EXHIBIT 99.5
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF NOVEMBER 20, 2002
AMONG
SLM STUDENT LOAN TRUST 2002-7
(THE "TRUST")
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
("CSFBi")
AND
DLJ INTERNATIONAL CAPITAL
("DLJ" AND "STANDBY SWAP PROVIDER")
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to CSFBi for the purpose of:--
Section 5(a)(v): Not Applicable
Section 5(a)(vi): Not Applicable
Section 5(a)(vii): Not Applicable
Section 5(b)(iv): Not Applicable
and in relation to the Trust for the purpose of:--
Section 5(a)(v): Not Applicable
Section 5(a)(vi): Not Applicable
Section 5(a)(vii): Not Applicable
Section 5(b)(iv): Not Applicable
(b) "SPECIFIED TRANSACTION" shall have the meaning specified in Section 14
of this Agreement.
(c) EVENTS OF DEFAULT.
(i) The only "EVENTS OF DEFAULTS" specified in Section 5(a) of this
Agreement that apply to CSFBi are the following:
Section 5(a)(i) - "FAILURE TO PAY OR DELIVER";
Section 5(a)(iii) - "CREDIT SUPPORT DEFAULT";
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Section 5(a)(vi) -- "CROSS-DEFAULT";
Section 5(a)(vii) - "BANKRUPTCY"; and
Section 5(a)(viii) - "MERGER WITHOUT ASSUMPTION".
With respect to CSFBi only:--
"SPECIFIED INDEBTEDNESS" will have the meaning specified in
Section 14 of this Agreement.
"THRESHOLD AMOUNT" means, in respect of CSFBi, an amount (or its
equivalent in other currencies) equal to $100,000,000.
(ii) The only "EVENTS OF DEFAULTS" specified in Section 5(a) of this
Agreement that apply to the Trust are the following:
Section 5(a)(i) - "FAILURE TO PAY OR DELIVER";
Section 5(a)(vi) - "CROSS DEFAULT", PROVIDED, HOWEVER, that it
shall constitute an Event of Default under Section 5(a)(vi) of
this Agreement with respect to the Trust only if the Notes
outstanding under the Indenture have been accelerated pursuant to
Section 5.1 of the Indenture and such acceleration has become
non-rescindable and non-waivable; and
Section 5(a)(vii) - "BANKRUPTCY"; provided that clause (2)
thereof shall not apply.
(d) TERMINATION EVENTS.
(i) All of the Termination Events specified in Section 5(b) of this
Agreement, including but not limited to the "ADDITIONAL TERMINATION
EVENT" provisions of Section 5(b)(v) of this Agreement will apply to
CSFBi.
(ii) Section 5(b)(i), "ILLEGALITY", and Section 5(b)(ii), "TAX EVENT",
will apply to the Trust.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement will not apply to CSFBi and will not apply to the Trust.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
Notwithstanding anything to the contrary in this Agreement, if an Early
Termination Date occurs or is effectively designated, CSFBi and the
Trust agree as follows:
(i) The Calculation Agent shall calculate an amount that would be
payable to or by the Trust under this Agreement in respect of
such Early Termination Date (the "Termination Payment"). The
Calculation Agent shall make these calculations as if it were (i)
the Non-defaulting Party, (ii) the party that is not the Affected
Party or (iii) both, all as contemplated by Section 6(e) of this
Agreement.
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(ii) To the extent that CSFBi is required to pay the Termination
Payment to the Trust, CSFBi shall pay such amount in accordance
with the terms of this Agreement.
(iii) To the extent that the Trust is required to pay the Termination
Payment to CSFBi, the Trust shall pay such Termination Payment in
accordance with the applicable provision of Section 2.7C.4,or
Section 2.7C.17 of the Administration Agreement or Section 5.4 of
the Indenture.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENTS: The occurrence of the following event
shall constitute an Additional Termination Event:
An Additional Termination Event shall occur if:
(x) any of the following events occurs: (1) the long-term senior
unsecured debt rating of CSFBi is withdrawn by Standard & Poor's Ratings
Services, a division of the McGraw Hill Companies, Inc., or any
successor rating agency ("S&P"), (2) the long-term senior unsecured debt
rating of CSFBi is downgraded below "A" by S&P; (3) the long-term senior
unsecured debt rating or the short-term debt rating of CSFBi is
withdrawn by ▇▇▇▇▇'▇ Investors Service, Inc., or any successor rating
agency ("Moody's"), (4) the long-term senior unsecured debt rating of
CSFBi is downgraded below "A3" by Moody's, (5) the short-term debt
rating of CSFBi is downgraded below "P-1" by Moody's; (6) the short-term
debt rating of CSFBi is withdrawn by Fitch Ratings, Inc. or any
successor rating agency ("Fitch"), or (7) the short-term debt rating of
CSFBi is downgraded below "F-1" by Fitch; and
(y) CSFBi does not, within 30 days of such withdrawal or downgrade,
procured a Collateral Arrangement, a Replacement Transaction, or a
Ratings Reaffirmation; PROVIDED, however, that if CSFBi shall obtain a
Ratings Reaffirmation during such time period, upon the occurrence of a
subsequent reduction or withdrawal of CSFBi's rating, CSFBi shall obtain
another Ratings Reaffirmation or either a Collateral Arrangement or
Replacement Transaction within 30 days of such subsequent downgrade or
withdrawal.
CSFBi shall be the Affected Party for purposes of this Additional
Termination Event.
For purposes of this Additional Termination Event:
"Collateral Arrangement" means an executed collateral agreement
substantially in the form attached hereto. It shall be a condition
precedent that a written acknowledgment from the rating agency whose
rating was reduced or withdrawn, be obtained stating that the rating of
the Notes (as in effect immediately prior to such reduction or
withdrawal) will not be reduced
"Replacement Transaction" means a transaction with a replacement
counterparty who shall assume CSFBi's position with respect to a
Transaction on the same terms and conditions as such Transaction and
this Agreement, MUTATIS MUTANDIS or such other amendments to the terms
of this Agreement as may be approved by the parties, and where such
replacement counterparty pays to, or receives from, CSFBi the fair
market value of CSFBi's position with respect to that Transaction as
determined by CSFBi in good faith. It shall be a condition precedent
that a written acknowledgment from the rating agency whose rating was
reduced or withdrawn, be obtained stating that the rating of the Notes
(as in effect immediately prior to such reduction or withdrawal) will
not be reduced.
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"Rating Affirmation" means a written acknowledgment from the Rating
Agency whose rating was reduced or withdrawn, that, notwithstanding such
withdrawal or downgrade, the then-current rating of the Notes will not
be reduced.
If DLJ has become the swap counterparty pursuant to Part 6 of this
Schedule, the foregoing ratings shall refer to the ratings of DLJ's
Credit Support Provider.
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PART 2. TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, CSFBi and the Trust each will make the following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it under this
Agreement.
In making this representation, it may rely on (i) the accuracy of any
representation made by the other party pursuant to Section 3(f) of this
Agreement; (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, PROVIDED, that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the other
party does not deliver a form or document under Section 4(a)(iii) by
reason of material prejudice to its legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, CSFBi and the Trust will make the representations specified below:--
(i) CSFBi represents that it is an unlimited company incorporated
under the laws of England and Wales.
(ii) The Trust represents that it is a statutory trust organized under
the laws of the State of Delaware.
PART 3. DOCUMENTS TO BE DELIVERED
For purposes of Sections 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents, as applicable:--
(a) Tax forms, documents or certificates to be delivered are:
Subject to Section 4(a)(iii) of this Agreement, each party agrees to
complete (accurately and in a manner reasonably satisfactory to the
other party), execute, arrange for any required certification of, and
deliver to the other party or such government or taxing authority as
such other party directs, any form, document, or certificate that may be
required or reasonably requested in order to allow such other party to
make payment under this Agreement without any deduction or withholding
for or on the account of any Tax rate, promptly upon the earlier of (i)
reasonable demand, (ii) learning that the form, document or certificate
is required, or (iii) learning that the form, document or certificate
previously provided has become obsolete or incorrect.
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(b) Other Documents to be delivered are:-
PARTY REQUIRED TO FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO COVERED BY SECTION
DELIVER BE DELIVERED 3(d) REPRESENTATION
-------------------- -------------------------------------- --------------------------- -------------------------
CSFBi & The Trust An opinion of counsel to such party At or promptly following
reasonably satisfactory in form and the execution of this No.
substance to the other party. Agreement.
The Trust Any and all information reasonably As soon as practicable
requested by CSFBi to verify the after request by the No.
calculations made by the Calculation other party.
Agent under any Transaction.
The Trust Copies of all Basic Documents At or promptly following No
relating to the issuance of the the execution of this
Class A-5 Notes. Agreement
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES: For the purpose of Section 12(a) of this
Agreement:-
Address for notices or communications to CSFBi: -
(1) Address for notices or communications to CSFBi (other than by
facsimile):-
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal Department
Telex No.: 264521 Answerback: CSFBI G
(2) For the purpose of facsimile notices or communications under this
Agreement (other than a notice or communication under Section 5 or 6):-
Facsimile No.: 020 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 020 7888 2028 Designated responsible employee for the
purposes of Section 12(a)(iii): Senior Legal Secretary
Address for notices or communications to the Trust:-
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(For all purposes)
SLM Student Loan Trust 2002-7
c/o Chase Manhattan Bank USA, National Association
Christiana Center/OPS 4
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Messaging System Details: None
With copies to:
(For all purposes)
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Student Loan Marketing Association
c/o ▇▇▇▇▇▇ ▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Corporate Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Messaging System Details: None
(FOR PAYMENT CONFIRMATION ONLY)
Student Loan Marketing Association
c/o ▇▇▇▇▇▇ ▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Swap Operations Specialist
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Messaging System Details: None
(For purposes of notices under Section 5, 6, 7 and 12(b) of this Agreement)
SLM Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel's Office
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:--
CSFBi appoints as its Process Agent: Credit Suisse First Boston
Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, Legal and Compliance Department.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
CSFBi is not a Multibranch Party.
The Trust is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Trust. CSFBi hereby
acknowledges and agrees that the Trust shall delegate all of its obligations as
Calculation Agent to the Student Loan Marketing Association, in its capacity as
administrator of the Trust. All determinations and calculations by the
Calculation Agent shall be (a) made in good faith and in a commercially
reasonable manner and (b) determined, where applicable, on the basis of then
prevailing market rates or prices.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
CSFBi:-- The Credit Support Annex between CSFBi and the Trust
DLJ:-- The Guarantee Agreement executed by Credit Suiise First
Boston (USA) Corporation dated November 26, 2002.
The Trust:-- The Credit Support Annex between CSFBi and the Trust..
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to CSFBi: Not Applicable.
Credit Support Provider means in relation to DLJ: Credit Suiise First
Boston (USA) Corporation.
Credit Support Provider means in relation to the Trust: Not Applicable.
(h) GOVERNING LAW AND SUBMISSION TO JURISDICTION. This Agreement will be
governed by and construed in accordance with the laws of the State of
New York
(without reference to choice of law doctrine) and each party hereby submits to
the jurisdiction of the state and federal courts having jurisdiction for the
State of
New York and the City of
New York.
(i) NETTING OF PAYMENTS. Section 2(c) of this Agreement will not apply to
any Transaction under this Agreement.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
PART 5. OTHER PROVISIONS.
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(a) AMENDMENTS TO THE AGREEMENT.
(1) Section 2(a)(iii) of this Agreement is hereby amended, with
respect to CSFBi only, to read as follows:
(iii) Each obligation of CSFBi under Section 2(a)(i) is subject
to (1) the condition precedent that no Event of Default with
respect to the other party has occurred and is continuing and (2)
the condition precedent that no Early Termination Date in respect
of the relevant Transaction has occurred or been effectively
designated.
(1) Section 3 of this Agreement is hereby amended by inserting the
following as Section 3(g), 3(h) and 3(i) which reads in their entirety
as follows:
(g) ELIGIBLE CONTRACT PARTICIPANT. Each party represents to the
other party (which representation will be deemed to be repeated
by each party on each date on which a Transaction is entered
into) that it is an "eligible contract participant" as defined in
Section 1a(12) of the U.S. Commodity Exchange Act, 7 U.S.C.
Section 1a(12).
(h) QUALIFIED FINANCIAL CONTRACT, SWAP AGREEMENT. In the case of
each of CSFBi and the Trust: Without limiting the applicability
of any other provision of the U.S. Bankruptcy Code as amended
(the "Bankruptcy Code") (including without limitation Sections
362, 546, 556, and 560 thereof and the applicable definitions in
Section 101 thereof), it intends and acknowledges that this
Agreement, including all Transactions hereunder, shall constitute
a "swap agreement" as defined in Section 101 of the Bankruptcy
Code, that the rights of the parties under Section 6 of this
Agreement will constitute contractual rights to liquidate
Transactions, that any margin or collateral provided under any
margin, collateral, security, or similar agreement related hereto
will constitute a "margin payment" as defined in Section 101 of
the Bankruptcy Code, and that the parties are entitled to the
rights under, and protections afforded by, Sections 362, 546,
556, and 560 of the Bankruptcy Code.
(i) NON-RELIANCE. (i) It is not relying upon any representations
except those expressly set forth in this Agreement or any
Confirmation evidencing a Transaction; (ii) it has consulted with
its own business, financial, investment, tax, accounting and
legal advisors to the extent it has deemed appropriate in
connection with its decision to enter into this Agreement and
each such Transaction; and (iii) it has independently evaluated
the potential financial benefits and risks, the tax and
accounting implications and its policies and objectives of this
Agreement and each such Transaction, and has independently
decided to enter into this Agreement and each such Transaction on
the basis of such evaluation.
(j) ADDITIONAL REPRESENTATIONS OF the Trust. The Trust
represents to CSFBi as of the date hereof that:
(1) With respect to each source of funds to be used by it
to enter into such Transactions (each such source being
referred to herein as a "source"), the Source is not the
assets of any "plan" (as such term is defined in Section
4975 of the Code) subject to Section 4975 of the Code or
any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) subject to Title I of ERISA, or
otherwise out of "plan assets" within the meaning of
United States Department of Labor regulation Section
2510.3-101, and
(2) Each Transaction is intended to be exempt from, or
otherwise not subject to regulation under, the Investment
Company Act of 1940 and the Trust is exempt from
regulation under such Act.
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(2) Section 5(a)(vi) of this Agreement is hereby amended by deleting
the words ", or becoming capable at such time of being declared,".
(3) Section 6(b)(ii) of this Agreement is hereby amended:
(i) by deleting the pharse " its Offices or Affiliates" in the
next to the last line thereof; and,
(ii) by inserting, at the end of the first paragraph, the
following:
", provided that the party seeking to make the transfer to
avoid a Termination Event shall deliver to the Trust (in the
case of transfers by CSFBi) and to CSFBi (in the case of
transfer by the Trust) written confirmation from each Rating
Agency then rating the Notes that such transfer will not
result in the then-current rating on the Notes being
withdrawn or lowered.
(4) Section 7 of this Agreement is hereby amended by:
(i) adding in the third line thereof after the word "party," the
words "which consent will not be unreasonably withheld or
delayed,"; and
(ii) adding after Subparagraph (b) thereof the following
Subparagraphs (c) and (d):
(c) in addition to, and not in lieu of, the preceding
transfer rights, CSFBi may, without recourse by the Trust,
transfer this Agreement and each Transaction hereunder to
any of CSFBi's Affiliates PROVIDED that: (i) either (A) such
transferee or such transferee's Credit Support Provider must
have a long-term, senior, unsecured debt rating or financial
program rating (or other similar rating) by at least Moody's
and S&P which is equal to or greater than the comparable
long-term, unsecured, unsubordinated debt obligation rating
or financial program rating (or other similar rating) of
CSFBi immediately prior to such transfer or (B) the
obligations transferred to such transferee must be
guaranteed by CSFBi pursuant to a guaranty or other
agreement or instrument mutually agreed upon by both parties
acting reasonably and (ii) an Event of Default, a
Termination Event, Potential Event of Default or potential
Termination Event does not occur as a result of such
transfer.
(d) it shall be a condition precedent to the effectiveness
of any such transfer or assignment of this Agreement and
each Transaction hereunder by CSFBi that each Rating Agency
then rating the Notes issue written acknowledgment, that,
notwithstanding such transfer or assignment, the
then-current rating of the Notes will not be reduced.
(5) The definition of "Reference Market-makers" contained in Section
14 of this Agreement is hereby amended by adding in the fourth line
thereof after the word "credit" the words "or to enter into transactions
similar in nature to Transactions".
(b) PERMITTED SECURITY INTEREST. For purposes of Section 7 of this
Agreement, CSFBi hereby consents to the Permitted Security Interest, subject to
the provisions of this paragraph below.
"PERMITTED SECURITY INTEREST" means the collateral assignment by the
Trust of the Swap Collateral to the Indenture Trustee pursuant to the
Indenture.
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"SWAP COLLATERAL" means all right, title and interest of the Trust in
this Agreement, each Transaction hereunder, and all present and future
amounts payable by CSFBi to the Trust under or in connection with this
Agreement or any Transaction governed by this Agreement, whether or not
evidenced by a Confirmation, including, without limitation, any transfer
or termination of any such Transaction.
Notwithstanding the Permitted Security Interest, the Trust shall not be
released from any of its obligations under this Agreement or any Transaction,
and CSFBi may exercise its rights and remedies under this Agreement without
notice to, or the consent of the Indenture Trustee, except as otherwise
expressly provided in this Agreement or in the Indenture with respect to CSFBi's
right to bring legal proceedings against the Trust or the Indenture Trustee for
purposes of enforcing this Agreement against the Trust.
CSFBi's consent to the Permitted Security Interest is expressly limited
to the Indenture Trustee for the benefit of the Noteholders under the Indenture,
and CSFBi does not consent to the sale or transfer by the Indenture Trustee of
the Swap Collateral to any other person or entity (other than a successor to the
Indenture Trustee under the Indenture acting in that capacity), and the manner
in which the Indenture Trustee may realize upon the Swap Collateral shall be to
declare an Event of Default, Additional Termination Event or designate an Early
Termination Date by notice given to CSFBi pursuant to the provisions of this
Schedule and the Agreement.
The Trust hereby acknowledges that, as a result of the Permitted
Security Interest, all rights under this Agreement, including any Transaction,
have been assigned to the Indenture Trustee pursuant to the Indenture, and
notwithstanding any other provision in this Agreement, the Trust may not take
any action hereunder to exercise any of such rights without the prior written
consent of the Indenture Trustee, including, without limitation, providing any
notice under this Agreement, the effect of which would be to cause an Early
Termination Date to occur or be deemed to occur. If the Trust gives any notice
to CSFBi for the purposes of exercising any of the Trust's rights under this
Agreement, CSFBi shall have the option of treating that notice as void unless
that notice is signed by the Indenture Trustee acknowledging its consent to the
provisions of that notice. The foregoing notwithstanding, nothing herein shall
be construed as requiring the consent of the Indenture Trustee for the
performance by the Trust of any of its obligations hereunder.
Except as expressly provided in this Agreement for any Event of Default,
Termination Event, or Additional Termination Event, CSFBi and the Trust may not
enter into any agreement to dispose of any Transaction, whether in the form of a
termination, unwind, transfer or otherwise without the prior written consent of
the Indenture Trustee.
No amendment, modification, or waiver in respect of this Agreement will
be effective unless (A) evidenced by a writing executed by each party hereto,
and (B) the Indenture Trustee has acknowledged its consent thereto in writing,
to the extent the consent of the Indenture Trustee is required under the terms
of the Indenture. Prior to or simultaneous with the execution of any such
amendment, the Trust shall also obtain a written acknowledgment from each rating
agency then rating the Notes, that their then-current rating of the Notes will
not be reduced or withdrawn as a result of the amendment.
(c) WAIVER OF SET-OFF. CSFBi hereby waives any and all right to counterclaim
or set-off under this Agreement, whether arising by contract, operation of law
or otherwise, provided that nothing herein shall be construed as limiting the
provisions contained in Sections 2(c) and 6(e) of this Agreement with respect to
the netting of the parties' respective obligations under this Agreement or the
right of the Trust to exercise any set-off right, by operation of law or
otherwise.
(d) NO BANKRUPTCY PETITION. CSFBi agrees that, prior to the date that is one
year and one day after the date upon which the Trust created under the Trust
Agreement is terminated in accordance with the terms thereof, it shall not
institute against, or join any other person in instituting against, the Trust or
SLM Funding
29
Corporation, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law.
(e) LIMITED RECOURSE TO THE TRUST. Notwithstanding anything to the contrary
contained herein including Section 5(a)(i) of this Agreement, all obligations of
the Trust shall be payable by it only to the extent it has sufficient funds in
the applicable Trust Accounts to make the scheduled payment in accordance with
Section 2.7C. of the Administration Agreement. To the extent such funds are not
available or are insufficient for the payment thereof, it shall not constitute a
claim against the Trust to the extent of such unavailability or insufficiency
until such time as the Trust has assets sufficient to pay such prior deficiency.
This paragraph shall survive the termination of this Agreement.
(f) SCOPE OF OBLIGATIONS OF THE TRUSTEE. The parties hereto agree that:
(i) This Agreement is executed and delivered by Chase Manhattan Bank
USA, National Association, not individually but solely in its capacity
as trustee and in the exercise of the powers and authority conferred and
vested in the Trustee under the Trust Agreement; and
(ii) Each of the representations, undertakings and agreements contained
in this Agreement made on the part of the Trust is made and intended not
as an individual representation, undertaking and agreement, but is made
and intended for the purposes of binding only the Trust.
(g) NO RECOURSE. The Notes represent the obligations of the Trust only. They
do not represent an interest in or obligation of CSFBi. No recourse may be had
by the holders of the Notes against CSFBi or its assets with respect to the
Notes and/or this Agreement.
(h) RESTRICTIONS ON AMENDMENTS. The Trust shall not enter into any
amendment, modification or supplement to the Indenture or any other Transaction
Document that would materially adversely affect (i) CSFBi's ability to enforce
or protect its rights or remedies under this Agreement, (ii) the ability of the
Trust to timely and fully perform its obligations under this Agreement or (iii)
any of the Trust's obligations under this Agreement or any Transaction. Any such
amendment, modification or supplement without CSFBi's prior written consent
shall not be binding on CSFBi.
(i) CONSENT TO RECORDING. Each party hereby consents to the electronic
recording of the telephone conversations of officers, employees or agents of the
parties, their Affiliates in connection with this Agreement or any Transaction
or potential Transaction and agrees that any such recordings may be submitted in
evidence in any proceeding to establish any matters pertinent to this Agreement
or any Transaction.
(j) WAIVER OF TRIAL BY JURY. Each party irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury with
respect to any legal proceeding arising out of or relating to this Agreement,
any Credit Support Document or any Transaction contemplated hereby or thereby.
Each party (i) certifies that no representative, agent or attorney of the other
party or any Credit Support Provider has represented, expressly or otherwise,
that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it
and the other party have been induced to enter into this Agreement and any
Transaction and provide for any Credit Support Document, as applicable, by,
among other things, the mutual waivers and certifications in this Section.
(k) DEFINITIONS. The definitions and provisions contained in the 2000 ISDA
Definitions, as published by the International Swaps and Derivative Association,
Inc. and the 1998 FX and Currency Option Definitions, as published by the
International Swaps and Derivatives Association, Inc., without regard to any
revision or subsequent edition thereof (collectively, the "ISDA Definitions"),
shall be incorporated into this Agreement and each Confirmation except as
provided for thereof or in the Confirmation. In the event of any
30
inconsistency between the Definitions and the Agreement or any Confirmation,
this Agreement or, as the case may be, such Confirmation shall prevail.
(l) ADDITIONAL DEFINITIONS. Unless otherwise defined in this Agreement or in
any Confirmation, the terms "ADMINISTRATION AGREEMENT", "ADMINISTRATOR",
"AVAILABLE FUNDS", "INDENTURE", "INDENTURE TRUSTEE", "SWAP TRANSACTION",
"NOTES", "RATING AGENCY", "TRUST", "TRUST ACCOUNTS" AND "AMENDED AND RESTATED
TRUST AGREEMENT" shall have the meanings ascribed to such terms in Appendix A to
that certain Amended and Restated Trust Agreement dated as of November 26, 2002
by and between
SLM Funding Corporation and Chase Manhattan Bank USA, National
Association, as the trustee, as the same may be amended, modified, restated or
replaced.
(k) REGARDING CSFBi. THE Trust acknowledges and agrees that CSFBi has had
and will have no involvement in and, accordingly CSFBi accepts no responsibility
for: (i) the establishment, structure, or choice of assets of the Trust; (ii)
the selection of any person performing services for or acting on behalf of
Trust; (iii) the selection of CSFBi as the Counterparty; (iv) the terms of the
Notes; (v) other than as specifically set forth in any prospectus supplement,
prospectus, or other agreement or document, the preparation of or passing on the
disclosure and other information contained in any offering circular for the
Notes, the Indenture, or any other agreements or documents used by the Trust or
any other party in connection with the marketing and sale of the Notes; (vi) the
ongoing operations and administration of the Trust, including the furnishing of
any information to the Trust which is not specifically required under this
Agreement; or (vii) any other aspect of Trust's existence.
PART 6. STANDBY CURRENCY SWAP PROVIDER
(a) If CSFBi fails to make, when due, any payment required to be made by it
to the Trust under a Transaction then, as soon as the Trust becomes actually
aware of that failure, the Administrator, on behalf of the Trust, shall notify
CSFBi and DLJ in writing of such failure, the amount of the defaulted payment.
(b) If DLJ receives a notice from the Adminitstrator on or before 11.00 am
(
New York time) on the relevant Payment Date, it must pay to the Trust the
amount then owing by CSFBi to the Trust under that Transaction no later than
1.30pm (
New York time) on the relevant Payment Date. If DLJ receives such notice
after 11.00 am (
New York time) on the relevant Payment Date, DLJ must make the
payment not later than 1.30 pm (
New York time) on the next Business Day.
(c) DLJ shall make such payment in full, without any set off, counterclaim
or exercise of any similar right or defence.
(d) DLJ's obligations under this Part 6 with respect to a Transaction
commence on the Effective Date (specified in the Confirmation) and terminate on
the date on which the Transaction is otherwise terminated in accordance with its
terms.
(e) If CSFBi defaults in its payment obligations and DLJ has complied with
its obligations under this Part 6, then:
(1) CSFBi's rights, powers, privileges and obligations as a
counterparty under this Agreement and each Transaction terminate
other than its rights, powers, privileges and obligations
pursuant to Part 6(f);
(2) subject to Part 6(e)(C), CSFBi will be taken to have transferred
its rights powers and privileges under this Agreement and each
Transaction to DLJ and DLJ will be taken to have assumed
obligations equivalent to those that CSFBi had under this
Agreement and each Transaction;
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(3) the Trust and DLJ will be deemed to have released CSFBi from all
its unperformed and future obligations under this Agreement and
each Transaction other than its present and future obligations
pursuant to this Part 6; and
(4) this Agreement and the Confirmation relating to each Transaction shall
be construed as if DLJ was a party to it in place of CSFBi.
(e) Following the payment of any amount hereunder by DLJ, CSFBi shall pay
DLJ or DLJ shall pay CSFBi as Party A an amount (the "Settlement Amount")
being:
(1) in the case of payment by CSFBi to DLJ, an amount equal to the
amount (if any) that would be payable by CSFBi to the Trust; and
(2) in the case of payment by DLJ to CSFBi, an amount equal to the
amount (if any) that would be payable by the Trust to CSFBi,
as if each Transaction had been terminated, calculated and payable in
accordance with Sections 6(d) and (e) of the Agreement on the basis
that:
(1) the date on which DLJ made such a payment is the Early
Termination Date and the Settlement Amount is due and payable on the day
that notice of the amount payable is effective;
(2) the Early Termination Date has resulted from an Event of Default
in respect of which CSFBi is the Defaulting Party; and
(3) the Termination Currency is U.S. Dollars.
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CREDIT SUISSE FIRST BOSTON SLM STUDENT LOAN TRUST 2002-7
INTERNATIONAL
By: Chase Manhattan Bank USA,
National Association, not in
its individual capacity but
in its capacity as Trustee
under that certain Amended
and Restated Trust Agreement
dated as of November 26, 2002
by and between the Trustee
and
SLM Funding Corporation
By:: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DE MALLERAIS By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ De Mallerais Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney Title: Vice President
Date: 11/26/2002 Date: 11/26/2002
DLJ INTERNATIONAL CAPITAL
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Person
Date: 11/26/2002
33