Exhibit 99.5
CUSTODY AGREEMENT
This CUSTODY AGREEMENT (this "Agreement"), dated as of
November __, 2003, by and among PHEAA STUDENT LOAN TRUST I (the "Issuer"),
MANUFACTURERS AND TRADERS TRUST COMPANY as the eligible lender trustee on behalf
of the Issuer (the "Eligible Lender Trustee"), MANUFACTURERS AND TRADERS TRUST
COMPANY, as Indenture Trustee (the "Indenture Trustee") and THE PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE AGENCY, as custodian (the "Custodian")
(collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, the Issuer and the Eligible Lender Trustee desire to
retain and employ the Custodian to act, and the Custodian is willing to act, as
custodian of certain Student Loan Files (as defined below) for the benefit of
the Indenture Trustee on behalf of the Noteholders and various other secured
parties described in the Indenture (as defined below) (collectively, the
"Secured Parties").
WHEREAS, the Parties desire to set forth the Custodian's duties as
custodian.
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth herein, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. The Issuer or the Eligible Lender Trustee on behalf of the Issuer or
one of their respective affiliates shall, from time to time, deliver to the
Custodian certain student loan promissory notes and other related documents
(collectively, the "Student Loan Files"), which such Student Loan Files shall,
from time to time, be (i) transferred and assigned by the Pennsylvania Higher
Education Assistance Agency to the PHEAA Student Loan Foundation, Inc. (the
"Depositor") or the Eligible Lender Trustee on behalf of the Depositor and by
the Depositor or the Eligible Lender Trustee on behalf of the Depositor to the
Issuer or the Eligible Lender Trustee on behalf of the Issuer and (ii) pledged
by the Issuer or the Eligible Lender Trustee on behalf of the Issuer to the
Indenture Trustee in connection with the financing of certain student loan
asset-backed Notes, as set forth in that certain Indenture of Trust, dated as of
November __, 2003 (as may be amended, supplemented or otherwise modified from
time to time, the "Indenture"), among the Issuer, the Indenture Trustee and the
Eligible Lender Trustee. The Issuer does hereby retain and employ the Custodian
as custodian for the purpose of retaining and maintaining the Student Loan Files
on the Indenture Trustee's behalf (for the benefit of the Noteholders' and other
Secured Parties under the Indenture) and protecting such Student Loan Files in
secure location in the offices of the Custodian.
2. The Custodian shall provide an initial trust receipt upon delivery
of the Student Loan Files [and such loan documents as are listed on Exhibit A
attached hereto] and will provide a report of any discrepancies to the Issuer
and the Indenture Trustee within [five (5)] business days after delivery.
3. The Custodian shall provide a final trust receipt within __ days of
the related Closing Date with respect to any Financed Student Loan
collateralizing each Series of Notes
issued pursuant to the Indenture and will provide a report of any discrepancies
outstanding as of such ___ day to the Issuer and the Indenture Trustee.
4. The Custodian shall not release any Student Loan Files except with
the written consent of the Indenture Trustee (or such other person or persons
designated by the Indenture Trustee to the Custodian in writing from time to
time). Upon an appropriate receipt of such written instructions for each such
release, the Custodian shall deliver the withdrawn Student Loan Files to the
Indenture Trustee (or as otherwise instructed by the Issuer with the written
consent of the Indenture Trustee).
5. No modification of this Agreement shall be valid unless made by
written agreement, executed and approved by the Parties hereto. This Agreement
may be amended at any time, in such manner as may be mutually agreed upon in
writing by the Parties, and may be terminated (i) by the Custodian at any time
by delivery of thirty (30) days written notice thereof to the Parties, or (ii)
by the Indenture Trustee, upon thirty (30) days written notice to the Parties;
whereupon in either case, all Student Loan Files shall be delivered to the
Indenture Trustee (or as otherwise instructed by the Indenture Trustee) upon an
appropriate receipt. This Agreement shall not be terminated by the Issuer
without the prior written consent of the Indenture Trustee and the Custodian
(and in the case of any such termination, all Student Loan Files shall be
delivered to the Indenture Trustee, or to such other party as the Indenture
Trustee may designate from time to time). In any event, this Agreement will
terminate upon the termination of the Indenture, whereupon all Student Loan
Files shall be delivered to (or upon the orders of) the Issuer or the Eligible
Lender Trustee.
6. The Custodian may rely absolutely upon the genuineness and
authorization of the signature and purported signature of any person reasonably
believed by it to be an authorized representative of the Indenture Trustee, upon
any instruction, notice, release, request, affidavit, or other document
delivered to it (to the extent that the delivery of any such instruction,
notice, release, request, affidavit, or other document by such person is
permitted or otherwise within the scope of such person's rights or duties as set
forth in this Agreement), including without limitation any such document
delivered by facsimile transmission.
7. Each of the Parties hereto hereby agrees that the Custodian will be
held harmless from any and all claims, liability, losses, actions, suits, or
proceedings at law or in equity, or any other expenses, fees, or charges of any
character or nature, which it may incur or with which it may be threatened by
reason of its acting as custodian, unless caused by its willful misconduct or
gross negligence in connection therewith, and the Issuer agrees to indemnify the
Custodian against any and all reasonable expenses, including reasonable
attorney's fees and the costs of defending any action, suit, or proceeding, or
resisting any claim. The Issuer's obligations under this Section 6 shall survive
any termination of this Agreement.
8. The Issuer shall pay compensation to the Custodian for its services
hereunder as may be reasonably agreed to from time to time between the Issuer
and the Custodian.
9. Reasonable expenses incurred by the Custodian in connection with its
services hereunder shall be paid or reimbursed by the Issuer. Reasonable
additional charges may be made by the Custodian for special or extraordinary
services, and shall be paid by the Issuer.
10. All notices and other written communications provided for hereunder
shall be in writing and sent by ordinary mail, registered mail, national
overnight courier service, email, fax, or delivered by hand, shall be sufficient
for the purpose of providing written notice under this Agreement. All such
communications must actually be received to be effective. All such
communications should be directed to the following addresses:
If to the Issuer:
PHEAA Student Loan Trust I
c/o Wachovia Bank of Delaware, N.A.
One Xxxxxx Square, Suite 102
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Indenture Trustee:
Manufacturers and Traders Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Eligible Lender Trustee:
Manufacturers and Traders Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Custodian:
Pennsylvania Higher Education Assistance Agency
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile; (000) 000-0000
11. Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Indenture except if the context in which such
terms are use clearly indicates to the contrary.
12. This Agreement shall not be assigned to any party without the
written consent of the Parties.
13. Should any section or part of any section of this Agreement be
declared void, invalid, or unenforceable by any court of law for any reason,
such determination shall not render void, invalid, or unenforceable any other
section or other part of any section of this Agreement.
14. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Pennsylvania, without giving effect to principles
of conflicts of law.
15. This Agreement may be executed in counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
PHEAA STUDENT LOAN TRUST I,
as Issuer
By: Pennsylvania Higher Education
Assistance Agency,
as Issuer's Administrator
By:
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Name:
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Title:
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MANUFACTURERS AND TRADERS
TRUST COMPANY,
not in its individual capacity but solely as
Eligible Lender Trustee
By:
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Name:
-----------------------------
Title:
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MANUFACTURERS AND TRADERS
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By:
-----------------------------
Name:
-----------------------------
Title:
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY,
as Custodian
By:
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Name:
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Title:
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