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EXHIBIT 10.48
EXECUTION COPY
CUSTODY AGREEMENT
among
HPSC Equipment Receivables 2000-1 LLC I and HPSC Equipment Receivables 2000-1
LLC II, as Issuers
and
BNY Midwest Trust Company,
as Indenture Trustee
and
Iron Mountain Records Management, Inc.,
as Custodian
and
HPSC, Inc.
as Servicer
dated as of December 1, 2000
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CUSTODY AGREEMENT
THIS CUSTODY AGREEMENT, dated as of the date set forth on the cover
page hereof, is made and entered into among HPSC Equipment Receivables 2000-1
LLC I and HPSC Equipment Receivables 2000-1 LLC II (each an "Issuer" and
collectively, "Issuers"), BNY Midwest Trust Company, as Indenture Trustee
("Indenture Trustee") under an Indenture (the "Indenture"), dated as of December
1, 2000, among the Issuers, the Servicer, the Indenture Trustee and the
Originators (as defined therein), Iron Mountain Records Management, Inc.
("Custodian"), and HPSC, Inc. ("HPSC" or "Servicer").
DEFINITIONS
Unless otherwise indicated, capitalized terms, when used in this
Agreement, shall have the meanings set forth in the Annex to the Indenture.
AGREEMENT
RECITALS
WHEREAS, pursuant to the terms of the Transaction Documents, the Issuers are
issuing eight classes of Notes which are secured by Pledged Property;
WHEREAS, the Indenture Trustee holds a security interest in the Pledged Property
for the benefit of the Noteholders;
WHEREAS, the Indenture Trustee wishes to designate the Custodian as its agent
and bailee for purposes of maintaining possession of Contract Files containing
Pledged Property;
WHEREAS, the Custodian is willing to act as custodian and bailee;
NOW, THEREFORE, in consideration of the above Recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DELIVERY OF DOCUMENTS
Section 1.1. Documents to be delivered by Issuers to Custodian.
(a) The Issuers have delivered to Custodian the Contract Files
identified in the schedule of numbered Contract Files attached hereto as
Schedule A ("Initial Contract File Schedule"). The Custodian shall hold, as
custodian and bailee on behalf of Indenture Trustee, the Contract Files
identified in the Initial Contract File Schedule.
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(b) From time to time after the date hereof, Issuers may deliver to
Custodian additional Contract Files. Additional Contract Files shall be listed
on subsequent schedules of numbered Contract Files (each a "Subsequent Contract
File Schedule") that shall also be delivered to Custodian and Indenture Trustee.
(c) The Issuers shall designate on the Initial Contract File Schedule
and each Subsequent Contract File Schedule the name of the Issuer which owns the
Contract File.
ARTICLE II.
CAPACITY OF CUSTODIAN
Section 2.1. Custodian as Custodian and Bailee of Indenture Trustee.
Indenture Trustee hereby appoints Custodian, in its independent corporate
capacity, as the custodian and bailee of Indenture Trustee for the benefit of
the Noteholders and their successors and assigns, and Custodian hereby accepts
and agrees to act as custodian and bailee for Indenture Trustee and any
successor to or assignee of Indenture Trustee on behalf of the Purchaser in
accordance with the terms and conditions of this Agreement. With respect to each
Contract File delivered to Custodian, Custodian is solely and exclusively the
custodian and bailee for Indenture Trustee for all purposes (including, but not
limited to, holding the Contract Files for the Indenture Trustee for purposes of
perfection of the Indenture Trustee's security interest therein. Custodian shall
hold in its possession at 0 Xxx Xxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000 or at any
other facility specified in writing to Indenture Trustee, located in the
Commonwealth of Massachusetts from which it provides custodial services, all
Contract Files received by Custodian from Issuers from time to time for the sole
and exclusive use and benefit of Indenture Trustee and, except as otherwise
provided herein, shall make disposition thereof only in accordance with the
written instructions of Indenture Trustee. Custodian shall segregate and
maintain continuous custody of all documents constituting Contract Files
received by it in secure facilities, equipped with fire detection and fire
suppression features, all in accordance with customary standards for such
custody.
ARTICLE III.
CERTIFICATION BY CUSTODIAN
Section 3.1. Contract File Certification. Custodian certifies that it
has received the numbered Contract Files shown on the Initial Contract File
Schedule and will hereafter from time to time, and in any case, with respect to
each Subsequent Contract and each Substitute Contract, prior to the related
Subsequent Transfer Date and Substitute Transfer Date, as applicable, provide
similar certification upon receiving additional Contract Files pursuant to
Subsequent Contract File Schedules.
Section 3.2. No Further Obligations. Custodian shall have no obligation
to verify or review the contents of any Contract File.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES:
LIMITATION OF LIABILITY
Section 4.1. Representations and Warranties of Custodian. Custodian
represents and warrants to Indenture Trustee and Issuers that:
(a) Custodian (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and (ii) has
full corporate power and authority to conduct its business and affairs as a
Custodian; and
(b) Custodian does not control, is not controlled by nor is under
common control with Issuers or any Transferors; and
(c) This Agreement, when executed and delivered by Custodian, will
constitute the valid, legal and binding obligation of Custodian, enforceable
against Custodian in accordance with its terms, except as the enforcement
thereof may be limited by applicable receivership or similar debtor relief laws
and that certain equitable remedies may not be available regardless of whether
enforcement is sought in equity or at law.
Section 4.2. Limitation of Liability; No Assignment. The duties and
obligations of Custodian shall be determined solely by the express provisions of
this Agreement. Custodian shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement or as set
forth in a written amendment to this Agreement executed by the parties hereto or
their successors or assigns. Custodian shall not assign, transfer, pledge or
grant a security interest in any of its rights, benefits or privileges
hereunder, nor shall Custodian delegate or appoint any other person or entity to
perform or carry out any of its duties, responsibilities or obligations under
this Agreement. Any act or instrument purporting to effect any such assignment,
transfer, pledge, grant, delegation or appointment shall be void. No
representations, warranties, covenants (other than those expressly made by
Custodian in this Agreement) or obligations of Custodian shall be implied with
respect to this Agreement or Custodian's services hereunder. Without limiting
the generality of the foregoing, Custodian:
(a) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed in writing by the parties
hereto and shall use the same degree of care and skill as is reasonably expected
of financial institutions acting in comparable capacities in performance of its
duties hereunder;
(b) will be regarded as making no representations and having no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any contents
within the Contract Files, and will not be required to and will not make any
representations as to the validity, value or genuineness of such contents;
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(c) shall not be obligated to take any legal action hereunder that
might in its judgment involve any expense or liability unless it has been
furnished with reasonable indemnity by the Issuers or the Servicer;
(d) may rely on and shall be protected in acting in good faith upon the
written instructions of Indenture Trustee and such employees and representatives
of Indenture Trustee, as Indenture Trustee may hereinafter designate in writing;
(e) the Custodian may, in its reasonable judgment, consult with
Custodian's in-house counsel or any other counsel with regard to legal questions
arising out of or in connection with this Agreement, and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by the Custodian in reasonable
reliance, in good faith, and in accordance therewith.
(f) shall not be liable for any error of judgment, or for any act done
or step taken or omitted by it, in good faith, or for any mistake of fact or law
or for anything that it may do or refrain from doing in connection therewith,
except in the case of negligent performance or omission, intentional failure to
perform or intentional omission; and
(g) shall not be liable for the loss or destruction of, or damage to,
Contracts in its custody unless such loss, damage or destruction is caused by
the negligence of Custodian or its employees or agents; in the event of loss,
damage or destruction due to such negligence, Custodian's liability shall be
limited to $1.00 per Contract.
(h) may execute any of the rights or powers hereunder or perform any
duties hereunder either directly or through agents or attorneys, provided,
however, that the execution of such trusts or powers by any such agents or
attorneys shall not diminish, or relieve Custodian for, responsibility therefor
to the same degree as if Custodian itself had executed such trusts or powers.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Release of Documents. In the event that any specific
Contract File is required by the Servicer, either (a) because such Contract File
contains a Contract that has been paid in full, is a Purchased Contract or is a
Contract in respect to which a Substitute Contract has been submitted in its
place and is to be released by the Servicer, to the maker of the Contract, or
(b) to permit the Servicer to foreclose upon the collateral securing the
Contract and to continue default proceedings, or (c) for any other purpose(s)
consistent with the terms hereof, the Servicer shall send to Custodian a Request
for Release in the form of Exhibit 1 ("Request for Release"), appropriately
completed and executed by the Servicer. Custodian shall, on the same day as
received, send by facsimile or overnight courier a copy of such Request for
Release to Indenture Trustee. If such Request for Release is for either of the
purposes set forth in clauses (a) or (b) above, Custodian may release the
Contract File so requested to the Servicer, on the fourth Business Day following
receipt by Custodian of such Request for Release unless Custodian is
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notified by Indenture Trustee of Indenture Trustee's objection to such release
prior to such release by Custodian. If such Request for Release is for a purpose
referred to in clause (c) above, in the event that Indenture Trustee consents in
writing to the release of such Contract File, Indenture Trustee will return a
copy of the applicable Request for Release to Custodian with such consent
indicated thereon. Any such written consent of the Indenture Trustee, if
required hereunder, shall be obtained from Indenture Trustee within twenty (20)
Business Days of receipt of such Request for Release by the Indenture Trustee.
Notwithstanding anything to the contrary herein, Custodian shall in no event
release to the Servicer any Contract Files without the written authorization of
Indenture Trustee if the applicable Request for Release sets forth, as the basis
for such release, any purpose other than one of the purposes set forth in
clauses (a) or (b) above. The Servicer shall promptly return to the Custodian
each requested Contract File when the Servicer's need therefor in connection
with such foreclosure, purchase, substitution or servicing no longer exists,
unless the Contract has been paid in full, is a Purchased Contract or is a
Contract with respect to which a Substitute Contract has been submitted in its
place, in which case, the Servicer may retain such Contract File. Any trust
receipt executed by the Servicer for Contract Files released to Servicer
hereunder shall reflect that the Servicer holds such documents as custodian for
Custodian pursuant to this Agreement.
Notwithstanding anything to the contrary set forth herein, in no event
shall the Custodian release to the Servicer any Contract File in the event that
Contract Files relating to 10% or more of the Contracts have been previously
released to the Servicer and are still held by Servicer under outstanding
Requests for Release unless the Indenture Trustee has obtained the prior written
consent of the Majority Holders. This limitation shall not apply to the release
of Contract Files pursuant to Clause (a) of this Section 5.1. The Servicer may
hold and hereby acknowledges that it shall hold any Contract Files and all other
Pledged Property that it may from time to time receive hereunder as custodian
for the Custodian. To the extent the Servicer as agent of the Custodian,
Indenture Trustee and the Issuers, holds any Contract File or other Pledged
Property, the Servicer shall do so in accordance with the Servicing Standard as
such standard applies to servicers acting as custodial agents. The Servicer
shall promptly report to the Custodian the loss by it of all or part of any
Contract File previously provided to it by the Custodian and shall promptly take
appropriate action to remedy any such loss. In such custodial capacity, the
Servicer shall have and perform the following powers and duties.
5.1.1 hold the Contracts and Contract Files that it may from
time to time receive hereunder from the Custodian for the benefit of the Issuers
and the Noteholders, maintain accurate records pertaining to each Contract to
enable it to comply with the terms and conditions of the Indenture and this
Agreement, and maintain a current inventory thereof;
5.1.2 implement policies and procedures in accordance with
the Servicer's normal business practices with respect to the handling and
custody of such Contract Files and consistent with the Servicing Standard so
that the integrity and physical possession of such Contract Files will be
maintained; and
5.1.3 take all other actions, in accordance with the
Servicing Standard, in connection with maintaining custody of such Contract
Files on behalf of the Custodian.
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5.1.4 Acting as custodian of such Contract Files pursuant to
this Section 5.1.4, the Servicer agrees that it does not and will not have or
assert any beneficial ownership interest in the Contracts or the Contract Files.
5.1.5 The Servicer agrees to maintain any Contract Files that
it may from time to time receive from the Custodian at its office located in
Boston, Massachusetts or West Hartford, Connecticut, or at such other offices of
the Servicer as shall from time to time be identified by prior written notice to
the Indenture Trustee, the Custodian and the Noteholders.
Section 5.2. Custodian's Fees and Expenses. It is understood that
Custodian will charge such fees for its services, the payment of which, together
with Custodian's expenses in connection herewith, shall be solely the obligation
of Issuers. The fees shall include the following:
(i) reasonable compensation for its services, initially as set forth in
a letter agreement between Custodian and Issuers, it being understood that such
compensation shall be .001% of the initial Aggregate Outstanding Contract
Balance (the "Custodian Fee");
(ii) reimbursement for its reasonable expenses; and
(iii) indemnification for loss, liability or expense incurred without
gross negligence or bad faith on its part, arising out of performance of its
duties thereunder ((ii) and (iii) collectively, the "Custodian Expenses").
Section 5.2.1 Custodian shall have the right to terminate its
obligations under this Agreement in the event that Issuers fail to pay the
Custodian Fee and Custodian Expenses within 30 days of receiving notice that
such Custodian Fee and Custodian Expenses are overdue and provided further that
Custodian shall provide notice of its intention to terminate to the Indenture
Trustee, which shall have 30 days to pay amounts due to Custodian hereunder in
which case this Agreement shall continue in effect.
Section 5.3. Discharge of Custodian. Upon thirty (30) days' written
notice, Indenture Trustee, at the written direction of an Issuer, may remove and
discharge Custodian, or any successor Custodian thereafter appointed, from the
performance of its duties under this Agreement by written notice from Indenture
Trustee to Custodian or the successor Custodian, with a copy of such notice to
Issuers. Having given notice of such removal, Indenture Trustee shall promptly
appoint by written instrument a successor Custodian. One original counterpart of
such instrument shall be delivered to Indenture Trustee, one copy shall be
delivered to each Issuer, and one copy shall be delivered to the successor
Custodian. In the event of any such removal, Custodian shall promptly transfer
to the successor Custodian, as directed by Indenture Trustee, all of the
Contract Files being administered under this Agreement.
Section 5.4. Termination of Custodian's Obligations. Custodian may
terminate its obligations under this Agreement upon at least sixty (60) days'
written notice to Issuers and
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Indenture Trustee. In the event of such termination, Issuers shall appoint a
successor Custodian, subject to approval by Indenture Trustee. If Issuers are
unable to appoint a successor Custodian within a reasonable period of time,
Indenture Trustee, acting at the written direction of the Majority Noteholders,
shall appoint a successor Custodian or Indenture Trustee shall direct Custodian
to deliver the Contract Files to Indenture Trustee itself. The payment of such
successor Custodian's fees and expenses shall be the sole responsibility of
Issuers. Upon such appointment, Custodian shall promptly transfer to the
successor Custodian, as directed, all the Contract Files being administered
under this Agreement. Custodian's obligations hereunder shall not in any event
be terminated until all the Contract Files have been delivered to the successor
Custodian or to Indenture Trustee.
Section 5.5. Access to Documents. Upon reasonable prior written notice
to Custodian, Indenture Trustee and/or Issuers and their agents, accountants,
attorneys and auditors will be permitted during normal business hours to examine
the Contract Files.
Section 5.6. Insurance. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement and keep in full force and
effect (a) crime insurance, including coverage for the theft of documents and
forgery, and (b) professional liability insurance covering the risk of errors
and omissions. The crime insurance shall be in an amount not less than
$2,000,000, and the professional liability insurance shall be in an amount not
less than $5,000,000 with standard coverage and subject to deductibles, as are
customary for insurance typically maintained by custodians in similar
transactions. A certificate of the respective insurer as to each such policy
shall be furnished to Indenture Trustee, containing the insured's statement or
endorsement that such insurance shall not terminate prior to receipt by
Indenture Trustee, by registered mail, of ten (10) days' notice thereof.
Section 5.7. Contract File Schedules. Upon the request of Indenture
Trustee at any time, Custodian shall provide to Indenture Trustee the Initial
Contract File Schedule and each Subsequent Contract File Schedule.
Section 5.8. Copies of Contract Files. Upon the request of Indenture
Trustee for a particular numbered Contract File and at the cost and expense of
Indenture Trustee, Custodian shall provide Indenture Trustee with a copy of the
contents of the requested Contract File.
Section 5.9. Adverse Interests. By execution of this Agreement,
Custodian represents, warrants and covenants that it does not currently hold,
and during the existence of this Agreement shall not hold, any adverse interest,
by way of security or otherwise, in any Contract File, and hereby waives and
releases any such interest that it may have in any Contract File as of the date
hereof. Notwithstanding any other provisions of this Agreement and without
limiting the generality of the foregoing, Custodian shall not at any time
exercise or seek to enforce any claim, right or remedy, including any statutory
or common law rights of setoff, if any, that Custodian may otherwise have
against all or any part of the Contract File or proceeds thereof.
Section 5.10. Authorized Representatives. Each authorized
representative (an "Authorized Representative") of Indenture Trustee is
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this
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Agreement on behalf of Indenture Trustee, and the specimen signature for each
such Authorized Representative of Indenture Trustee initially authorized
hereunder is set forth on Exhibit 2 hereof. From time to time, Indenture Trustee
shall deliver to Custodian a revised Exhibit 2, reflecting changes in the
information previously given, but Custodian shall be entitled to rely
conclusively on the last Exhibit 2 until receipt of a superseding Exhibit 2. To
the extent expressly permitted in this Agreement, each Authorized Representative
of Issuers is authorized to give and receive notices, requests and instructions
and to deliver certificates and documents in connection with this Agreement on
behalf of Issuers and the specimen signature for each such Authorized
Representative of Issuers initially authorized hereunder is set forth on Exhibit
3 hereof. From time to time, Issuers shall deliver to Custodian a revised
Exhibit 3, reflecting changes in the information previously given, but Custodian
shall be entitled to rely conclusively on the last Exhibit 3 until receipt of a
superseding Exhibit 3.
Section 5.11. Indemnification. Custodian hereby agrees to indemnify and
hold Issuers and Indenture Trustee, the Noteholders, their shareholders,
directors, officers, employees, agents, successors and assigns, harmless from
and against and reimburse them for any and all losses, claims, demands,
obligations, damages, injuries (to persons, property or natural resources),
penalties, stamp or other similar taxes, suits, causes of action, or other legal
proceedings, judgments, costs, liabilities and/or expenses, including all
reasonable attorney's and agent's fees and expenses, incurred by Issuers or
Indenture Trustee of whatever kind or nature regardless of their merit,
demanded, asserted or claimed against the Indenture Trustee and resulting from
Custodian's negligence, willful misconduct or failure to perform its obligations
hereunder, or a breach of any representation or warranty by Custodian contained
in this Agreement. Issuers hereby agree to indemnify and hold Custodian, its
directors, officers, employees, agents, successors and assigns, harmless from
and against any and all losses, claims, demands, damages, causes of action, or
other legal proceedings, judgments, costs, liabilities and/or expenses,
including reasonable attorney's fees incurred by Custodian and resulting from
Issuers' negligence, willful misconduct or failure to perform its obligations
hereunder or other breach by Issuers of this Agreement. The foregoing
indemnifications set forth in this Section 5.11 shall survive any termination of
this Agreement or the earlier resignation or removal of the Custodian. For
purposes of this Agreement and without limitation as to what constitutes
negligence, the Custodian's inability to produce a Contract File within five (5)
Business Days after required or requested by Indenture Trustee hereunder shall
constitute negligence; provided, that (i) such Contract File is not outstanding
pursuant to a Request for Release or otherwise as permitted in this Agreement
and provided that Custodian's inability to produce such Contract File is not due
to events beyond the reasonable control of Custodian (e.g., natural disaster,
transmission failure, war or insurrection).
Section 5.12. Execution in Counterparts. For the purpose of
facilitating the execution of this Agreement and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which shall be deemed to be an original, and together shall constitute and be
one and the same instrument.
Section 5.13. Assignment by Indenture Trustee. Indenture Trustee shall
have the right, without the consent of Custodian or Issuers, to assign to any
successor trustee, in whole or
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in part, its interests under this Agreement in all of the Contract Files, and
designate any agent or representative to exercise any rights of Indenture
Trustee, hereunder, and the assignee or designee shall succeed to the rights and
obligations hereunder of Indenture Trustee with respect to such Contract Files.
All references to Indenture Trustee shall be deemed to include its assignee or
designee.
Section 5.14. Termination of this Agreement. This Agreement shall
terminate upon the earlier of the repayment in full of all amount owing to
holders of Notes and the payment of all other amounts required under the
Indenture and under the other Transaction Documents.
Section 5.15. Waivers. Neither the failure nor any delay on the part of
any party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or any other right, remedy, power or privilege, nor shall
any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party or parties purportedly granting such
waiver.
Section 5.16. Effect of Invalidity of Provisions. The provisions of
this Agreement are independent of and severable from each other, and no
provision shall be affected or rendered invalid or unenforceable by virtue of
the fact that for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
Section 5.17. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the matters and
transactions contemplated by this Agreement and supersedes any prior agreement
and understandings with respect to those matters and transactions.
Section 5.18. Binding Effect: Governing Law. This Agreement shall be
binding and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that neither Issuers nor Custodian
may assign this Agreement or any of its rights or obligations hereunder without
the prior written consent of Indenture Trustee. This Agreement shall be
construed in accordance with, and governed by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of law principles thereof
Section 5.19. Notices. All notices, requests or demands required or
permitted to be given hereunder shall be in writing, and shall be deemed
effective (a) upon hand delivery, if hand delivered; (b) one (1) business day
after such are deposited for delivery via Federal Express or other nationally
recognized overnight courier service; or (c) three (3) business days after such
are deposited in the United States mails, certified or registered mail all with
delivery charges and/or postage prepaid, and addressed as shown below, or to
such other address as either party may, from time to time, designate in writing.
Written notice may be given by facsimile to the facsimile number shown below, or
to such other facsimile number as either party may designate, from time to time,
in writing, provided that such notice shall not be deemed effective unless it is
confirmed within 24 hours by hand delivery, courier delivery or mailing of a
copy of such notice
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in accordance with the requirements set forth above. Notwithstanding the
foregoing, notices and requests in the normal course of business under this
Agreement shall be addressed as the parties shall notify each other from time to
time.
If to Issuers:
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HPSC Equipment Receivables 2000-1 LLC I
00 Xxxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (800) 225-2488 ext. 4003
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
HPSC Equipment Receivables 2000-1 LLC II
00 Xxxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (800) 225-2488 ext. 4004
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
If to Indenture Trustee:
BNY Midwest Trust Company
0 Xxxxx XxXxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Structured Finance Services
If to Custodian:
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Iron Mountain Records Management, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Vice President and General Counsel
If to Servicer:
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HPSC, Inc.
00 Xxxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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Attention: Xxxx Xxxxxxxx
Section 5.20. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 5.21. SUBMISSION TO JURISDICTION: WAIVER OF TRIAL BY JURY. WITH
RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT (A) EACH PARTY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS AND (B) EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING HERETO BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN ANY INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVES THE RIGHT
TO OBJECT, WITH RESPECT TO SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, INDENTURE TRUSTEE, PURCHASER, ISSUERS AND
CUSTODIAN EACH IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY MATTER ARISING HEREUNDER.
Section 5.22. Representation by Counsel. Custodian and Issuers hereby
acknowledge to Indenture Trustee that Custodian and Issuers have been (or have
been finished sufficient opportunity to have been) represented by counsel during
the course of the negotiation of this Custody Agreement and the other
Transaction Documents.
Section 5.23. Construction. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise required:
(d) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(e) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(f) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subsections of
this Agreement;
(g) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
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(h) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreements as a whole and not to any particular
provision; and
(i) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 5.24. Rights of the Indenture Trustee. .The Indenture Trustee
shall be afforded the same rights, protections, immunities and indemnities set
forth in the Indenture as if specifically set forth herein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HPSC Equipment Receivables 2000-1 LLC I
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
HPSC Equipment Receivables 2000-1 LLC II
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Iron Mountain Records Management, Inc.
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
BNY Midwest Trust Company, not in its
individual capacity, but solely as Indenture Trustee
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
As to Section 5.1 Acknowledged and
Agreed to as of the date first written
above:
HPSC, Inc., as Servicer
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
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EXHIBIT 1
REQUEST FOR RELEASE OF DOCUMENTS
To: Iron Mountain Records Management, Inc.
Re: Custody Agreement, dated as of December 1, 2000, among HPSC
Equipment Receivables 2000-1 LLC I and HPSC Equipment
Receivables 2000-1 LLC II ("Issuers"), BNY Midwest Trust
Company ("Indenture Trustee"), Iron Mountain Records
Management, Inc. ("Custodian"), and HPSC, Inc. ("Servicer").
In connection with the administration of the Contract Files
held by you as Custodian for Indenture Trustee pursuant to the above-captioned
Custody Agreement, we request the release of the Contract File described below,
for the reason indicated.
Contract File Number:
Reason for Requesting File: The undersigned hereby represents and warrants to
Custodian and to Indenture Trustee that the Servicer is hereby requesting the
release of the above-described Contract File for the following reason (check
one):
_____ 1. Contract within Contract File Paid in Full or is a Purchased Contract
or is a Contract in respect to which a Substitute Contract has been submitted in
its place.
_____ 2. Contract within Contract File in Default Proceedings
_____ 3. Other (explain) __________________
In connection with the release as requested hereby, the undersigned
hereby certify to the Custodian and to the Purchaser that no Event of Default
exists, or would exist after giving effect to the release requested hereby,
under that certain Indenture of even date herewith (as amended, supplemented or
otherwise modified) among the Issuers, the Servicer, the Originators and the
Indenture Trustee.
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HPSC, Inc., as Servicer
By:__________________________
Name:
Title:
Date:
Release of documents consented to [Indenture Trustee's consent not required with
respect to releases based upon reasons 1 or 2 above]:
Iron Mountain Records Management, Inc.
By:_________________________________
Name:
Title:
Date:
Consent of Indenture Trustee required with respect to 3:
BNY Midwest Trust Company, as Indenture Trustee
By:_______________________________________
Name:
Title:
Date:
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EXHIBIT 2
AUTHORIZED OFFICERS OF INDENTURE TRUSTEE
Name Specimen Signature
____________________________________ _____________________________________
____________________________________ _____________________________________
____________________________________ _____________________________________
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EXHIBIT 3
AUTHORIZED OFFICERS OF ISSUERS
Name Specimen Signature
____________________________________ _____________________________________
____________________________________ _____________________________________
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TABLE OF CONTENTS
Page
----
ARTICLE I. - DELIVERY OF DOCUMENTS.......................................... 1
Section 1.1. Documents to be delivered by Issuers to Custodian.......... 1
ARTICLE II. - CAPACITY OF CUSTODIAN......................................... 2
Section 2.1. Custodian as Custodian and Bailee of Indenture Trustee..... 2
ARTICLE III. - CERTIFICATION BY CUSTODIAN................................... 2
Section 3.1. Contract File Certification................................ 2
Section 3.2. No Further Obligations..................................... 2
ARTICLE IV. - REPRESENTATIONS AND WARRANTIES LIMITATION OF LIABILITY........ 3
Section 4.1. Representations and Warranties of Custodian................ 3
Section 4.2. Limitation of Liability; No Assignment..................... 3
ARTICLE V. - MISCELLANEOUS.................................................. 4
Section 5.1. Release of Documents....................................... 4
Section 5.2. Custodian's Fees and Expenses.............................. 6
Section 5.3. Discharge of Custodian..................................... 6
Section 5.4. Termination of Custodian's Obligations..................... 7
Section 5.5. Access to Documents........................................ 7
Section 5.6. Insurance ................................................. 7
Section 5.7. Contract File Schedules.................................... 7
Section 5.8. Copies of Contract Files................................... 7
Section 5.9. Adverse Interests.......................................... 7
Section 5.10. Authorized Representatives................................. 8
Section 5.11. Indemnification............................................ 8
Section 5.12. Execution in Counterparts.................................. 9
Section 5.13. Assignment by Indenture Trustee............................ 9
Section 5.14. Termination of this Agreement.............................. 9
Section 5.15. Waivers ................................................... 9
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Section 5.16. Effect of Invalidity of Provisions......................... 9
Section 5.17. Entire Agreement........................................... 9
Section 5.18. Binding Effect: Governing Law.............................. 9
Section 5.19. Notices ................................................... 10
Section 5.20. Exhibits .................................................. 11
Section 5.21. SUBMISSION TO JURISDICTION: WAIVER OF TRIAL BY JURY....... 11
Section 5.22. Representation by Counsel.................................. 11
Section 5.23. Construction............................................... 12
Section 5.24. Rights of the Indenture Trustee............................ 12
Exhibit 1: Request for Release of Documents
Exhibit 2: Authorized Officers of Indenture Trustee
Exhibit 3: Authorized Officers of Issuers
ii
