Exhibit 99.3
LOAN SALE AGREEMENT
between
HERCULES FUNDING I LLC
as Depositor
and
HERCULES TECHNOLOGY GROWTH CAPITAL,
INC.
as Originator
Dated as of August 1, 2005
HERCULES FUNDING TRUST I
ASSET BACKED NOTES
|
|
|
|
|
|
|
ARTICLE I
|
|
DEFINITIONS;
CONSTRUCTION
|
|
1
|
|
|
|
|
|
Section 1.01
|
|
Definitions
|
|
1
|
|
Section 1.02
|
|
Construction
|
|
3
|
|
|
|
|
|
ARTICLE II
|
|
SALE OF THE
ASSIGNED ASSETS; PAYMENT OF PURCHASE PRICE
|
|
3
|
|
|
|
|
|
Section 2.01
|
|
Sale of the
Assigned Assets to the Depositor
|
|
3
|
|
Section 2.02
|
|
Obligations of
Originator
|
|
5
|
|
|
|
|
|
ARTICLE III
|
|
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
|
6
|
|
|
|
|
|
Section 3.01
|
|
Originator’s Representations and
Warranties
|
|
6
|
|
Section 3.02
|
|
Retransfer of
Purchased Assets
|
|
6
|
|
Section 3.03
|
|
Substitutions
|
|
7
|
|
Section 3.04
|
|
Deemed
Collections
|
|
8
|
|
Section 3.05
|
|
Repurchase
Limitations
|
|
9
|
|
|
|
|
|
ARTICLE IV
|
|
ORIGINATOR
COVENANTS
|
|
9
|
|
|
|
|
|
Section 4.01
|
|
Covenants of
the Originator
|
|
9
|
|
|
|
|
|
ARTICLE V
|
|
TERMINATION
|
|
9
|
|
|
|
|
|
Section 5.01
|
|
Termination
|
|
9
|
|
|
|
|
|
ARTICLE VI
|
|
MISCELLANEOUS
PROVISIONS
|
|
10
|
|
Section 6.01
|
|
Amendment
|
|
10
|
|
Section 6.02
|
|
GOVERNING
LAW
|
|
10
|
|
Section 6.03
|
|
Notices
|
|
10
|
|
Section 6.04
|
|
Severability of
Provisions
|
|
11
|
|
Section 6.05
|
|
Counterparts
|
|
11
|
|
Section 6.06
|
|
Further
Agreements
|
|
11
|
|
Section 6.07
|
|
Intention of
the Parties
|
|
11
|
|
Section 6.08
|
|
Successors and
Assigns; Assignment of Loan Sale Agreement
|
|
12
|
|
Section 6.09
|
|
Survival
|
|
12
|
|
Section 6.10
|
|
Successors and
Assigns
|
|
12
|
|
|
|
|
|
EXHIBIT
|
|
|
|
|
|
|
|
|
|
Exhibit A
|
|
Form of LSA
Assignment
|
|
|
- i -
LOAN SALE AGREEMENT
LOAN SALE AGREEMENT, dated as of
August 1, 2005 (this “ Agreement ”), between
HERCULES TECHNOLOGY GROWTH CAPITAL, INC., a Maryland corporation
(the “ Originator ”), and HERCULES FUNDING I
LLC, a Delaware limited liability company (the “
Depositor ”).
W I T N E S
S E T H
WHEREAS, the Originator owns and
from time to time originates certain commercial loans secured by,
among other things, accounts receivable, inventory, real estate,
and/or other tangible or intangible property;
WHEREAS, the Originator is the owner
of 100% of the membership interests of the Depositor;
WHEREAS, the parties hereto desire
that on each Transfer Date the Originator sell all its right, title
and interest in and to the Assigned Assets identified in the
related LSA Assignment to the Depositor pursuant to the terms of
this Agreement; and
WHEREAS, on the Closing Date, to the
extent of any Assigned Assets sold hereunder on the Closing Date,
and on each Transfer Date, with respect to the Assigned Assets
identified in the applicable LSA Assignment the Depositor will sell
and assign all of its right, title and interest in and to the
Assigned Assets and its related rights under this Agreement to
Hercules Funding Trust I, as Issuer (the “ Issuer
”), and on the Closing Date the Depositor will further assign
its related rights under this Agreement to the Issuer, all pursuant
to the terms of the Sale and Servicing Agreement, dated as of
August 1, 2005 (the “ Sale and Servicing Agreement
”), among the Issuer, the Depositor, the Originator, the
Servicer, U.S. Bank National Association, as Collateral Custodian
(in such capacity, the “ Collateral Custodian
”), as Indenture Trustee (in such capacity, the “
Indenture Trustee ”) on behalf of the related
Noteholders and Lyon Financial Services, Inc. doing business as
U.S. Bank Portfolio Services, as Backup Servicer (in such capacity,
the “ Backup Servicer ”);
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions .
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings
specified in this Article. All other capitalized terms used but not
defined herein shall have the meanings assigned thereto in the Sale
and Servicing Agreement.
“ Assigned Assets
”: All right, title and interest, whether now owned or
hereafter acquired or arising, and wherever located, of the
Originator in and to the property described in clauses (i) through
(x) below and all accounts, cash and currency, chattel paper,
tangible chattel
paper, electronic chattel paper,
copyrights, copyright licenses, equipment, fixtures, contract
rights, general intangibles, instruments, certificates of deposit,
certificated securities, uncertificated securities, financial
assets, securities entitlements, commercial tort claims, deposit
accounts, inventory, investment property, letter-of-credit rights,
software, supporting obligations, accessions, and other property
consisting of, arising out of, or related to any of the following
(in each case excluding the Retained Interest and the Excluded
Amounts):
(i) the Transferred Loans, and all
monies due or to become due in payment of such Transferred Loans on
and after the related Transfer Date, including but not limited to
all Collections and all obligations owed to the Originator in
connection with the Transferred Loans;
(ii) any Related Property securing
or purporting to secure the Transferred Loans (to the extent the
Originator, other than solely in its capacity as collateral agent
under any loan agreement with an Obligor, has been granted a Lien
thereon) including the related security interest granted by the
Obligor under the Transferred Loans, all proceeds from any sale or
other disposition of such Related Property;
(iii) all security interests, liens,
guaranties, warranties, letters of credit, accounts, bank accounts,
mortgages or other encumbrances and property subject thereto from
time to time purporting to secure payment of any Transferred Loan,
together with all UCC financing statements or similar filings
relating thereto;
(iv) all claims (including
“claims” as defined in Bankruptcy Code § 101(5)),
suits, causes of action, and any other right of the Originator,
whether known or unknown, against the related Obligors, if any, or
any of their respective Affiliates, agents, representatives,
contractors, advisors, or any other Person that in any way is based
upon, arises out of or is related to any of the foregoing,
including, to the extent permitted to be assigned under applicable
law, all claims (including contract claims, tort claims,
malpractice claims, and claims under any law governing the purchase
and sale of, or indentures for, securities), suits, causes of
action, and any other right of the Originator against any attorney,
accountant, financial advisor, or other Person arising under or in
connection with the related Loan Documents;
(v) all cash, securities, or other
property, and all setoffs and recoupments, received or effected by
or for the account of the Originator under such Transferred Loans
(whether for principal, interest, fees, reimbursement obligations,
or otherwise) after the related Transfer Date, including all
distributions obtained by or through redemption, consummation of a
plan of reorganization, restructuring, liquidation, or otherwise of
any related Obligor or the related Loan Documents, and all cash,
securities, interest, dividends, and other property that may be
exchanged for, or distributed or collected with respect to, any of
the foregoing;
(vi) all Insurance
Policies;
(vii) the Loan Documents with
respect to such Transferred Loans;
- 2 -
(viii) the Collection Account, the
Principal Collections Account, the Distribution Account, and the
Concentration Account (to the extent that amounts on deposit in or
credited to the Concentration Account relate to the Collateral),
together with all funds held in or credited to such accounts (to
the extent that amounts on deposit in or credited to the
Concentration Account relate to the Collateral), and all
certificates and instruments, if any, from time to time
representing or evidencing each of the foregoing or such
funds;
(ix) any Hedging Agreement and any
payment from time to time due thereunder; and
(x) the proceeds of each of the
foregoing.
“ Purchase Price
”: Has the meaning provided in Section 2.01(b)
.
Section 1.02 Construction .
For purposes of this Agreement: (i) the singular includes the
plural and the plural includes the singular; (ii) words importing
any gender include the other genders; (iii) the words
“and” and “or” are used in the conjunctive
or disjunctive as the sense and circumstances may require, (iv)
references to “writing” include printing, typing,
lithography and other means of reproducing words in a visible form;
(v) references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein
entered into in accordance with their respective terms and not
prohibited by this Agreement or the Basic Documents; (vi)
references to Persons include their permitted successors and
assigns; (vii) any form of the word “include” shall be
deemed to be followed by the words “without
limitation”; (viii) the phrase “in and to” shall
be deemed to include “under” and “with respect
to” whenever appropriate; (ix) unless the context clearly
requires otherwise, the word “finance” shall be deemed
to include “refinance”; (x) the words
“herein”, “hereof’ and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision; and (xi) Article, Section, Schedule
and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this
Agreement. Unless otherwise stated in this Agreement, in the
computation of a period of time from a specified date to a later
specified date, the word “from” means “from and
including” and the words “to” and
“until” each mean “to but
excluding.”
ARTICLE II
SALE OF THE ASSIGNED ASSETS; PAYMENT OF PURCHASE
PRICE
Section 2.01 Sale of the Assigned
Assets to the Depositor . (a) On the terms and conditions of
this Agreement, on each Transfer Date during the Revolving Period,
the Originator agrees to offer for sale and to sell, the Assigned
Assets described in the related LSA Assignment substantially in the
form attached hereto as Exhibit A (the “ LSA
Assignment ”) to the Depositor and to deliver the related
Loan Documents to or at the direction of the Depositor and the
Depositor agrees to purchase such Assigned Assets offered for sale
by the Originator.
(b) The purchase price for each
Transferred Loan and the Related Property and other collateral
constituting part of the Assigned Assets with respect to such
Transferred
- 3 -
|
|
Loan sold to the Depositor hereunder
on any Transfer Date shall be the Outstanding Loan Balance of the
related Transferred Loan (the “ Purchase Price
”). The Purchase Price shall be paid in immediately available
funds. If the Depositor does not have sufficient funds to pay the
full amount of the Purchase Price (after taking into account the
proceeds the Depositor expects to receive pursuant to the Sale and
Servicing Agreement), the difference between the Purchase Price and
the immediately available funds shall be represented as a capital
contribution by the Originator to the Depositor.
|
(c) On each Transfer Date, the
Originator shall convey to the Depositor the Assigned Assets and
the other property and rights related thereto described in the
related LSA Assignment to be delivered by the Originator, and, upon
the satisfaction of each of the conditions set forth in this
Section 2.01(c) and in Section 2.08 of the Sale and
Servicing Agreement on or prior to such Transfer Date, the
Depositor shall pay or cause to be paid to or at the direction of
the Originator, the aggregate Purchase Price in respect of the
Assigned Assets sold hereunder on such Transfer Date.
(i) the Originator shall have
provided to the Servicer for deposit in the related Collection
Account all collections received with respect to each Transferred
Loan constituting a part of the Assigned Assets relating to the
period after the applicable Transfer Date;
(ii) the Originator shall, at its
own expense, within one Business Day after each Transfer Date,
indicate in its computer files that the Assigned Assets identified
in the related LSA Assignment have been sold to the Depositor
pursuant to this Agreement;
(iii) the Originator shall have
taken any action requested by the Indenture Trustee, the Issuer or
the Noteholders required to maintain the ownership interest of the
Issuer in the Assigned Assets and the first perfected security
interest therein of the Indenture Trustee;
(iv) the Originator shall have used
no selection procedures that identified any of the Loans identified
in the related LSA Assignment as being less desirable or valuable
than other comparable Loans originated or acquired by the
Originator; and such Loans collectively shall be representative of
the Originator’s portfolio of Loans; and
(v) all conditions precedent to any
advance of a Borrowing to be made by the Initial Noteholder
pursuant to the Note Purchase Agreement shall have been fulfilled
as of such date.
(d) Subject to Section 6.07 ,
the parties hereto intend that each of the conveyances contemplated
hereby be sales from the Originator to the Depositor of all of the
Originator’s right, title and interest in and to the Assigned
Assets and other property described above. In the event the
transactions set forth herein are deemed not to be a sale, the
Originator hereby grants to the Depositor a security interest in
all of the Originator’s right, title and interest in, to and
under the Assigned Assets, whether now existing or hereafter
created, to secure all of the Originator’s obligations
hereunder, and this Agreement shall constitute a security agreement
under applicable law.
- 4 -
Section 2.02 Obligations of
Originator .
(a) On or prior to the Closing Date
and each Transfer Date, as applicable, the Initial Noteholder shall
have received evidence satisfactory to it of (i) the completion of
all recordings, registrations and filings as may be necessary or,
in the opinion of the Initial Noteholder, reasonably desirable to
perfect or evidence the assignment by the Originator to the
Depositor of the Originator’s ownership interest in the
applicable Assigned Assets to be assigned to the Depositor on such
date, including, without limitation, the applicable Transferred
Loans and Related Property and other collateral constituting part
of the Assigned Assets with respect to such Transferred Loans, (ii)
the completion of all recordings, registrations and filings as may
be necessary or, in the opinion of the Initial Noteholder,
reasonably desirable to perfect or evidence the assignment by the
Depositor to the Issuer of the Depositor’s ownership interest
in the Assigned Assets and (iii) the completion of all recordings,
registrations and filings as may be necessary or, in the opinion of
the Initial Noteholder, reasonably desirable to perfect or evidence
the grant of a first priority perfected security interest in the
Assigned Assets in favor of the Indenture Trustee as Collateral
pursuant to the Indenture. The Originator agrees to file all UCC-1
financing statements (and all continuation statements and
amendments thereto) necessary to perfect the interest of the
Depositor and the Issuer and the Indenture Trustee in and to the
Assigned Assets and to take such other action as may be necessary
or, in the opinion of the Depositor or the Initial Noteholder,
desirable to perfect or evidence the Depositor’s, the
Issuer’s and Indenture Trustee’s interest in the
Assigned Assets conveyed under the Basic Documents.
(b) In connection with each sale and
contribution of a Transferred Loan hereunder, the Originator shall
deliver to, and deposit with the Collateral Custodian, as the
designated agent of the Indenture Trustee, as assignee of the
Depositor and the Issuer, on or b