Exhibit 10.7


 


EXECUTION COPY


 


SERVICES AGREEMENT


 


THIS SERVICES AGREEMENT is made as of October 6,
2003 (this “Agreement”) by and between GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation (“Purchaser”), and HPSC, INC., a
Delaware corporation (“Initial Servicer”).


 


WHEREAS, Purchaser is acquiring a portfolio of payment
and contract rights with respect to lease, loan and finance agreements with
commercial customers of Initial Servicer, pursuant to the Purchase Agreement of
even date herewith between Purchaser and Initial Servicer (the “Purchase
Agreement”).


 


WHEREAS, Purchaser and Initial Servicer desire to
enter into this Agreement pursuant to which Initial Servicer will provide
certain services to Purchaser.


 


NOW, THEREFORE, in consideration of the recitals and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed that:


 


1.                                       Definitions.  Capitalized terms used herein, including in Exhibit
A hereto, have the meanings assigned to them in the preamble to this
Agreement, in the Purchase Agreement or as set forth below.


 


(a)                                  “Account
Party Insurer” means any insurance company from time to time issuing one or
more insurance policies to or for the benefit of any Account Party.


 


(b)                                 “Collection
Account” means Account Number 50-272-485 at Deutsche Bank, New York, New
York, which account is maintained and owned by Purchaser and as to which
Deutsche Bank will comply solely with instructions originated by Purchaser with
respect to the disposition of funds in the account.


 


(c)                                  “Customary
Standard” has the meaning specified in Section 7.


 


(d)                                 “Law”
shall mean any law, rule, regulation or governmental requirement of any kind of
any Governmental Entity, and the rules, regulations, interpretations and orders
promulgated thereunder.


 


(e)                                  “Liquidation
Proceeds” means, with respect to a Non-Performing Account, proceeds from
the sale or re-marketing of the Equipment relating to such Non-Performing
Account, proceeds of any related insurance policy of any Account Party Insurer
and any other recoveries with respect to such Non-Performing Account and the
related Equipment, including, without limitation, any amounts collected as
judgments against an Account Party or others related to the failure of such Account
Party to pay any amount in respect of any Account Document or to return the
Equipment, net of (i) any out-of-pocket fees and expenses reasonably incurred
by Initial Servicer in enforcing or attempting to enforce, as agent for
Purchaser, any relevant Account Document (including in the context


 

















 


of a Account Party bankruptcy) or in repossessing,
repairing, refurbishing, preparing for sale or lease, liquidating or
re-marketing such Equipment, (ii) amounts so received that are required to be
refunded to the Account Party on such Account, and (iii) any Retained Payment
Rights.


 


(f)                                    “Lockbox
Account” shall mean, as of the date hereof, the lockbox account maintained
by Initial Servicer with FleetBank, N.A.


 


(g)                                 “Lockbox
Account Documents” shall mean the HPSC Securitization Escrow Agreement,
dated as of December 10, 1998, and the Instrument of Adherence to the HPSC
Securitization Escrow Agreement, dated October 6, 2003, executed by
Purchaser.


 


(h)                                 “Initial
Servicer Event of Default” means any one of the following events (whatever
the reason for such Initial Servicer Event of Default and without regard to
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any Governmental Entity):


 


(i)                                     failure
on the part of Initial Servicer to remit to the Lockbox Account or the
Collection Account any monies received by Initial Servicer and required to be
remitted to the Lockbox Account or the Collection Account which failure
continues unremedied for a period of 5 days from the date of receipt of such
monies by Initial Servicer;


 


(ii)                                  except
as provided in clause (i) above, a default on the part of Initial Servicer in
its observance or performance in any material respect of the covenants or
agreements in the Operative Documents which failure continues unremedied for a
period of 30 days after notice is given to Initial Servicer by Purchaser;


 


(iii)                               if any representation or
warranty of Initial Servicer made in the Operative Documents shall prove to be
incorrect in any material respect as of the time made; or


 


(iv)                              an
Event of Bankruptcy in respect of Initial Servicer.


 


(v)                                 Initial
Servicer shall default beyond any period of grace provided therefor with
respect to any principal of or interest on any indebtedness for borrowed money
or in its obligations under a receivables financing with a principal amount in
excess of $1,000,000, or any other breach or default (or other event or
condition) shall occur under any agreement, indenture or instrument relating to
any such indebtedness for borrowed money or receivables financing, if the
effect of such breach or default (or such other event or condition) is to
cause, or to permit the holder or holders of the indebtedness for borrowed
money or receivables financing (or a Person on behalf of such holder or
holders) to cause (upon the giving of notice, the lapse of time or both, or
otherwise), such indebtedness for borrowed money or receivables financing to
become or be declared due and payable or to require either a repurchase of
receivables or a replacement of Initial Servicer as servicing agent for such
receivables.


 


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(i)                                     “Initial
Servicer Insurance Policy” means any insurance policy issued or provided by
any third-party insurer or any self-insurance arrangement in respect of Initial
Servicer, relating to property, assets, activities or businesses of Initial
Servicer.


 


(j)                                     “Non-Performing
Account” means an Account (a) that has become more than ninety (90) days
delinquent, (b) that has been accelerated by Initial Servicer in accordance
with the applicable Account Documents and the customary and historic practices
of Initial Servicer, (c) that Initial Servicer or Purchaser has determined to
be uncollectible in accordance with its customary and historic practices, (d)
with an Account Party in respect of which an Event of Bankruptcy has occurred
and is continuing, or (e) a Default (as defined in the applicable Account
Document) occurs for any other reason and such Default continues for ninety
(90) days.


 


(k)                                  “Payment
Date” means, as to any Payment, the third Business Day of the month which
next succeeds the month in which such Payment is scheduled to be received by
Initial Servicer.


 


(l)                                     “Residual
Interest” means, as the context may require, the actual or anticipated
residual interest of the Initial Servicer in respect of any Equipment.


 


(m)                               The
following capitalized terms are defined in the sections of this Agreement
identified below:


 


	
  “Accessible Systems”

  	
   

  	
  Exhibit A,
  Section 7(c)

  
	
  “Management Services”

  	
   

  	
  Section 2(a)

  
	
  “Servicer Advance”

  	
   

  	
  Section 12(c)

  
	
  “Servicer Advance Deductions”

  	
   

  	
  Section 12(c)

  
	
  “Third Party Purchaser”

  	
   

  	
  Section 12(d)

  
	
  “Lockbox Account Sweep Date”

  	
   

  	
  Section 12(b)

  



 


2.                                       Administration
Services.


 


(a)                                  Management
Services.  Initial Servicer shall
process, administer and manage the Purchased Assets and provide the
documentation and other services described on Exhibit A hereto or
otherwise provided for in this Agreement (collectively, the “Management
Services”).  Purchaser and Initial
Servicer shall cooperate in good faith to develop and agree in writing to such
additional procedures for the provision of the Management Services as may
become necessary to more fully effectuate the terms of this Agreement.


 


(b)                                 Authorization.  Subject to the provisions of this Agreement,
Purchaser hereby (subject only to Sections 10 and 11 hereof) appoints Initial
Servicer as its agent and authorizes Initial Servicer to take any and all
reasonable steps in its name and on its behalf as are necessary or desirable to
collect all amounts due under the Purchased Assets, including, without
limitation, executing and delivering any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Purchased Assets and, after the
delinquency of any Payment and to the extent permitted under and in compliance
with applicable


 


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Law, to commence proceedings with respect to enforcing
payment thereof, all to the extent consistent with and in accordance with its
customary procedures.  Purchaser shall
furnish Initial Servicer with any powers of attorney and other documents necessary
or appropriate to enable Initial Servicer to carry out the Management Services,
and shall cooperate with Initial Servicer to the fullest extent in order to
ensure the collectability of the Purchased Assets.


 


(c)                                  Modification
of Account Documents.  Without the
prior written consent of Purchaser, Initial Servicer shall not terminate,
waive, amend or modify any material provision of any Account Document, except
(i) as may be required by Law, and (ii) ministerial changes necessary in order
to correct inaccurate or incomplete clauses or provisions (other than clauses
and provisions related to the Payment Rights).


 


(d)                                 Obligations
of Initial Servicer with Respect to Account Documents.  Initial Servicer will fulfill, and comply
with, all obligations on Initial Servicer’s part to be fulfilled under or in
connection with the Account Documents. 
Initial Servicer will not take any action that would impair the rights
of Purchaser in the Purchased Assets.


 


(e)                                  Cooperation.  Each party agrees to cooperate with the other
in the enforcement, if necessary, of such other party’s rights under any
Account Documents, whether in the form of litigation or other proceedings, as
reasonably requested by such other party. 
Purchaser shall be responsible for all reasonable out-of-pocket costs
and expenses (including reasonable attorneys’ fees and costs) arising from or
incurred in connection with such enforcement and shall promptly pay to Initial
Servicer upon request all of Initial Servicer’s reasonable out-of-pocket costs
and expenses relating thereto (including reasonable attorneys’ fees and costs).


 


3.                                       Notice of
Initial Servicer Event of Default; Other Requested Information.  Initial Servicer shall deliver to the
Purchaser:


 


(a)                                  Notice
of Initial Servicer Event of Default. 
Promptly upon becoming aware of the existence of any condition or event
which constitutes an Initial Servicer Event of Default, or any event which,
with the lapse of time and/or the giving of notice, would constitute an Initial
Servicer Event of Default and which has not been waived in writing by
Purchaser, a written notice describing its nature and period of existence and
the action Initial Servicer is taking or proposes to take with respect thereto;
and


 


(b)                                 Requested
Information.  With reasonable
promptness, any other data and information related to the Purchased Assets and
the servicing thereof which may be reasonably requested from time to time.


 


4.                                       Maintenance
of Insurance Policies.


 


(a)                                  In
connection with its activities as servicer of the Purchased Assets, Initial
Servicer agrees to present claims to the Account Party Insurer under any
insurance policy applicable to any Purchased Asset, and to settle, adjust and
compromise such claims, in each case (i) consistent with the terms of any
relevant Account Document, (ii) after receiving notice of the occurrence of any
material casualty event involving such


 


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Equipment, and (iii) provided the applicable Account
Party does not take such action on a reasonably timely basis.  Initial Servicer shall remit to the Lockbox
Account, within two (2) Business Days of receipt, any Liquidation Proceeds
received by Initial Servicer in connection therewith.


 


(b)                                 Initial
Servicer shall obtain evidence from each Account Party of insurance to the
extent required under the Account Documents, its customary procedures and the
Customary Standard.


 


(c)                                  Purchaser
shall not have any claim on account of, or direct or indirect interest in, any
Initial Servicer Insurance Policy, or proceeds thereof.


 


5.                                       Compliance
with Law.  Initial
Servicer shall perform the Management Services and its other obligations under
this Agreement in compliance with applicable Laws.  Initial Servicer’s duty under this Section 5 to comply with
applicable Law shall not be limited by the procedures established and approved
under this Agreement.


 


6.                                       Independent
Contractor.  Initial
Servicer  shall at all times be
considered an independent contractor in the performance of the Management
Services, and neither Initial Servicer nor any employee of Initial Servicer
shall be considered an employee, partner or joint venturer of Purchaser.  Neither Purchaser nor Initial Servicer, nor
any employee or agent of either of them, shall make any representation or
statement to any Person that is inconsistent with this Section 6.


 


7.                                       Standard
of Performance.  Initial
Servicer shall perform the Management Services in a commercially reasonable
manner and shall apply at least the same standard of care, diligence and
prudence in such performance as it does with respect to its own account
portfolios, and shall not discriminate against Purchaser in favor of any other
Person, including Initial Servicer or any Affiliate of Initial Servicer, for
whom it provides similar services (such standard, the “Customary Standard”).


 


8.                                       Maintenance
of Systems.  Initial
Servicer  shall exercise commercially
reasonable efforts to at all times maintain or cause to be maintained such
systems as are reasonably necessary to enable it to timely and fully perform
the Management Services, including, without limitation, maintenance of computer
hardware and software and appropriate information backup systems, and shall
comply with the provisions of Exhibit A hereto with respect thereto.


 


9.                                       Audit and
Information Rights.


 


(a)                                  Upon
the request of Purchaser, during normal business hours and upon reasonable
advance notice, and in such a manner as shall not unduly interfere with or
interrupt the operation and conduct of Initial Servicer’s business, and subject
to its customary security measures, Initial Servicer shall provide
representatives of Purchaser (including its internal and external auditors)
access to the books, records, files and papers, whether in hard copy or
computer format, used or held for use by Initial Servicer in the provision of
the Management Services, to permit an audit, at the expense of Purchaser, of
the Management Services or any out-of-pocket costs required to be reimbursed to
Initial Servicer by Purchaser pursuant to this Agreement.


 


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(b)                                 In
the event that Initial Servicer ceases to be a publicly reporting company for
any period of time, Initial Servicer shall provide Purchaser, during such
period, with (i) its unaudited quarterly consolidated balance sheet within
forty-five (45) days of the end of each fiscal quarter, and (ii) its audited
yearly consolidated balance sheet within ninety (90) days of the end of each
fiscal year.


 


10.                                 Term of
Agreement.  The term of
this Agreement shall commence on the date hereof and shall continue for six (6)
months unless this Agreement is earlier terminated pursuant to Section 11
below; provided that, upon not less than thirty (30) days prior written
notice to Initial Servicer, Purchaser shall from time to time have the continuing
option to extend and to re-extend the term until six (6) months after the last
Account Document expires, such extensions to be on the same terms and
conditions as set forth herein.  After
the six-month term, with respect to any such extensions by Purchaser, Purchaser
shall pay Initial Servicer monthly fees (the “Services Fee”) for the
Management Services of $8,093 per month. 
Upon the termination of this Agreement, Initial Servicer shall cooperate
with Purchaser in effecting an efficient transition of the Purchased Assets,
including without limitation transfer of copies of all material records, files,
computer files and information in respect of any remaining Purchased Assets,
and originals of any Account Document related to the Purchased Assets.  Upon termination of this Agreement and
assumption of servicing responsibilities by Purchaser (or upon assumption of
servicing responsibilities with respect to an Account by Purchaser pursuant to Exhibit
A), (i) Purchaser will no longer accept payments from Account Parties (and
if paid will return to such Account Parties) with respect to the amounts
included in clause (b) of the definition of Retained Payment Rights, and (ii)
Purchaser will promptly remit to Seller any other amounts constituting Retained
Payment Rights.


 


11.                                 Termination.


 


(a)                                  Either
Purchaser or Initial Servicer may terminate this Agreement due to any default
in the performance by the other party of its material obligations under this
Agreement, on written notice identifying in reasonable detail the cause for
termination.   Such termination shall be
effective without further action or notice by the terminating party thirty (30)
days after the date of such notice, unless prior to the expiration of such 30-day
period the default or other cause is cured or remedied.


 


(b)                                 Purchaser
may terminate this Agreement upon the occurrence of an Initial Servicer Event
of Default that is not cured, if a cure is available, within the applicable
cure period.


 


12.                                 Purchased
Assets; Application of Amounts Received; Servicer Advances.


 


(a)                                  All
Purchased Assets are and shall at all times be the sole and exclusive property
of Purchaser, and Initial Servicer shall not have or assert any Lien, claim or
other right to, or interest in, such property of Purchaser.  Upon expiration or termination of this
Agreement, the originals and all copies of such property of Purchaser shall be
returned to Purchaser promptly, and Initial Servicer shall have no right to
withhold such property of Purchaser for any reason, including, without
limitation, any dispute, offset, counterclaim, recoupment, defense or other
right that Initial Servicer might have against Purchaser;


 


6

















 


provided, however, that Initial Servicer may at all
times retain one copy of any documents and agreements, as may be necessary or
appropriate for tax or audit purposes or as advised by counsel.


 


(b)                                 All
Payments and other property received by Initial Servicer with respect to the
Purchased Assets (other than in respect of Retained Payment Rights) shall be
for the account of Purchaser, shall be deemed received and held in trust for
Purchaser and, in respect of any Payments and other property received by
Initial Servicer and not remitted by the applicable Account Party directly to
the Lockbox Account, shall be remitted by Initial Servicer to the Lockbox
Account on a date not later than two (2) Business Days following receipt of
such Payment and/or other property by Initial Servicer.  Subject to Initial Servicer’s removal and refund
rights described below in this Section 12(b), all Payments remitted to the
Lockbox Account shall be swept from such Lockbox Account by Initial Servicer
and deposited in the Collection Account on the date that is one (1) Business
Day following the date of remittance of such Payments into the Lockbox Account
(each such date, a “Lockbox Account Sweep Date”).  Except as expressly provided in Section 12(c), Initial
Servicer shall not be entitled to set-off from amounts to be paid by Initial
Servicer to the Lockbox Account under any provision of this Agreement any
amounts purported to be owed by Purchaser or any of its Affiliates to Initial
Servicer or any of its Affiliates.  For
so long as this Agreement has not been terminated, all late charges shall be
paid to Initial Servicer.  Initial
Servicer shall provide the Settlement Report described in Exhibit A hereto and
such other information regarding all Payments and other property remitted to
the Lockbox Account on such remittance date as may be reasonably requested by
Purchaser, including, without limitation, matching such Payments and other
property to the corresponding Purchaser account number.


 


(c)                                  Initial
Servicer agrees that, with respect to each Payment Date, Initial Servicer will
remit to the Collection Account an amount equal to the Payments correlating
thereto, whether or not Initial Servicer has received payment thereof from the
related Account Party, which amount shall be deemed a full recourse loan by
Initial Servicer to Purchaser (each such amount, being referred to herein as a
“Servicer Advance”); provided, however, that Initial Servicer shall not be
required to make any Servicer Advances in respect of an Account that is no
longer being serviced by Initial Servicer under this Agreement.  Initial Servicer will make Servicer Advances
in respect of any Account only in an amount up to the amount equal to three (3)
monthly payments for such Account. 
Servicer Advances will be repaid by Purchaser on the earliest to occur
of the following: (i) the date on which a Payment is, or Payments are, as
applicable, subsequently received by Initial Servicer from an Account Party
which represent such Servicer Advance (and Initial Servicer may retain the same
in satisfaction of Purchaser’s repayment obligation relating thereto, provided
that any failure by Initial Servicer to retain or net out any such amount shall
not impair any right of recourse by Initial Servicer against Purchaser for
repayment of any Servicer Advance); (ii) the date on which the servicing
contemplated herein in respect of the applicable Account is terminated; (iii)
provided that Initial Servicer shall have paid Servicer Advances outstanding on
such Account in an amount equal to three (3) monthly Payments, the next
succeeding Payment Date (and if to be repaid on such date, the same may be
netted out from Initial Servicer’s then scheduled


 


7

















 


remittance to the Collection Account, provided that
any failure by Initial Servicer to retain or net out any such amount shall not
impair any right of recourse by Initial Servicer against Purchaser for
repayment of any Servicer Advance); and (iv) five (5) Business Days following
the date on which Initial Servicer has determined such Account to be
uncollectible in accordance with its customary and historic practices.  No termination of this Agreement shall
reduce Purchaser’s obligations to repay all Servicer Advances.


 


(d)                                 If
an Account Party remits to Initial Servicer amounts that are not immediately
identifiable as Payments, and that are not immediately identifiable as payments
in respect of any Retained Payment Rights, then Initial Servicer shall apply
such amounts as follows:  first,
to delinquent payments in the order such payments were due, and second, so long
as all payments due are current, to Purchaser.


 


(e)                                  If
Initial Servicer receives Liquidation Proceeds in respect of any Account,
Initial Servicer shall apply such Liquidation Proceeds as follows: first,
in respect of any delinquent amounts owed to Purchaser or Initial Servicer, second,
to Purchaser to the extent of the amount of all other obligations with respect
to such Account to Purchaser, and third, to Initial Servicer to the
extent of its Residual Interest.


 


(f)                                    To
the extent that Initial Servicer receives amounts relating to Taxes with
respect to an Account, whether or not constituting part of the collections
relating to such Account, Initial Servicer shall cause the same to be remitted
to the relevant taxing authority in order to satisfy any valid, uncontested
obligations in respect of such Taxes. 
In addition, if any Account Party remits amounts relating to Taxes to
the Lockbox Account, Initial Servicer shall at all times have the right,
without further authorization or approval from Purchaser, to direct the bank
with whom the Lockbox Account is established to remove the same from the
Lockbox Account and pay such amounts to Initial Servicer, and Initial Servicer
shall cause such amounts to be remitted to the relevant taxing authority in
order to satisfy any valid, uncontested obligations in respect of such
Taxes.  Purchaser agrees to execute such
documents and agreements and to take such actions as the bank may reasonably
request to effectuate the removal of such amounts from the Lockbox Account.


 


13.                                 Representations
of Initial Servicer. 
Initial Servicer hereby represents and warrants to Purchaser that:


 


(a)                                  Initial
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to own its assets and carry on its business as now being
conducted and to execute, deliver and perform this Agreement.


 


(b)                                 The
execution and delivery by Initial Servicer of this Agreement have been duly
authorized by all necessary corporate action on the part of Initial Servicer,
and this Agreement has been duly and validly executed and delivered by Initial
Servicer and constitutes the valid and binding obligation of Initial Servicer
enforceable against Initial Servicer in accordance with its terms.


 


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(c)                                  Neither
the execution and delivery by Initial Servicer of this Agreement nor compliance
by Initial Servicer with the terms and provisions thereof will conflict with or
result in a breach of the provisions of Initial Servicer’s certificate of
incorporation or bylaws, any loan agreement, mortgage, indenture, security
agreement or other contract to which Initial Servicer is a party, or any law,
regulation or order of any court or government or governmental agency or
instrumentality.


 


14.                                 Representations
of Purchaser.  Purchaser
hereby represents and warrants to Initial Servicer that:


 


(a)                                  Purchaser
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to own its assets and carry on its business as now being conducted
and to execute, deliver and perform this Agreement.


 


(b)                                 The
execution and delivery by Purchaser of this Agreement have been duly authorized
by all necessary corporate action on the part of Purchaser, and this Agreement
has been duly and validly executed and delivered by Purchaser and constitutes
the valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms.


 


(c)                                  Neither
the execution and delivery by Purchaser of this Agreement nor compliance by
Purchaser with the terms and provisions thereof will conflict with or result in
a breach of the provisions of Purchaser’s certificate of incorporation or
bylaws, any loan agreement, mortgage, indenture, security agreement or other
contract to which Purchaser is a party, or any law, regulation, or order of any
court or government or governmental agency or instrumentality.


 


15.                                 Late Payments.  If Initial Servicer fails to pay any amount
that may become due to Purchaser hereunder on its due date, then (i) interest
shall accrue thereon from the due date until paid in full at a rate equal to
18% per annum, and (ii) Initial Servicer shall reimburse Purchaser upon demand
for any and all collection costs (including, without limitation, reasonable
attorneys’ fees) incurred by Purchaser in connection with the enforcement of
the Operative Documents.


 


16.                                 Notices.  All notices, consents and other
communications under the Operative Documents shall be in writing and shall be
deemed to have been duly given (a) when delivered by hand or by Federal Express
or a similar overnight courier to, or (b) when successfully transmitted by
telecopier to, the party for whom intended, at the address or telecopier number
for such party set forth below (or at such other address or telecopier number
for a party as shall be specified by like notice, provided, however, that any
notice of change of address or telecopier number shall be effective only upon
receipt):


 


9

















 


	
  If to Initial Servicer:

  	
  HPSC, Inc.,

  
	
   

  	
  60 State Street

  
	
   

  	
  Boston, Massachusetts  02109

  
	
   

  	
  Telephone:

  	
  (617) 720-7251

  
	
   

  	
  Facsimile:

  	
  (617) 723-4786

  
	
   

  	
  Attention:

  	
  Rene Lefebvre

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
  Dennis Townley

  
	
   

  	
  Day, Berry & Howard LLP

  
	
   

  	
  260 Franklin Street

  
	
   

  	
  Boston, MA 02110

  
	
   

  	
  Telephone:

  	
  (617) 345-4771

  
	
   

  	
  Facsimile:

  	
  (617) 345-4745

  
	
   

  	
   

  	
   

  
	
  If to Purchaser:

  	
  GE Healthcare Financial Services

  
	
   

  	
  500 West Monroe

  
	
   

  	
  Chicago, Illinois 
  60661

  
	
   

  	
  Telephone:

  	
  (312) 441-6966

  
	
   

  	
  Facsimile:

  	
  (866) 252-2041

  
	
   

  	
  Attention:

  	
  Mark Kuntze

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
  GE Healthcare Financial Services

  
	
   

  	
  20225 Watertower Blvd., Suite 300

  
	
   

  	
  Brookfield, Wisconsin  53045

  
	
   

  	
  Telephone:

  	
  (262) 798-4611

  
	
   

  	
  Facsimile:

  	
  (262) 798-4590

  
	
   

  	
  Attention:

  	
  Carlos Carrasquillo,

  
	
   

  	
   

  	
  General Counsel, Equipment Finance

  



 


17.                                 Miscellaneous.


 


(a)                                  This
Agreement contains the entire understanding of the parties with respect to the
subject matter hereof.  There are no
restrictions, promises, warranties, covenants or undertakings other than those
expressly set forth in this Agreement. 
This Agreement supersedes all prior negotiations, agreements and
undertakings between the parties with respect to such subject matter.


 


(b)                                 No
amendment of this Agreement shall be effective unless in writing and signed by
Initial Servicer and Purchaser.


 


(c)                                  This
Agreement may be executed in several counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute but one and
the same agreement.  Each of the parties
to this Agreement agrees that a signature affixed to a counterpart of this
Agreement and delivered by facsimile by any person is intended to be its, her
or his signature and shall be valid, binding and enforceable against such
person.


 


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(d)                                 This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York applicable to contracts made and wholly
performed within such state.


 


(e)                                  Each
of the parties hereto hereby expressly and irrevocably submits to the exclusive
personal jurisdiction of the United States District Court for the Southern
District of New York and to the jurisdiction of any other competent court of
the State of New York.  Each party
irrevocably consents to the service of process outside the territorial
jurisdiction of the foregoing courts in any such action or proceeding by
mailing copies thereof by registered United States mail, postage prepaid, return
receipt requested, to its address as specified in or pursuant to
Section 16 hereof. However, the foregoing shall not limit the right of a
party to effect service of process on the other party by any other legally
available method.


 


(f)                                    Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other party; provided,
however, that Purchaser may assign its rights hereunder to a Permitted Assignee
without the consent of Initial Servicer. 
Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
permitted successors and assigns.


 


(g)                                 If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.


 


(h)                                 Neither
party shall be responsible for delays or failure of performance resulting from
acts of God, strikes, walkouts, riots, acts of war, acts of terrorism,
epidemics, governmental regulations and power failure.


 


(i)                                     Each
party shall be responsible for the payment of its own attorneys’ fees, expenses
and any other costs incurred in connection with the negotiation and closing of
the transactions contemplated by this Agreement and any other documents
executed in connection herewith.


 


(j)                                     All
representations, warranties and indemnities contained in this Agreement (and
any other agreement delivered pursuant hereto), all of Purchaser’s obligations
under Sections 11(b), 12(d), and 12(e) of this Agreement and all of Initial
Servicer’s obligations under Sections 2(d), 5, 10, 12(a), 12(b), 12(d), 12(e),
12(f), and 15 of this Agreement shall survive the termination of this
Agreement.


 


18.                                 Jury
Trial Waiver.  EACH OF
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY EXHIBIT


 


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OR OTHER ATTACHMENT
HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER
VERBAL OR WRITTEN) RELATING TO THE FOREGOING. 
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER
INTO THIS AGREEMENT.


 


[SIGNATURES APPEAR
ON NEXT PAGE]


 


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IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the date first written above.


 


 


	
   

  	
  HPSC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Rene Lefebvre

  	
   

  
	
   

  	
   

  	
   

  	
  Its: CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Gordon Olivant

  	
   

  
	
   

  	
   

  	
   

  	
  Its: Managing Director

  
						



 


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