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Exhibit 10.6
CUSTODY AGREEMENT
among
HPSC Gloucester Funding 2003-1 LLC I and HPSC Gloucester Funding 2003-1 LLC II,
as Issuers
and
BNY Midwest Trust Company,
as Indenture Trustee
and
Iron Mountain Information Management, Inc.,
as Custodian
and
HPSC, Inc.
as Servicer
dated as of March 31, 2003
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TABLE OF CONTENTS
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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 Agent of Indenture Trustee..................................2
ARTICLE III. CERTIFICATION BY CUSTODIAN...................................................................2
Section 3.1. Contract File Certification............................................................2
Section 3.2. No Further Obligations.................................................................3
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.......................................................................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. No Liens or Encumbrances of Contracts..................................................7
Section 5.10. Adverse Interests......................................................................8
Section 5.11. Authorized Representatives.............................................................8
Section 5.12. Indemnification........................................................................8
Section 5.13. Execution in Counterparts..............................................................9
Section 5.14. Assignment by Indenture Trustee........................................................9
Section 5.15. Termination of this Agreement..........................................................9
Section 5.16. Waivers................................................................................9
Section 5.17. Effect of Invalidity of Provisions.....................................................9
</Table>
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TABLE OF CONTENTS
(CONTINUED)
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PAGE
Section 5.18. Entire Agreement......................................................................10
Section 5.19. Binding Effect: Governing Law.........................................................10
Section 5.20. Notices...............................................................................10
Section 5.21. Exhibits..............................................................................11
Section 5.22. SUBMISSION TO JURISDICTION: WAIVER OF TRIAL BY JURY..................................11
Section 5.23. Representation by Counsel.............................................................12
Section 5.24. Construction..........................................................................12
Section 5.25. Rights of the Indenture Trustee.......................................................12
</Table>
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Exhibit 1: Monthly Supplemental Report
Exhibit 2: Request for Release of Documents
Exhibit 3: Authorized Officers of Indenture Trustee
Exhibit 4: Authorized Officers of Issuers
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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 Gloucester Funding 2003-1 LLC I and
HPSC Gloucester Funding 2003-1 LLC II (each an "ISSUER" and collectively, the
"ISSUERS"), BNY Midwest Trust Company, as Indenture Trustee (the "INDENTURE
TRUSTEE") under an Indenture, dated as of March 31, 2003, among the Issuers,
HPSC, Inc. as Servicer (the "SERVICER") and the Indenture Trustee (the
"INDENTURE"), and Iron Mountain Information Management, Inc. (the "CUSTODIAN")
and the Servicer.
DEFINITIONS
Unless otherwise indicated, capitalized terms, when used in this Agreement,
shall have the meanings set forth in Annex A to the Indenture.
AGREEMENT
RECITALS
WHEREAS, pursuant to the terms of the Transaction Documents, the Issuers
are issuing seven 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 for purposes of maintaining possession of the Contract Files containing
the Pledged Property;
WHEREAS, the Custodian is willing to act as custodian and agent;
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 the 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 agent 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, the 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 the Custodian and the
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 AGENT OF INDENTURE TRUSTEE.
The Indenture Trustee hereby appoints the Custodian, in its independent
corporate capacity, as the custodian and agent of the Indenture Trustee, and the
Custodian hereby accepts and agrees to act as custodian and agent for the
Indenture Trustee and any successor to or assignee of the Indenture Trustee in
accordance with the terms and conditions of this Agreement. With respect to each
Contract File delivered to the Custodian, the Custodian is solely and
exclusively the custodian and agent for the 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. The Custodian shall hold in its possession at 1 Old Forge Hill Road,
Franklin, MA 02038 or at any other facility specified in writing to the
Indenture Trustee, located in the Commonwealth of Massachusetts from which it
provides custodial services, all Contract Files received by the Custodian from
the Issuers from time to time for the sole and exclusive use and benefit of the
Indenture Trustee and, except as otherwise provided herein, shall make
disposition thereof only in accordance with the written instructions of the
Indenture Trustee. The 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.
(a) The 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. On the date hereof, the Custodian shall deliver a receipt (a "CUSTODY
RECEIPT") for the Contract Files related to the Initial Contracts to the
Indenture Trustee. With respect to each Subsequent Transfer Date and Substitute
Transfer, the Custodian shall deliver a Custody Receipt to the Indenture Trustee
with respect to the Subsequent Contracts and Substitute Contracts, as
applicable.
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(b) On the twenty-fifth day of each calendar month (the Business
Day immediately following the twenty-fifth day of each calendar month if such
twenty-fifth day is not a Business Day), the Custodian shall send to the
Indenture Trustee a list of all Contracts that have been received by the
Custodian during the period from the date of the latest list to the date of such
list (by facsimile or otherwise) in substantially the form of EXHIBIT 1 attached
hereto ("MONTHLY SUPPLEMENTAL REPORT").
Section 3.2. NO FURTHER OBLIGATIONS. The Custodian shall have no
obligation to verify or review the contents of any Contract File.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES:
LIMITATION OF LIABILITY
Section 4.1. REPRESENTATIONS AND WARRANTIES OF CUSTODIAN. The
Custodian represents and warrants to the Indenture Trustee and the Issuers that:
(a) the 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) the Custodian does not control, is not controlled by nor is
under common control with the Issuers or any Transferors; and
(c) this Agreement, when executed and delivered by the Custodian,
will constitute the valid, legal and binding obligation of the Custodian,
enforceable against the 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; and
(d) the Custodian maintains all documents constituting Contract
Files received by it in secure facilities, equipped with fire detection and fire
suppression features, in accordance with customary standards of the records
management industry.
Section 4.2. LIMITATION OF LIABILITY; NO ASSIGNMENT. The duties and
obligations of the Custodian shall be determined solely by the express
provisions of this Agreement. The 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. The Custodian shall not
assign, transfer, pledge or grant a security interest in any of its rights,
benefits or privileges hereunder, nor shall the 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 the Custodian in this Agreement) or obligations of the
Custodian shall be implied with respect to this Agreement or the Custodian's
services hereunder. Without limiting the generality of the foregoing, the
Custodian:
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(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 professional record storage providers;
(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;
(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 when acting in good faith
upon the written instructions of the Indenture Trustee and such employees and
representatives of the Indenture Trustee, as the Indenture Trustee may
hereinafter designate in writing;
(e) the Custodian may, in its reasonable judgment, consult with
the 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 the Custodian or its employees or agents; in the event of
loss, damage or destruction due to such negligence, the 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 the Custodian for, responsibility
therefor to the same degree as if the 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
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(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 the Custodian a
Request for Release in the form of EXHIBIT 2 ("REQUEST FOR RELEASE"),
appropriately completed and executed by the Servicer. If the Request for Release
is received by 3:00pm eastern time the Custodian shall, on the same day as
received, send by facsimile or overnight courier a copy of such Request for
Release to the Indenture Trustee. If such Request for Release is received after
3:00pm eastern time, the Custodian shall send by facsimile or overnight courier
of such Request for Release to the Indenture Trustee by the close of business on
the next business day. If such Request for Release is for either of the purposes
set forth in clauses (a) or (b) above, the Custodian may release the Contract
File so requested to the Servicer, on the fourth Business Day following receipt
by the Custodian of such Request for Release unless the Custodian is notified by
the Indenture Trustee of the Indenture Trustee's objection to such release prior
to such release by the Custodian. If such Request for Release is for a purpose
referred to in clause (c) above, in the event that the Indenture Trustee
consents in writing to the release of such Contract File, the Indenture Trustee
will return a copy of the applicable Request for Release to the Custodian with
such consent indicated thereon. Any such written consent of the Indenture
Trustee, if required hereunder, shall be obtained from the Indenture Trustee
within twenty (20) Business Days of receipt of such Request for Release by the
Indenture Trustee. Notwithstanding anything to the contrary herein, the
Custodian shall in no event release to the Servicer any Contract Files without
the written authorization of the 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 the Servicer hereunder shall reflect that the Servicer holds such
documents as custodian for the 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 the 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. Upon request of
the Indenture Trustee or the Custodian, the Servicer shall within two (2)
Business Days return any Contract File to the Custodian. 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:
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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.
5.1.4 Acting as custodian of such Contract Files pursuant to this
Agreement, 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 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. The Servicer agrees to pay the
Custodian, and shall be solely liable for, the fees described on SCHEDULE B
attached hereto (collectively, the "CUSTODIAN FEES"). No party hereto shall have
any obligation to pay any other fees to, or to reimburse any costs or expenses
of, the Custodian with respect to the Custodian's obligations and duties created
herein other than the Custodian Fees. The Custodian shall have the right to
terminate its obligations under this Agreement if the Servicer fails to pay the
Custodian Fees within thirty (30) days after receiving notice that the Custodian
Fees are overdue, provided that the Custodian shall give notice of its intention
to terminate this Agreement. Upon receipt of such notice to the Indenture
Trustee, the Indenture Trustee shall have the right, but not the obligation, to
pay within thirty (30) days the Custodian Fees due to Custodian hereunder. If
Custodian Fees due to the Custodian are paid in full, this Agreement shall
continue in full force and effect.
Section 5.3. DISCHARGE OF CUSTODIAN. Upon thirty (30) days' written
notice, the Indenture Trustee, at the written direction of an Issuer, may remove
and discharge the Custodian, or any successor Custodian thereafter appointed,
from the performance of its duties under this Agreement by written notice from
the Indenture Trustee to the Custodian or the successor Custodian, with a copy
of such notice to the Issuers. Having given notice of such removal, the
Indenture Trustee shall promptly appoint by written instrument a successor the
Custodian. One original counterpart of such instrument shall be delivered to the
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,
the Custodian shall promptly transfer to the successor Custodian, as directed by
the Indenture Trustee, all of the Contract Files being administered under this
Agreement.
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Section 5.4. TERMINATION OF CUSTODIAN'S OBLIGATIONS. The Custodian may
terminate its obligations under this Agreement upon at least sixty (60) days'
written notice to the Issuers and the Indenture Trustee. In the event of such
termination, the Issuers shall appoint a successor Custodian, subject to
approval by the Indenture Trustee. If the Issuers are unable to appoint a
successor Custodian within a reasonable period of time, the Indenture Trustee,
acting at the written direction of the Majority Holders, shall appoint a
successor Custodian or the Indenture Trustee shall direct the Custodian to
deliver the Contract Files to the Indenture Trustee itself. The payment of such
successor Custodian's fees and expenses shall be the sole responsibility of the
Servicer. Upon such appointment, the Custodian shall promptly transfer to the
successor Custodian, as directed, all the Contract Files being administered
under this Agreement. The 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 the Indenture Trustee.
Section 5.5. ACCESS TO DOCUMENTS. Upon reasonable prior written notice
to the Custodian, by an Authorized Representative (as hereinafter defined), the
Indenture Trustee and/or the Issuers and their agents, accountants, attorneys
and the auditors will be permitted during normal business hours to examine the
Contract Files. Access to the Contract Files under this Section will be subject
to retrieval and refile charges as set forth in Schedule B, as well as any other
costs associated with services requested by the entity inspecting the Contract
Files (i.e. copying, faxing).
Section 5.6. INSURANCE. The 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 the record
management industry. A certificate of the respective insurer as to each such
policy shall be furnished to the Indenture Trustee, containing the insured's
statement or endorsement that such insurance shall not terminate prior to
receipt by the Indenture Trustee, by registered mail, of ten (10) days' notice
thereof.
Section 5.7. CONTRACT FILE SCHEDULES. Upon the request of the
Indenture Trustee at any time, the Custodian shall provide to the Indenture
Trustee the Initial Contract File Schedule and each Subsequent Contract File
Schedule.
Section 5.8. COPIES OF CONTRACT FILES. Upon the request of the
Indenture Trustee for a particular numbered Contract File and at the cost and
expense of the Indenture Trustee, the Custodian shall provide the Indenture
Trustee with a copy of the contents of the requested Contract File.
Section 5.9. NO LIENS OR ENCUMBRANCES OF CONTRACTS. In order to
provide security to the Custodian for any overdue Custodian Fees which may be
owed to the Custodian by the Servicer, the Servicer will post a $1000.00
security deposit with the Custodian ("Security Deposit"). The Custodian hereby
agrees not to assert any statutory or possessory liens or encumbrances of any
kind with respect to the Contracts held by it, and hereby waives all such liens
and encumbrances; except that if the Servicer is in arrears of payment of the
Custodian Fees
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to the Custodian by forty-five (45) days, the Custodian shall notify the
Indenture Trustee of such delinquency and of the Indenture Trustee's right to
cure the delinquency and may use the Security Deposit to cure the delinquency.
If the delinquency is not fully cured within sixty (60) days of the missed or
partial payment, the Custodian shall have the right to assert statutory or
possessory liens or encumbrances of any kind with respect to the Contracts held
by it. Specifically, Custodian may refuse withdrawal of original Contract Files
from the Premises until such outstanding invoices are fully paid.
Section 5.10. ADVERSE INTERESTS. By execution of this Agreement, the
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, the 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 the Custodian may otherwise have
against all or any part of the Contract File or proceeds thereof.
Section 5.11. AUTHORIZED REPRESENTATIVES. Each authorized
representative (an "AUTHORIZED REPRESENTATIVE") of the Indenture Trustee is
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Agreement on behalf of the
Indenture Trustee, and the specimen signature for each such Authorized
Representative of the Indenture Trustee initially authorized hereunder is set
forth on EXHIBIT 3 hereof. From time to time, the Indenture Trustee shall
deliver to the Custodian a revised EXHIBIT 3, reflecting changes in the
information previously given, but the Custodian shall be entitled to rely
conclusively on the last EXHIBIT 3 until receipt of a superseding EXHIBIT 3. To
the extent expressly permitted in this Agreement, each Authorized Representative
of the 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 the Issuers and the specimen signature for each such
Authorized Representative of the Issuers initially authorized hereunder is set
forth on EXHIBIT 3 hereof. From time to time, the Issuers shall deliver to the
Custodian a revised EXHIBIT 3, reflecting changes in the information previously
given, but the Custodian shall be entitled to rely conclusively on the last
EXHIBIT 3 until receipt of a superseding EXHIBIT 4.
Section 5.12. INDEMNIFICATION. The Custodian hereby agrees to indemnify
and hold the Issuers and the 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
the Issuers or the Indenture Trustee of whatever kind or nature regardless of
their merit, demanded, asserted or claimed against the Indenture Trustee and
resulting solely from the Custodian's negligence, willful misconduct or failure
to perform its obligations hereunder, or a breach of any representation or
warranty by the Custodian contained in this Agreement. The Issuers hereby agree
to indemnify and hold the 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,
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liabilities and/or expenses, including reasonable attorney's fees incurred by
the Custodian and resulting from the Issuers' negligence, willful misconduct or
failure to perform their obligations hereunder or other breach by the 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 the
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 the 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 5.13. 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 5.14. ASSIGNMENT BY INDENTURE TRUSTEE. The Indenture Trustee
shall have the right, without the consent of the Custodian or the Issuers, to
assign to any successor indenture trustee, in whole or in part, its interests
under this Agreement in all of the Contract Files, and designate any agent or
representative to exercise any rights of the Indenture Trustee, hereunder, and
the assignee or designee shall succeed to the rights and obligations hereunder
of the Indenture Trustee with respect to such Contract Files. All references to
the Indenture Trustee shall be deemed to include its assignee or designee.
Notwithstanding anything to the contrary contained in Section 4.2, Custodian
shall have the right, at any time during the term of this Agreement, to assign
its rights and responsibilities under this Agreement to any entity controlled
by, under common control with, or controlling Custodian. Custodian shall also
have the right to assign its rights and obligations under this Agreement to any
entity which is a successor by merger to Custodian.
Section 5.15. TERMINATION OF THIS AGREEMENT. This Agreement shall
terminate upon the earlier of the repayment in full of all amount owing to
holders of the Notes and the payment of all other amounts required under the
Indenture and under the other Transaction Documents.
Section 5.16. 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 5.17. 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.
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<Page>
Section 5.18. 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 5.19. 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 the Issuers nor the
Custodian may assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the 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 5.20. 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 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 THE ISSUERS:
HPSC Gloucester Funding 2003-1 LLC I
60 State St., Suite 3520
Boston, MA 02109-1803
Telephone: (617) 973-4005
Fax: (617) 723-4786
Attention: Stephen Ballou
HPSC Gloucester Funding 2003-1 LLC II
60 State St., Suite 3520
Boston, MA 02109-1803
Telephone: (617) 973-4006
Fax: (617) 723-4786
Attention: Stephen Ballou
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<Page>
IF TO THE INDENTURE TRUSTEE:
BNY Midwest Trust Company
2 North LaSalle St., Suite 1020
Chicago, IL 60602
Telephone: (312) 827-8569
Fax: (312) 827-8562
Attention: Structured Finance
IF TO THE CUSTODIAN:
Iron Mountain Information Management, Inc.
745 Atlantic Avenue
Boston, MA 02111
Telephone: (617) 535-4766
Fax: (617) 350-7881
Attention:
----------------------
IF TO THE SERVICER:
HPSC, Inc.
60 State St., Suite 3520
Boston, MA 02109-1803
Telephone: (617) 720-7251
Fax: (617) 723-4786
Attention: Rene Lefebvre
Section 5.21. EXHIBITS. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 5.22. 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 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, THE INDENTURE TRUSTEE, THE SERVICER, THE ISSUERS
AND THE CUSTODIAN EACH IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM
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<Page>
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING
HEREUNDER.
Section 5.23. REPRESENTATION BY COUNSEL. The Custodian and the Issuers
hereby acknowledge to the Indenture Trustee that the Custodian and the Issuers
have been (or have been finished sufficient opportunity to have been)
represented by counsel during the course of the negotiation of this Agreement
and the other Transaction Documents.
Section 5.24. CONSTRUCTION. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise required:
(a) 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;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) 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;
(d) 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;
(e) 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
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.25. 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 Gloucester Funding 2003-1 LLC I
By: /s/ Rene Lefebvre
-----------------------------------
Name: Rene Lefebvre
----------------------------
Title: Manager
----------------------------
HPSC Gloucester Funding 2003-1 LLC II
By: /s/ Rene Lefebvre
-----------------------------------
Name: Rene Lefebvre
----------------------------
Title: Manager
----------------------------
Iron Mountain Information Management, Inc.
By: /s/ Garry B. Watzke
-----------------------------------
Name: Garry B. Watzke
----------------------------
Title: Vice President
----------------------------
BNY Midwest Trust Company, not in its
individual capacity, but solely as Indenture
Trustee
By: /s/ M. Onischak
-----------------------------------
Name: Marian Onischak
----------------------------
Title: Assistant Vice President
----------------------------
As to Section 5.1 Acknowledged and Agreed to
as of the date first written above:
HPSC, Inc., as Servicer
By: /s/ Rene Lefebvre
-----------------------------------
Name: Rene Lefebvre
----------------------------
Title: Manager
----------------------------
[Custody Agreement]
<Page>
EXHIBIT 1
__________ __, 200__
BNY Midwest Trust Company
2 North LaSalle St., Suite 1020
Chicago, IL 60602
Attention: Structured Finance
RE: HPSC GLOUCESTER FUNDING 2003-1 LLC I AND HPSC GLOUCESTER FUNDING
2003-1 LLC II - CONTRACTS RECEIVED
Gentlemen:
We are sending this letter to you pursuant to Section 3.1 of that certain
Custody Agreement, dated as of March 31, 2003 among HPSC Gloucester Funding
2003-1 LLC I and HPSC Gloucester Funding 2003-1 LLC II, each as Issuer, BNY
Midwest Trust Company, as Indenture Trustee, Iron Mountain Information
Management, Inc., as Custodian and HPSC, Inc., as Servicer.
Please see attached for the listing of all Contracts that have been
received during the period from _______________ (the date of our previous
Monthly Supplemental Report) to the twenty-fifth day of this month.
IRON MOUNTAIN INFORMATION
MANAGEMENT, INC.
By:
--------------------------
Name:
Title:
<Page>
MONTHLY SUPPLEMENTAL REPORT
LIST OF CONTRACTS
[DATE]
(File number) (Name)
<Table>
<Caption>
COUNT FILE DESCRIPTION 1 FILE DESCRIPTION 2 FILE DESCRIPTION 3 FILE RECEIPT DATE
- ----- ------------------ ------------------ ------------------- -----------------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
</Table>
<Page>
EXHIBIT 2
REQUEST FOR RELEASE OF DOCUMENTS
To: Iron Mountain Information Management, Inc.
Re: Custody Agreement, dated as of March 31, 2003, among HPSC Gloucester
Funding 2003-1 LLC I and HPSC Gloucester Funding 2003-1 LLC II (the
"ISSUERS"), BNY Midwest Trust Company (the "INDENTURE TRUSTEE"),
Iron Mountain Information Management, Inc. (the "CUSTODIAN"), and
HPSC, Inc. (the "SERVICER").
In connection with the administration of the Contract Files held by you as
the Custodian for the 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
the Custodian and to the 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
certifies to the Custodian and to the Indenture Trustee 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 Originator and the
Indenture Trustee.
HPSC, Inc., as Servicer
By:
--------------------------------
Name:
Title:
Date:
<Page>
Release of documents consented to:
Iron Mountain Information Management, Inc.
By:
-----------------------------------------
Name:
Title:
Date:
Consent of Indenture Trustee required with
respect to 3 [Indenture Trustee's consent not
required with respect to releases based upon
reasons 1 or 2 above]:
BNY Midwest Trust Company, as Indenture Trustee
By:
-----------------------------------------
Name:
Title:
Date:
<Page>
EXHIBIT 3
AUTHORIZED OFFICERS OF INDENTURE TRUSTEE
Name Specimen Signature
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<Page>
EXHIBIT 4
AUTHORIZED OFFICERS OF ISSUERS
Name Specimen Signature
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