Exhibit 10(hh)
FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT (this “ First Amendment ” or
this “ Amendment ”) is entered into as of
April 30, 2009, by and among HERCULES FUNDING II LLC, a
Delaware limited liability company (“ Borrower
”), the lenders identified on the signature page hereof (such
lenders, together with their respective successors and assigns, are
referred to hereinafter each individually as a “
Lender ” and collectively as the “
Lenders ”), and WELLS FARGO FOOTHILL, LLC, a Delaware
limited liability company, as the arranger and administrative agent
for the Lenders (“ Agent ”), with reference to
the following facts, which shall be construed as part of this First
Amendment:
RECITALS
A. Borrower, Lenders and Agent have
entered into that certain Loan and Security Agreement dated as of
August 25, 2008 (as amended or modified from time to time, the
“ Loan Agreement ”), pursuant to which Lenders
and Agent are providing financial accommodations to or for the
benefit of Borrower upon the terms and conditions contained
therein. Unless otherwise defined herein, capitalized terms or
matters of construction defined or established in the Loan
Agreement shall be applied herein as defined or established
therein.
B. Borrower has requested that
Lenders and Agent agree to amend certain provisions of the Loan
Agreement, and Lenders and Agent are willing to do so to the extent
provided in, and subject to the terms and conditions of, this First
Amendment.
C. As of the date hereof, Wells
Fargo Foothill is the sole Lender under the Loan
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the continued performance by Borrower of its promises and
obligations under the Loan Agreement and the other Loan Documents,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, Lenders and
Agent hereby agree as follows:
I. Ratification of Existing Loan
Documents . Each of the parties acknowledges, confirms, and
ratifies the provisions of the Loan Agreement and the other Loan
Documents, which shall be unmodified and shall continue to be in
full force and effect in accordance with their terms except as
expressly provided under this First Amendment.
2. Amendments to the Loan
Agreement . The Loan Agreement is hereby amended as
follows:
2.1 Amendment to Minimum Tangible
Net Worth Covenant for HTGC . Section 7.16 of the
Loan Agreement is amended by deleting the existing text of
Section 7.16(c) and replacing it with the following
amended and restated version thereof:
(c) Minimum Tangible Net Worth of
HTGC. Permit HTGC, on a consolidated basis with its
Subsidiaries, to fail to maintain as of the end of each of its
fiscal quarters a sum of Tangible Net Worth, plus Subordinated
Debt, that satisfies the following tests, as applicable:
(i) if, as of the end of such fiscal
quarter, the sum of (A) the aggregate Commitments under this
Agreement plus (B) the aggregate amount of all other
Indebtedness of HTGC and its Subsidiaries consisting of commitments
for financing, does not exceed $250,000,000, then the sum of
Tangible Net Worth, plus Subordinated Debt must be greater
than or equal to the sum of (x) $250,000,000, plus
(y) ninety percent (90%) of the cumulative amount of
equity raised by HTGC from and after the Closing Date;
and
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(ii) if, as of the end of such
fiscal quarter, the sum of (A) the aggregate Commitments under this
Agreement plus (B) the aggregate amount of all other
Indebtedness of HTGC and its Subsidiaries consisting of commitments
for financing, exceeds $250,000,000, then the sum of Tangible Net
Worth, plus Subordinated Debt must b
