Exhibit 10.1
FIFTH AMENDMENT TO SALE AND SERVICING AGREEMENT
(Hercules Funding Trust I)
THIS FIFTH AMENDMENT TO THE SALE AND SERVICING AGREEMENT, dated as of
March 30, 2007 (this "Amendment"), is entered into in donnection with that
certain Sale and Servicing Agreement, dated as of August 1, 2005 (as amended,
supplemented, restated or replaced from time to time, the "Sale and Servicing
Agreement"), by and among Hercules Funding Trust 1, as the issuer (together with
its successors and assigns in such capacity, the "Issuer"), Hercules Funding I,
LLC, as the depositor (together with its successors and assigns in such
capacity, the "Depositor"), Hercules Technology Growth Capital, Inc., as the
originator (together with its successors and assigns in such capacity, the
"Originator") and as the servicer (together with its successors and assigns in
such capacity, the "Servicer"), U.S. Bank National Association, as the indenture
trustee (together with its successors and assigns in such capacity, the
"Indenture Trustee") and as the collateral custodian (together with its
successors and assigns in such capacity, the "Collateral Custodian"), Lyon
Financial Services, Inc, dlblal U.S. Bank Portfolio Services, as the backup
servicer (together with its successors and assigns in such capacity, the "Backup
Servicer") and Citigroup Global Markets Realty Corp., as the initial noteholder
(together with its successors and assigns in such capacity, the "Initial
Noteholder"). Capitalized terms used and not otherwise defined herein shall have
the meanings given to such terms in the Sale and Servicing Agreement.
RECITALS
WHEREAS, the above-named parties have entered into the Sale and
Servicing Agreement, and, pursuant to and, in accordance with Section 11.02
thereof, the parties hereto desire to amend the Sale and Servicing Agreement in
certain respects as provided herein;
NOW, THEREFORE, based upon the above Recitals, the mutual premises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned,
intending to be legally bound, hereby agree as follows:
SECTION 1. AMENDMENT.
The definition of "Facility Amount" in Section 1.1 of the Sale and
Servicing Agreement is hereby amended and restated in its entirety as follows:
"Facility Amount": On any date of determination (i) during the
Revolving Period, an amount equal to $150,000,000 and (ii) after the end of the
Revolving Period, an amount equal to $0.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, all provisions of the Sale and
Servicing Agreement shall remain in full force and effect. This Amendment shall
not be deemed to expressly or impliedly waive, amend or supplement any provision
of the Sale and Servicing Agreement other than as expressly set forth herein and
shall not constitute a novation of the Sale and Servicing Agreement.
SECTION 3. REPRESENTATIONS.
Each of the Issuer, Originator, Depositor and Servicer represent and
warrant as of the date of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization;
(ii) the execution, delivery and performance by it of this Amendment
are within its powers have been duly authorized, and do not violate
{A) its charter, by-laws, or other organizational documents, or (B) any
Applicable Law;
(iii) no consent, license, permit, approval or authorization of, or
registration, filing or declaration with any governmental authority is
required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment by or against it;
(iv) this Amendment has been duly executed and delivered by it;
(v) this Amendment constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity; and
(vi) there is no Servicer Default, Event of Default or termination or
optional termination, each as described in the Sale and Servicing
Agreement.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Amendment is conditioned upon the delivery of
executed signature pages by all pa 1.ies hereto.
SECTION 5. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement.
(b) The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except
as provided in the Sale and Servicing Agreement.
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(d) The failure or unenforceability of any provision hereof shall
not affect the other provisions of this Amencment.
(e) Whenever the context and construction so require, all words used
in the singular number herein shall be deemed to have been used in the plural,
and vice versa, and the masculine gender shall include the feminine and neuter
and the neuter shall include the masculine and feminine.
(f) This Amendment represents the final agreement between the
parties only with respect to the subject matter expressly covered hereby and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements between the parties. There are no unwritten oral agreements between
the parties.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS (OTHER, THAN SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK}.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their respecaive officers thereunto duly authorized, as of the date
first written above.
THE ISSUER HERCULES FUNDING TRUST I
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Financial Services
Officer
DEPOSITOR: HERCULES FUNDING LLC
By:
------------------------------------
Name:
Title:
THE ORIGINATOR HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
AND SERVICER:
By:
------------------------------------
Name:
Title:
THE COLLATERAL CUSTODIAN AND U.S. BANK NATIONAL ASSOCIATION
INDENTURE TRUSTEE:
By:
-------------------------------------
Name:
Title:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their respecaive officers thereunto duly authorized, as of the date
first written above.
THE ISSUER: HERCULES FUNDING TRUST I
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By:
-------------------------------------
Name:
Title:
DEPOSITOR: HERCULES FUNDING I LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: CEO
THE ORIGINATOR HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
AND SERVICER:
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: CFO
THE COLLATERAL CUSTODIAN AND U.S. BANK NATIONAL ASSOCIATION
INDENTURE TRUSTEE:
By:
-------------------------------------
Name:
Title:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their respecaive officers thereunto duly authorized, as of the date
first written above.
THE ISSUER: HERCULES FUNDING TRUST I
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By:
-------------------------------------
Name:
Title:
DEPOSITOR: HERCULES FUNDING I LLC
By:
-------------------------------------
Name:
Title:
THE ORIGINATOR HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
AND SERVICER:
By:
------------------------------------
Name:
Title:
THE COLLATERAL CUSTODIAN AND U.S. BANK NATIONAL ASSOCIATION
INDENTURE TRUSTEE:
By:/s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
THE BACKUP SERVICER: LYON FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
THE PAYING AGENT: U.S. BANK NATIONAL ASSOCTIATION
By:
-------------------------------------
Name:
Title:
THE INITIAL NOTE HOLDER: CITIGROUP GLOBAL MARKETS REALTY CORP.
By:
-------------------------------------
Name:
Title:
THE BACKUP SERVICER: LYON FINANCIAL SERVICES, INC.
By:
------------------------------------
Name:
Title:
THE PAYING AGENT: U.S. BANK NATIONAL ASSOCTIATION
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
THE INITIAL NOTE HOLDER: CITIGROUP GLOBAL MARKETS REALTY CORP.
By:
-------------------------------------
Name:
Title:
THE BACKUP SERVICER: LYON FINANCIAL SERVICES, INC.
By:
------------------------------------
Name:
Title:
THE PAYING AGENT: U.S. BANK NATIONAL ASSOCTIATION
By:
------------------------------------
Name:
Title:
THE INITIAL NOTE HOLDER: CITIGROUP GLOBAL MARKETS REALTY CORP.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Authorized Signer
