Exhibit 10.1
SECOND OMNIBUS AMENDMENT
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(Hercules Funding Trust I)
THIS SECOND OMNIBUS AMENDMENT, dated as of December 6, 2006 (this
"Amendment"), is entered into by and among:
HERCULES FUNDING TRUST I, 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., ("Hercules"), 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, ("U.S. Bank"), 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. d/b/a/ 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., ("Citigroup"), 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 (as defined
below).
R E C I T A L S
WHEREAS, the Issuer, the Depositor, the Originator, the Indenture Trustee and
the Backup Servicer entered into that certain Sale and Servicing Agreement,
dated as of August 1, 2005 (as further amended, supplemented, modified, replaced
or restated from time to time, the "Sale and Servicing Agreement");
WHEREAS, Hercules and Citigroup entered into that certain Warrant Participation
Agreement, dated as of August 1, 2005 (as further amended, supplemented
modified, replaced or restated from time to time, the "Warrant Participation
Agreement"), together with the Sale and Servicing Agreement, the "Amended
Agreements");
WHEREAS, the Issuer, the Depositor, the Originator, the Indenture Trustee and
the Backup Servicer entered into that certain First Amendment to the Sale and
Servicing Agreement, dated as of November 30, 2005;
WHEREAS, the Issuer, the Depositor, the Originator, the Indenture Trustee, the
Backup Servicer and the Initial Noteholder entered into that certain Third
Amendment to the Sale and Servicing Agreement, dated as of July 28, 2006;
WHEREAS, Hercules and Citigroup entered into that certain Second Amendment to
the Warrant Participation Agreement, dated as of October 16, 2006;
WHEREAS, the Issuer, the Depositor, the Originator, the Indenture Trustee, the
Backup Servicer and the Initial Noteholder entered into that certain First
Omnibus Amendment, amending certain documents including the Warrant
Participation Agreement and the Sale and Servicing Agreement dated as of March
6, 2006; and
WHEREAS, the applicable parties hereto desire to further amend the Warrant
Participation Agreement and to further 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. AMENDMENTS TO THE SALE AND SERVICING AGREEMENT
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(a) 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 (excluding the period described in clause (ii) herein), an amount
equal to $125,000,000, (ii) during the Revolving Period from December 6,
2006 until the earlier of (a) March 31, 2007 or (b) the execution of a
Permitted Securitization, an amount equal to $150,000,000 and (iii) after
the end of the Revolving Period, an amount equal to $0.
SECTION 2. AMENDMENTS TO THE WARRANT PARTICIPATION AGREEMENT.
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(a) The definition of "Maximum Participation Limit" in Section 1 of the
Warrant Participation Agreement is hereby amended and restated in its entirety
as follows:
"Maximum Participation Limit" shall mean (i) $3,750,000 (excluding the
period described in clause (ii) herein) or (ii) $4,500,000 during the
Revolving Period from December 6, 2006 until the earlier of (a) March 31,
2007 or (b) the execution of a Permitted Securitization.
SECTION 3. Agreements in Full Force and Effect as Amended.
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Except as specifically amended hereby, all provisions of the Amended Agreements
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 Amended
Agreements other than as expressly set forth herein and shall not constitute a
novation of any of the Amended Agreements.
SECTION 4. Representations.
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Each of the Issuer, the Originator, the Depositor and the Servicer represents
and warrants as of the date of this Amendment as follows:
(a) it is duly incorporated or organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization;
(b) 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;
(c) 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;
(d) this Amendment has been duly executed and delivered by it;
(e) 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
(f) there is no Servicer Default, Event of Default or termination or
optional termination, each as described in the Sale and Servicing Agreement.
SECTION 5. Conditions PRECEDENT.
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The effectiveness of this Amendment is conditioned upon the following:
(i) the delivery of executed signature pages by all parties hereto; and
(ii) the surrender and cancellation of the Amended and Restated Note,
dated March 6, 2006, in a maximum principal amount of $125,000,000 and the
delivery to the Initial Noteholder of a duly executed and authenticated Note in
a maximum principal amount of $150,000,000 (the "Replacement Note").
SECTION 6. Miscellaneous.
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(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.
(d) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(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) Depositor hereby instructs Wilmington Trust Company, a Delaware banking
corporation, as owner trustee for the Issuer ("Owner Trustee"), to execute and
deliver, not in its individual capacity but solely as Owner Trustee, (i) the
Issuer Order, addressed to the Indenture Trustee and delivered pursuant to
Section 2.08 of the Indenture, (ii) the Replacement Note and (ii) this
Amendment.
(h) 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]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
Date: December 6, 2006 Hercules Funding Trust I
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Financial Services Officer
Date: December 6, 2006 Hercules Funding I LLC
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Chief Legal Officer
Date: December 6, 2006 Hercules Technology Growth Capital, Inc.
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Chief Legal Officer
Date: December 6, 2006 U.S. Bank National Association
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President
Date: December 6, 0000 Xxxx Financial Services, Inc.
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Senior Vice President
Date: December 6, 2006 U.S. Bank National Association
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President
Date: December 6, 2006 Citigroup Global Markets Realty Corp.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Authorized Signer
