Exhibit 10.6
ADMINISTRATION AGREEMENT
among
HERCULES CAPITAL FUNDING TRUST 2022-1,
as Issuer,
HERCULES CAPITAL, INC.,
as Administrator
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Owner Trustee
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Dated as of June 22, 2022
|
|
|
29147461.3
Table of Contents
Page
1. Duties of the Administrator 1
2. Records 3
3. Compensation; Payment of Fees and Expenses 3
4. Independence of the Administrator 3
5. No Joint Venture 3
6. Other Activities of the Administrator 3
7. Representations and Warranties of the Administrator 4
8. Administrator Termination Events; Termination of the Administrator 5
9. Action upon Termination or Removal 6
10. Liens 6
11. Notices 6
12. Amendments 6
13. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial 7
14. Headings 8
15. Counterparts 8
16. Severability of Provisions 8
17. Not Applicable to Hercules in Other Capacities; Merger of Administrator 8
18. Benefits of the Administration Agreement 9
19. Assignment 9
20. Nonpetition Covenant 9
21. Limitation of Liability 9
29147461.3
THIS ADMINISTRATION AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this “Agreement”) dated as of June 22, 2022, is among HERCULES CAPITAL FUNDING TRUST 2022-1, a Delaware statutory trust (the “Issuer”), HERCULES CAPITAL, INC., a Maryland corporation, as administrator (“Hercules” or the “Administrator”), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as owner trustee (the “Owner Trustee”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned such terms in the Sale and Servicing Agreement dated as of June 22, 2022 (the “Sale and Servicing Agreement”) by and among the Issuer, Hercules, as seller and as servicer, Hercules Capital Funding 2022-1 LLC, as trust depositor (the “Trust Depositor”) and U.S. Bank Trust Company, National Association, as the trustee and paying agent, and U.S. Bank National Association, as backup servicer and custodian.
W I T N E S S E T H :
WHEREAS, Trust Depositor and the Owner Trustee have entered into the Amended and Restated Trust Agreement dated as of June 22, 2022 (the “Trust Agreement”).
WHEREAS, the Issuer has issued the Notes pursuant to the Indenture and has entered into certain agreements in connection therewith, including, (i) the Sale and Servicing Agreement and (ii) the Indenture (the Trust Agreement, the Sale and Servicing Agreement and the Indenture are referred to herein collectively as the “Issuer Documents”);
WHEREAS, to secure payment of the Notes, the Issuer has pledged the Collateral to the Trustee pursuant to the Indenture;
WHEREAS, pursuant to the Issuer Documents, the Issuer and the Owner Trustee are required to perform certain duties;
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator perform certain of the duties of the Issuer and the Owner Trustee (in its capacity as owner trustee under the Trust Agreement), and to provide such additional services consistent with this Agreement and the Issuer Documents as the Issuer may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
29147461.3
(A) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer;
(B) the appointment of successor Note Registrars (as defined in the Indenture), successor paying agents, successor Trustees, a successor Administrator or Successor Servicers, or the consent to the assignment by the Note Registrar, any paying agent or Trustee of its obligations under the Indenture; and
(C) the removal of the Trustee.
29147461.3
29147461.3
provided, however, that (A) if any delay or failure of performance referred to under clause (c)(i) above shall have been caused by force majeure or other similar occurrence, the two (2) Business Day grace period referred to in such clause (c)(i) shall be extended for an additional 60 calendar days and (b) if any delay or failure of performance referred to under clause (c)(ii) above shall have been caused by force majeure or other similar occurrence, the 60-day grace period referred to in such clause (c)(ii) shall be extended for an additional 60 calendar days.
29147461.3
29147461.3
29147461.3
29147461.3
[SIGNATURES ON NEXT PAGE]
29147461.3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.
HERCULES CAPITAL FUNDING TRUST 2022-1
By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee
By:
Name:
Title:
| S-1 | Hercules Capital Funding Trust 2022-1 Administration Agreement |
29147461.3
HERCULES CAPITAL, INC.,
as Administrator
By:
Name:
Title:
| S-2
| Hercules Capital Funding Trust 2022-1 Administration Agreement |
|
29147461.3
WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee
By:
Name:
Title:
| S-3
| Hercules Capital Funding Trust 2022-1 Administration Agreement |
|
29147461.3
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
Name:
Title:
| S-4
| Hercules Capital Funding Trust 2022-1 Administration Agreement |
|
29147461.3
Joinder of Servicer:
Hercules Capital, Inc., as Servicer, joins in this Agreement solely for purposes of Section 3.
HERCULES CAPITAL, INC.,
as Servicer
By:
Name:
Title:
| S-5
| Hercules Capital Funding Trust 2022-1 Administration Agreement |
|
29147461.3