchase any Receivable as and when required under the Asset Purchase Agreement; or
(p)    Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof, (i) this Agreement or any Collateral Document ceases to be in full force and effect (other than in accordance with its terms) or shall be declared null and void by a

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court of competent jurisdiction or the enforceability thereof shall be impaired in any material respect, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document (in each case, other than (A) by reason of a release of Collateral in accordance with the terms hereof or thereof or (B) the satisfaction in full of the Obligations and any other amount due hereunder or any other Credit Document in accordance with the terms hereof); or (ii) any of the Credit Documents for any reason, other than the satisfaction in full of all Obligations and any other amount due hereunder or any other Credit Document (other than contingent indemnification obligations for which demand has not been made), shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void by a court of competent jurisdiction or a party thereto or Holdings, as the case may be, shall repudiate its obligations thereunder or shall contest the validity or enforceability of any Credit Document in writing; or
(q)    Breach of Financial Covenants. A breach of any Financial Covenant shall have occurred; or
(r)    Investment Company Act. Holdings or Company become subject to any federal or state statute or regulation which may render all or any portion of the Obligations unenforceable, or Company becomes a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940;
THEN, upon the occurrence of any Event of Default, the Administrative Agent may, and shall, at the written request of the Requisite Lenders, take any of the following actions: (w) upon notice to the Company, terminate the Revolving Commitments, if any, of each Lender having such Revolving Commitments, (x) upon notice to the Company, declare the unpaid principal amount of and accrued interest on the Revolving Loans and all other Obligations immediately due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company; (y) direct the Collateral Agent to enforce any and all Liens and security interests created pursuant to the Collateral Documents and (z) take any and all other actions and exercise any and all other rights and remedies of the Administrative Agent under the Credit Documents; provided that upon the occurrence of any Event of Default described in Section 7.1(g) or 7.1(h), the unpaid principal amount of and accrued interest on the Revolving Loans and all other Obligations shall immediately become due and payable, and  the Revolving Commitments shall automatically and immediately terminate, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company.  In addition, pursuant to the Servicing Agreement, the Administrative Agent may terminate the Servicing Agreement and appoint a Successor Servicer upon the occurrence of a Servicer Default.
SECTION 8.    AGENTS
8.1    Appointment of Agents. Each Lender hereby authorizes WC 2014-1, LLC to act as Administrative Agent to the Lenders hereunder and under the other Credit Documents and each Lender hereby authorizes WC 2014-1, LLC, in such capacity, to act as its agent in accordance with the terms hereof and the other Credit Documents. Each Lender hereby authorizes Deutsche Bank

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Trust Company Americas, to act as the Collateral Agent on its behalf under the Credit Documents. Each Agent hereby agrees to act upon the express conditions contained herein and the other Credit Documents, as applicable. The provisions of this Section 8 are solely for the benefit of Agents and Lenders and neither Company or Holdings shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent (other than Administrative Agent) shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings or any of its Subsidiaries.
8.2    Powers and Duties. Each Lender irrevocably authorizes each Agent (other than Administrative Agent) to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Lender irrevocably authorizes Administrative Agent to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Credit Documents. Each such Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No such Agent shall have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any such Agent any obligations in respect hereof or any of the other Credit Documents except as expressly set forth herein or therein.
8.3    General Immunity.
(a)    No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of Company or Holdings to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of Company or Holdings or any other Person liable for the payment of any Obligations or any other amount due hereunder or any other Credit Document, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Revolving Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, neither the Paying Agent nor the Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Revolving Loans or the component amounts thereof.

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(b)    Exculpatory Provisions Relating to Agents. No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. Each such Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 9.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each such Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and Company), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any such Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 9.5).
8.4    Agents Entitled to Act as Lender. Any agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Revolving Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection herewith and otherwise without having to account for the same to Lenders.
8.5    Lenders’ Representations, Warranties and Acknowledgment.
(a)    Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdings and Company in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdings and Company. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Revolving Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.

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(b)    Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Original Closing Date.
8.6    Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, their Affiliates and their respective officers, partners, directors, trustees, employees and agents of each Agent (each, an “Indemnitee Agent Party”), to the extent that such Indemnitee Agent Party shall not have been reimbursed by Company or Holdings, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
8.7    Successor Administrative Agent and Collateral Agent.
(a)    Administrative Agent.
(i)    Administrative Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to the Lenders and Company. Upon any such notice of resignation, the Requisite Lenders shall have the right, upon five (5) Business Days’ notice to Company, to appoint a successor Administrative Agent provided, that the appointment of a successor Administrative Agent shall require (so long as no Default or Event of Default has occurred and is continuing) Company’s approval, which approval shall not be unreasonably withheld, delayed or conditioned. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring

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Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Credit Documents, and (ii) take such other actions, as may be necessary or appropriate in connection with the appointment of such successor Administrative Agent, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.
(ii)    Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to one of its Affiliates without the prior written consent of, or prior written notice to, Company or the Revolving Lenders; provided that Company and the Lenders may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Company and the Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Credit Documents.
(b)    Collateral Agent.
(i)    Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders and Company. Upon any such notice of resignation, the Requisite Lenders shall have the right, upon five (5) Business Days’ notice to Company, to appoint a successor Collateral Agent provided, that the appointment of a successor Collateral Agent shall require (so long as no Default or Event of Default has occurred and is continuing) Company’s approval, which approval shall not be unreasonably withheld, delayed or conditioned. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent and the retiring Collateral Agent shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under the Credit Documents, and (ii) execute and deliver to such successor Collateral Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the appointment of such successor Collateral Agent and the assignment to such successor Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the provisions of this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent hereunder.

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(ii)    Notwithstanding anything herein to the contrary, Collateral Agent may assign its rights and duties as Collateral Agent hereunder to one of its Affiliates without the prior written consent of, or prior written notice to, Company or the Lenders; provided that Company and the Lenders may deem and treat such assigning Collateral Agent as Collateral Agent for all purposes hereof, unless and until such assigning Collateral Agent provides written notice to Company and the Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Collateral Agent hereunder and under the other Credit Documents.
8.8    Collateral Documents. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Collateral and the Collateral Documents. Subject to Section 9.5, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 9.5) have otherwise consented. Anything contained in any of the Credit Documents to the contrary notwithstanding, Company, the Agents and each Lender hereby agree that (a) no Lender shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Collateral Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (b) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations or any other amount due hereunder as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale.
SECTION 9.    MISCELLANEOUS
9.1    Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to Company, Collateral Agent or Administrative Agent shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing. Each notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided, no notice to any Agent shall be effective until received by such Agent, provided, however, that Company may deliver, or cause to be delivered, the Borrowing Base Certificate, Borrowing Base Report and any financial statements or reports (including any collateral

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performance tests) by electronic mail pursuant to procedures approved by the Administrative Agent until any Agent or Lender notifies Company that it can no longer receive such documents using electronic mail. Any Borrowing Base Certificate, Borrowing Base Report or financial statements or reports sent to an electronic mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, if available, return electronic mail or other written acknowledgement), provided, that if such document is sent after 5:00 p.m. Eastern Standard time, such document shall be deemed to have been sent at the opening of business on the next Business Day.
9.2    Expenses. Company agrees to pay promptly (a) (i) all the Administrative Agent’s actual, reasonable and documented out-of-pocket costs and expenses (including reasonable and customary fees and expenses of counsel to the Administrative Agent of negotiation, preparation, execution and administration of the Credit Documents, including the Credit Document Amendments and any consents, waivers or other amendments or modifications to the Credit Documents and (ii) reasonable and customary fees and expenses of a single counsel to the Lenders in connection with any consents, amendments, waivers or other modifications to the Credit Documents, including the Credit Document Amendments; (b) all the actual, documented out-of-pocket costs and reasonable out-of-pocket expenses of creating, perfecting and enforcing Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable and documented out-of-pocket fees, expenses and disbursements of a single counsel for all Agents; (c) subject to the terms of this Agreement (including any limitations set forth in Section 5.5), all the Administrative Agent’s actual, reasonable and documented out-of-pocket costs and reasonable fees, expenses for, and disbursements of any of Administrative Agent’s, auditors, accountants, consultants or appraisers incurred by Administrative Agent; (d) subject to the terms of this Agreement, all the actual, reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (e) subject in all cases to any express limitations set forth in any Credit Document, all other actual, reasonable and documented out-of-pocket costs and expenses incurred by each Agent in connection with the syndication of the Revolving Loans and Commitments and the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby; and (f) after the occurrence of a Default or an Event of Default, all documented, out-of-pocket costs and expenses, including reasonable attorneys’ fees, and costs of settlement, incurred by any Agent or any Lender in enforcing any Obligations of or in collecting any payments due from Company or Holdings hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.
9.3    Indemnity.
(a)    In addition to the payment of expenses pursuant to Section 9.2, whether or not the transactions contemplated hereby shall be consummated, Company agrees to defend (subject

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to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Affected Party and each Agent, their Affiliates and their respective officers, partners, directors, trustees, employees and agents (each, an “Indemnitee”), from and against any and all Indemnified Liabilities, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE excluding any amounts not otherwise payable by Company under Section 2.16(b)(iii); provided, Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable order of that Indemnitee. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 9.3 may be unenforceable in whole or in part because they are violative of any law or public policy, Company shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.
(b)    To the extent permitted by applicable law, Company shall not assert, and Company hereby waives, any claim against any affected Party or Agent and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Revolving Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Company hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
9.4    Reserved.
9.5    Amendments and Waivers.
(a)    Requisite Lenders’ Consent. Subject to Sections 9.5(b) and 9.5(c), no amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by Company or Holdings therefrom, shall in any event be effective without the written concurrence of Company, Administrative Agent and the Requisite Lenders.
(b)    Affected Lenders’ Consent. Without the written consent of each Lender (other than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i)    extend the scheduled final maturity of any Revolving Loan or Revolving Loan Note;
(ii)    waive, reduce or postpone any scheduled repayment (but not prepayment);

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(iii)    reduce the rate of interest on any Revolving Loan (other than any waiver of any increase in the interest rate applicable to any Revolving Loan pursuant to Section 2.8) or any fee payable hereunder;
(iv)    extend the time for payment of any such interest or fees;
(v)    reduce the principal amount of any Revolving Loan;
(vi)    (x) amend the definition of “Borrowing Base” or (y) amend, modify, terminate or waive Section 2.12, Section 2.13 or Section 2.14 or any provision of this Section 9.5(b) or Section 9.5(c);
(vii)    amend the definition of “Requisite Lenders”, “Revolving Exposure,” “Pro Rata Share,” “Applicable Advance Rate,” “Revolving Availability,” or any definition used therein; provided, with the consent of Administrative Agent, Company and the Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Original Closing Date;
(viii)    release all or substantially all of the Collateral except as expressly provided in the Credit Documents; or
(ix)    consent to the assignment or transfer by Company or Holdings of any of its respective rights and obligations under any Credit Document.
(c)    Other Consents. No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by Company or Holdings therefrom, shall:
(i)    increase any Revolving Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Revolving Commitment of any Lender;
(ii)    amend, modify, terminate or waive any provision of Section 3.3(a) with regard to any Credit Extension without the consent of the Requisite Lenders;
(iii)    amend the definitions of “Eligibility Criteria” or “Eligible Receivables Obligor” or amend any portion of Appendix C without the consent of each of the Requisite Lenders;
(iv)    amend or modify any provision of Sections 2.11, other than Sections 2.11(c)(vii) and 2.11(e), without the consent of each of the Requisite Lenders; provided, however, that, notwithstanding the foregoing, any such amendment or modification during the continuance of any Hot Backup Servicer Event, Event of Default or Servicer Default shall only require the consent of the Requisite Lenders;

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(v)    amend or modify any provision of Section 7.1 without the consent of each of the Requisite Lenders; provided, however, that, notwithstanding the foregoing, any waiver of the occurrence of a Default or an Event of Default shall only require the consent of the Requisite Lenders; or
(vi)    amend, modify, terminate or waive any provision of Section 8 as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.
(d)    Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to, with the concurrence of the Requisite Lenders or any Lender, execute amendments, modifications, waivers or consents on behalf of the Requisite Lenders or such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Company or Holdings in any case shall entitle Company or Holdings to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 9.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by Company, on Company. Notwithstanding anything to the contrary contained in this Section 9.5, if the Administrative Agent and Company shall have jointly identified an obvious error or any error or omission of a technical nature, in each case that is immaterial (as determined by the Administrative Agent in its sole discretion), in any provision of the Credit Documents, then the Administrative Agent (as applicable, and in its respective capacity thereunder, the Administrative Agent or Collateral Agent) and Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent by the Requisite Lenders if the same is not objected to in writing by the Requisite Lenders within five (5) Business Days following receipt of notice thereof.
9.6    Successors and Assigns; Participations.
(a)    Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. Neither Company’s rights or obligations hereunder nor any interest therein may be assigned or delegated by it without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, Indemnitee Agent Parties under Section 8.6, Indemnitees under Section 9.3, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Register. Company, the Paying Agent, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Revolving Loans listed therein for all purposes hereof, and no assignment or transfer of any such Revolving Commitment or Revolving Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and accepted by Administrative Agent and recorded in the Register as provided in Section 9.6(e). Prior to such recordation, all amounts owed with respect to the applicable

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Revolving Commitment or Revolving Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Revolving Commitments or Revolving Loans.
(c)    Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Revolving Commitment or Revolving Loans owing to it or other Obligations (provided, however, that each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Revolving Loan and any related Revolving Commitments) to any Person constituting an Eligible Assignee. Each such assignment pursuant to this Section 9.6(c) (other than an assignment to any Person meeting the criteria of clause (i) of the definition of the term of “Eligible Assignee”) shall be in an aggregate amount of not less than $10,000,000 (or such lesser amount as may be agreed to by Company and Administrative Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving Loans.
(d)    Mechanics. The assigning Lender and the assignee thereof shall execute and deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.16(d).
(e)    Notice of Assignment. Upon the Administrative Agent’s receipt and acceptance of a duly executed and completed Assignment Agreement and any forms, certificates or other evidence required by this Agreement in connection therewith, Administrative Agent shall (i) provide Paying Agent with written notice of such assignment, and shall record the information contained in such notice in the Register, (ii) give prompt notice thereof to Company, and (iii) maintain a copy of such Assignment Agreement.
(f)    Representations and Warranties of Assignee. Each Lender, upon execution and delivery of the Existing Credit Agreement or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Original Closing Date or as of the applicable Effective Date (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Revolving Commitments or Revolving Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its Revolving Commitments or Revolving Loans for its own account in the ordinary course of its business and without a view to distribution of such Revolving Commitments or Revolving Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 9.6, the disposition of such Revolving Commitments or Revolving Loans or any interests therein shall at all times remain within its exclusive control).

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(g)    Effect of Assignment. Subject to the terms and conditions of this Section 9.6, as of the “Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 9.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided, anything contained in any of the Credit Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising prior to the effective date of such assignment; (iii) the Revolving Commitments shall be modified to reflect the Revolving Commitment of such assignee and any Revolving Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any Revolving Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Revolving Loan Notes to Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Revolving Loan Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding Revolving Loans of the assignee and/or the assigning Lender.
(h)    Participations. Each Lender shall have the right at any time to sell one or more participations to any Person (other than Holdings, any of its Subsidiaries or any of its Affiliates or a Direct Competitor) in all or any part of its Revolving Commitments, Revolving Loans or in any other Obligation. The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Revolving Loan or Revolving Loan Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post‑default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Revolving Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Commitment or Revolving Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by Company of any of its rights and obligations under this Agreement, or (iii) release all or substantially all of the Collateral under the Collateral Documents (except as expressly provided in the Credit Documents) supporting the Revolving Loans hereunder in which such participant is participating. Company agrees that each participant shall be entitled to the benefits of Sections 2.15 or 2.16 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (c) of this Section; provided, (i) a participant shall not be entitled to receive any greater payment under Sections 2.15 or 2.16 than the applicable Lender would have been entitled to receive with respect to the

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participation sold to such participant, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the participant acquired the applicable participation, unless the sale of the participation to such participant is made with Company’s prior written consent, and (ii) a participant that would be a Non‑US Lender if it were a Lender shall not be entitled to the benefits of Section 2.16 unless Company (through a Designated Officer) is notified of the participation at the time it is sold to such participant and such participant agrees, for the benefit of Company, to comply with Section 2.16 as though it were a Lender. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 9.4 as though it were a Lender, provided such Participant agrees to be subject to Section 2.14 as though it were a Lender. Any Lender that sells such a participation shall, acting solely for this purpose as an agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in such participation and other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person other than Company (through a Designated Officer), including the identity of any Participant or any information relating to a Participant’s interest or obligations under any Credit Document, except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Paying Agent (in its capacity as Paying Agent) shall have no responsibility for maintaining a Participant Register. The Register shall be available for inspection by Company at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, the Paying Agent (in its capacity as Paying Agent) shall have no responsibility for maintaining a Participant Register. The Register shall be available for inspection by any Designated Officer of Company at any reasonable time and from time to time upon reasonable prior notice. Company shall not disclose the identity of any Participant of any Lender or any information relating to such Participant’s interest or obligation to any Person, provided that Company may make (1) disclosures of such information to Affiliates of such Lender and to their agents and advisors provided that such Persons are informed of the confidential nature of the information and will be instructed to keep such information confidential, and (2) disclosures required or requested by any Governmental Authority or representative thereof or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided, that unless specifically prohibited by applicable law or court order, Company shall make reasonable efforts to notify the applicable Lender of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of Company by such Governmental Authority) for disclosure of any such non‑public information prior to disclosure of such information.
(i)    Certain Other Assignments. In addition to any other assignment permitted pursuant to this Section 9.6 any Lender may assign, pledge and/or grant a security interest in, all or any portion of its Revolving Loans, the other Obligations owed by or to such Lender, and its Revolving Loan Notes, if any, to secure obligations of such Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors

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of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided, no Lender, as between Company and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further, in no event shall the applicable Federal Reserve Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
9.7    Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
9.8    Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of Company set forth in Sections 2.15, 2.16, 9.2, 9.3 and 9.10, the agreements of Lenders set forth in Sections 2.14 and 8.6 shall survive the payment of the Revolving Loans and the termination hereof.
9.9    No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
9.10    Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of Company or any other Person or against or in payment of any or all of the Obligations or any other amount due hereunder. To the extent that Company makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent, Collateral Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.

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9.11    Severability. In case any provision in or obligation hereunder or any Revolving Loan Note or other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
9.12    Obligations Several; Actions in Concert. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. Anything in this Agreement or any other Credit Document to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or any Revolving Loan Note or otherwise with respect to the Obligations without first obtaining the prior written consent of the applicable Agent (other than the Paying Agent) or Requisite Lenders (as applicable), it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and any Revolving Loan Note or otherwise with respect to the Obligations shall be taken in concert and at the direction or with the consent of Agent or Requisite Lenders (as applicable).
9.13    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
9.14    APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.15    CONSENT TO JURISDICTION.
(a)    ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 9.1 AND TO ANY PROCESS AGENT SELECTED IN ACCORDANCE WITH SECTION 3.1 ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (d) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED

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BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
(b)    COMPANY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 9.1 OR ON CORPORATION SERVICE COMPANY, 1180 AVENUE OF THE AMERICAS, SUITE 120, NEW YORK, NEW YORK 10036 AND HEREBY APPOINTS CORPORATION SERVICE COMPANY, AS ITS AGENT TO RECEIVE SUCH SERVICE OF PROCESS. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST COMPANY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE. IN THE EVENT CORPORATION SERVICE COMPANY SHALL NOT BE ABLE TO ACCEPT SERVICE OF PROCESS AS AFORESAID AND IF COMPANY SHALL NOT MAINTAIN AN OFFICE IN NEW YORK CITY, COMPANY SHALL PROMPTLY APPOINT AND MAINTAIN AN AGENT QUALIFIED TO ACT AS AN AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THE COURTS SPECIFIED IN THIS SECTION 9.15 ABOVE, AND ACCEPTABLE TO THE ADMINISTRATIVE AGENT, AS COMPANY’S AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON COMPANY’S BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING.
9.16    WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY

105    


TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE REVOLVING LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
9.17    Confidentiality. Each Agent and Lender shall hold all non‑public information regarding Holdings and its Subsidiaries and their businesses obtained by such Lender or Agent confidential and shall not disclose such information; provided, however, that, in any event, a Lender or Agent may make (a) disclosures of such information to Affiliates of such Lender or Agent and to their agents, auditors, attorneys and advisors (and to other persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 9.17) provided that such Persons are informed of the confidential nature of the information and agree to keep, or with respect to the Collateral Agent and Paying Agent such Persons will be instructed to keep, such information confidential, (b) disclosures of such information to any other Lender or Agent, (c) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by such Lender of any Revolving Loans or any participations therein, provided that no disclosure shall be made to any Direct Competitor except in connection with an assignment or potential assignment to a Direct Competitor that is an Eligible Assignee and such Persons are informed of the confidential nature of the information and agree to hold such confidential information substantially in accordance with the terms of this Section 9.17, (d) disclosure to any rating agency when required by it, (e) disclosure to any Lender’s financing source or the directors, trustees, officers, employees, agents, attorneys, independent or internal auditors, financial advisors or other professional advisors of such financing source who, in each case, agree to hold confidential such confidential information substantially in accordance with this Section 9.17, (f) disclosures required by any applicable statute, law, rule or regulation or requested by any Governmental Authority or representative thereof or by any regulatory body or by the NAIC or pursuant to legal or judicial process or other legal proceeding; provided, that unless specifically prohibited by applicable law or court order, each Lender or Agent shall make reasonable efforts to notify Company of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender or Agent by such Governmental Authority) for disclosure of any such non‑public information prior to disclosure of such information, and (e) any other disclosure authorized by the Company in writing in advance. Notwithstanding the foregoing, (i) the foregoing shall not be construed to prohibit the disclosure of any information that is or becomes publicly known or information obtained by a Lender or Agent from sources other than the Company other than as a result of a disclosure by an Agent or Lender known (or that should have reasonably been known) to be in violation of this Section 9.17, and (ii) on or after the Original Closing Date, the Administrative Agent may, at its own expense issue news releases and publish “tombstone” advertisements and other announcements generally describing this transaction in newspapers, trade journals and other appropriate media (which may include use of logos of Company or Holdings) (collectively, “Trade Announcements”). Company shall not issue, and shall cause Holdings not to issue, any Trade Announcement using the name of any Agent or Lender, or their respective Affiliates or referring to this Agreement or the other Credit Documents, or the transactions

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contemplated thereunder except (x) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (y) with the prior approval of Administrative Agent (such approval not to be unreasonably withheld).
9.18    Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Revolving Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Revolving Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Company shall pay to Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Company to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Revolving Loans made hereunder or be refunded to Company. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.
9.19    Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.
9.20    Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof.
9.21    Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Company that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies Company, which information includes the name and address of Company and other information that will allow such Lender or Administrative Agent, as applicable, to identify Company in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
 
ON DECK CAPITAL, INC., for purposes of Section 5.10 only


By: /s/ Howard Katzenberg   
Name: Howard Katzenberg
Title: Chief Financial Officer


ON DECK ASSET COMPANY, LLC, as Company


By: /s/ Howard Katzenberg   
Name: Howard Katzenberg
Title: Chief Financial Officer


WC 2014-1, LLC, as Administrative Agent


By: /s/ Partick Lo   
Name: Patrick Lo
Title: MD


WC 2014-1, LLC, as a Lender


By: /s/ Patrick Lo   
Name: Patrick Lo
Title: MD


 
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent and Collateral Agent


By: /s/ Christopher Corcoran
Name: Christopher Corcoran
Title: Director


By: /s/ Kara Hernandez   
Name: Kara Hernandez
Title: Associate



Exhibit


Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO
SECURITIES EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED PURSUANT
TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Noah Breslow, certify that:
 
1.
I have reviewed this Annual Report on Form 10-Q of On Deck Capital, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.






Date: August 9, 2016
 
/s/ Noah Breslow
 
Noah Breslow
Chief Executive Officer


Exhibit


Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO
SECURITIES EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED PURSUANT
TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Howard Katzenberg, certify that:
 
1.
I have reviewed this Annual Report on Form 10-Q of On Deck Capital, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.






Date: August 9, 2016
 
/s/ Howard Katzenberg
 
Howard Katzenberg
Chief Financial Officer


Exhibit


Exhibit 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Noah Breslow, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in my capacity as Chief Executive Officer of On Deck Capital, Inc. (the "Company"), that, to my knowledge, the Quarterly Report of the Company on Form 10-Q for the fiscal quarter ended June 30, 2016 as filed with the Securities and Exchange Commission (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: August 9, 2016
 
/s/ Noah Breslow
 
Noah Breslow
Chief Executive Officer


Exhibit


Exhibit 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Howard Katzenberg, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in my capacity as Chief Financial Officer of On Deck Capital, Inc. (the "Company"), that, to my knowledge, the Quarterly Report of the Company on Form 10-Q for the fiscal quarter ended June 30, 2016 as filed with the Securities and Exchange Commission (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: August 9, 2016
 
/s/ Howard Katzenberg
 
Howard Katzenberg
Chief Financial Officer


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