exv10w1



 








Exhibit 10.1




THIRD AMENDMENT TO SALE AND SERVICING AGREEMENT

(Hercules Funding Trust I)




     THIS THIRD AMENDMENT TO THE SALE AND SERVICING AGREEMENT, dated as of July 28, 2006 (this
“Amendment”), is entered into in connection 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 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., 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. 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., 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.



R E C I T A L S




     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 “Amortization Date ” in Section 1.1 of the Sale and Servicing Agreement
is hereby amended and restated in its entirety as follows:



     ““Amortization Date”: The date that occurs 364 days after July 31, 2006 (or if such
date is not a Business Day, the preceding Business Day), as such date may be extended pursuant to
Section 2.09.”



     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 following:



     (i) delivery of executed signature pages by all parties hereto;



     (ii) confirmation by the Initial Noteholder of receipt in immediately available funds of
$312,500.00, constituting payment by the Issuer of the Renewal Fee.



     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.



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     (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) By its signature below, the Indenture Trustee acknowledges that this Amendment shall
constitute the notice required by Section 2.09 of the Sale and Servicing Agreement.



     (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]




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     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.



	 	 	 	 	 
	THE ISSUER:	 	HERCULES FUNDING TRUST I
	 
	 	 	 	 
	 	 	By: Wilmington Trust Company, not in its

individual capacity, but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Rachel L. Simpson
	 

	 	 	 	 
	 

	 	 	 	Name: Rachel L. Simpson

Title: Sr. Financial Services Officer
	 
	 	 	 	 
	DEPOSITOR:	 	HERCULES FUNDING I LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Scott Harvey
	 

	 	 	 	 
	 

	 	 	 	Name: Scott Harvey

Title: Vice President
	 
	 	 	 	 
	THE ORIGINATOR
	 	 	 	 
	AND SERVICER:	 	HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ David M. Lund
	 

	 	 	 	 
	 

	 	 	 	Name: David M. Lund

Title: Vice President Finance
	 
	 	 	 	 
	THE COLLATERAL CUSTODIAN
	 	 	 	 
	AND INDENTURE TRUSTEE:	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kyle Harcourt
	 

	 	 	 	 
	 

	 	 	 	Name: Kyle Harcourt

Title: Vice President






[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]




 









 





	 	 	 	 	 
	THE BACKUP SERVICER:	 	LYON FINANCIAL SERVICES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Lisa M. Olm
	 

	 	 	 	 
	 

	 	 	 	Name: Lisa M. Olm

Title: Director of Contract Administration
	 
	 	 	 	 
	THE PAYING AGENT:	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kyle Harcourt
	 

	 	 	 	 
	 

	 	 	 	Name: Kyle Harcourt

Title: Vice President
	 
	 	 	 	 
	THE INITIAL NOTEHOLDER:	 	CITIGROUP GLOBAL MARKETS REALTY CORP.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John Pawlowski
	 

	 	 	 	 
	 

	 	 	 	Name: John Pawlowski

Title: Authorized Signer