Exhibit 4.2
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INTERIM TRUST AGREEMENT
between
SLM FUNDING LLC,
as the Depositor
and
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as the Interim Eligible Lender Trustee
Dated as of June 1, 2004
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions and Usage............................................................1
ARTICLE II Appointment of Interim Eligible Lender Trustee..................................1
SECTION 2.1 Appointment of Interim Eligible Lender Trustee..............................1
SECTION 2.2 Declaration of Trust........................................................2
SECTION 2.3 Title to Interim Trust Loans................................................2
ARTICLE III Representations and Warranties of the Depositor................................2
ARTICLE IV Authority and Duties of Interim Eligible Lender Trustee.........................3
SECTION 4.1 General Authority...........................................................3
SECTION 4.2 General Duties..............................................................3
SECTION 4.3 No Duties Except as Specified in this Agreement.............................3
SECTION 4.4 No Action Except Under Specified Documents..................................3
SECTION 4.5 Restrictions................................................................4
ARTICLE V Concerning the Interim Eligible Lender Trustee...................................4
SECTION 5.1 Acceptance of Trust and Duties..............................................4
SECTION 5.2 Representations and Warranties..............................................4
SECTION 5.3 Not Acting in Individual Capacity...........................................5
SECTION 5.4 Interim Eligible Lender Trustee Not Liable for the Interim Trust Loans......5
ARTICLE VI Compensation of Interim Eligible Lender Trustee.................................5
ARTICLE VII Termination of Interim Trust Agreement.........................................6
ARTICLE VIII Successor Interim Eligible Lender Trustees....................................6
SECTION 8.1 Eligibility Requirements for Interim Eligible Lender Trustee................6
SECTION 8.2 Resignation or Removal of Interim Eligible Lender Trustee...................6
SECTION 8.3 Successor Interim Eligible Lender Trustee...................................7
SECTION 8.4 Merger or Consolidation of Interim Eligible Lender Trustee..................7
ARTICLE IX Miscellaneous...................................................................7
SECTION 9.1 Supplements and Amendments..................................................7
SECTION 9.2 Notices.....................................................................8
SECTION 9.3 Severability................................................................9
SECTION 9.4 Separate Counterparts.......................................................9
SECTION 9.5 Successors and Assigns......................................................9
SECTION 9.6 Headings....................................................................9
SECTION 9.7 Governing Law...............................................................9
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INTERIM TRUST AGREEMENT
INTERIM TRUST AGREEMENT (the "Agreement"), dated as of June 1, 2004,
between SLM FUNDING LLC, a Delaware limited liability company (the "Depositor"),
and CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as Interim Eligible
Lender Trustee (the "Interim Eligible Lender Trustee").
WHEREAS, the Depositor is a limited liability company established for the
purpose of purchasing Loans from the Student Loan Marketing Association among
others, including for purposes of this transaction, SLM Education Loan Corp. and
VG Funding, LLC, for immediate resale to special purpose trusts established for
the purpose of financing the purchase of such Loans;
WHEREAS, on the Closing Date, the Depositor will enter into a separate
Purchase Agreement with each of the Sellers, and a Sale Agreement with SLM
Student Loan Trust 2004-5 for the purpose of effecting the purchase and resale
of the Initial Trust Student Loans;
WHEREAS, from time to time during the Funding Period, the Depositor may
purchase Additional Trust Student Loans from one or more of the Sellers pursuant
to the applicable Purchase Agreement and the related Additional Purchase
Agreements, for immediate resale to the Trust pursuant to the terms of the Sale
Agreement and the related Additional Sale Agreements (collectively, the Initial
Trust Student Loans and the Additional Trust Student Loans are referred to
herein as the "Interim Trust Loans"); and
WHEREAS, the Interim Eligible Lender Trustee is an "eligible lender" within
the meaning of Section 435(d) of the Higher Education Act and is willing to hold
legal title to the Interim Trust Loans on behalf and for the benefit of the
Depositor.
NOW, THEREFORE, the Depositor and the Interim Eligible Lender Trustee
hereby agree as follows:
ARTICLE I
Definitions and Usage
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A-1 hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
Appointment of Interim Eligible Lender Trustee
SECTION 2.1 Appointment of Interim Eligible Lender Trustee. The Depositor
hereby appoints the Interim Eligible Lender Trustee, effective as of the date
hereof, as trustee, to
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have all the rights, powers and duties set forth herein, including, without
limitation:
a. To hold legal title to the Interim Trust Loans on behalf and for the
benefit of the Depositor;
b. To enter into and perform its obligations as the Interim Eligible
Lender Trustee under this Agreement, the Purchase Agreements and the
Sale Agreement (including any Additional Purchase Agreements and
Additional Sale Agreements entered into during the Funding Period);
and
c. To engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing
or are incidental thereto or connected therewith.
SECTION 2.2 Declaration of Trust. The Interim Eligible Lender Trustee
hereby declares that it will hold the Interim Trust Loans in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Depositor, subject to the obligations of the Interim Eligible Lender Trustee
under the Purchase Agreements and the Sale Agreement. Effective as of the date
hereof, the Interim Eligible Lender Trustee shall have all rights, powers and
duties set forth herein with respect to accomplishing the purposes of this
Agreement.
SECTION 2.3 Title to Interim Trust Loans. Legal title to all of the Interim
Trust Loans shall be vested at all times in the Interim Eligible Lender Trustee
on behalf of and for the benefit of the Depositor.
ARTICLE III
Representations and Warranties of the Depositor
The Depositor hereby represents and warrants to the Interim Eligible
Lender Trustee that:
1. It is duly organized and validly existing as a Delaware limited
liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
2. It has all necessary power and authority to execute and deliver this
Agreement and to carry out its terms; and the execution, delivery and
performance of this Agreement has been duly authorized by the
Depositor by all necessary action.
3. This Agreement constitutes a legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws
relating to creditors' rights generally and subject to general
principles of equity.
4. The consummation of the transactions contemplated by this Agreement
and the
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fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the
certificate of formation or limited liability company operating
agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than as contemplated by the Basic Documents);
nor violate any law or any order, rule or regulation applicable to the
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
ARTICLE IV
Authority and Duties of Interim Eligible Lender Trustee
SECTION 4.1 General Authority. The Interim Eligible Lender Trustee is
authorized and directed to execute and deliver the Purchase Agreements, the Sale
Agreement and this Agreement and each certificate or other document attached as
an exhibit to or contemplated by such agreements, in each case, in such form as
the Depositor shall approve as evidenced conclusively by the Interim Eligible
Lender Trustee's execution thereof. The Interim Eligible Lender Trustee is also
authorized and directed on behalf and for the benefit of the Depositor to
acquire and hold legal title to the Interim Trust Loans and to take all actions
required of the Interim Eligible Lender Trustee pursuant to the Purchase
Agreements, the Sale Agreement and this Agreement.
SECTION 4.2 General Duties. It shall be the duty of the Interim Eligible
Lender Trustee to discharge (or cause to be discharged) all its responsibilities
as the Interim Eligible Lender Trustee pursuant to the terms of the Purchase
Agreements, the Sale Agreement and this Agreement.
SECTION 4.3 No Duties Except as Specified in this Agreement. The Interim
Eligible Lender Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, service, dispose of or
otherwise deal with the Interim Trust Loans, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Interim Eligible Lender Trustee is a party, except as
expressly provided by the terms of the Purchase Agreements, the Sale Agreement
or this Agreement; and no implied duties or obligations shall be read into this
Agreement, the Purchase Agreements or the Sale Agreement against the Interim
Eligible Lender Trustee.
SECTION 4.4 No Action Except Under Specified Documents. The Interim
Eligible Lender Trustee shall not otherwise deal with the Interim Trust Loans
except in accordance with the powers granted to and the authority conferred upon
the Interim Eligible Lender Trustee pursuant to this Agreement, the Purchase
Agreements and the Sale Agreement.
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SECTION 4.5 Restrictions. The Interim Eligible Lender Trustee shall not
take any action that is inconsistent with the purposes of the Trust set forth in
the Basic Documents.
ARTICLE V
Concerning the Interim Eligible Lender Trustee
SECTION 5.1 Acceptance of Trust and Duties. The Interim Eligible Lender
Trustee accepts the trust hereby created and agrees to perform its duties
hereunder with respect to such trust but only upon the terms of this Agreement.
The Interim Eligible Lender Trustee shall not be answerable or accountable
hereunder or under the Purchase Agreements or the Sale Agreement under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 5.2 below expressly made by the Interim Eligible Lender Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
1. The Interim Eligible Lender Trustee shall not be liable for any error
of judgment made by a responsible officer of the Interim Eligible
Lender Trustee.
2. No provision of this Agreement, the Purchase Agreements or the Sale
Agreement shall require the Interim Eligible Lender Trustee to expend
or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under the
Purchase Agreements or the Sale Agreement, if the Interim Eligible
Lender Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it.
3. The Interim Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Interim
Trust Loans or for or in respect of the validity or sufficiency of the
Purchase Agreements or the Sale Agreement.
SECTION 5.2 Representations and Warranties. The Interim Eligible Lender
Trustee hereby represents and warrants to the Depositor that:
1. It is duly organized and validly existing in good standing under the
laws of its governing jurisdiction and has an office located within
the State of Delaware, at which it will act as trustee for the Trust.
It has all requisite power and authority to execute, deliver and
perform its obligations under the Purchase Agreements, the Sale
Agreement and this Agreement.
2. It has taken all action necessary to authorize the execution and
delivery by it of the Purchase Agreements, the Sale Agreement and this
Agreement, and the Purchase Agreements, the Sale Agreement and this
Agreement have been executed and delivered by one of its officers who
is duly authorized to execute
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and deliver the same on its behalf.
3. Neither the execution nor the delivery by it of the Purchase
Agreements, the Sale Agreement or this Agreement, nor the consummation
by it of the transactions contemplated thereby or hereby nor
compliance by it with any of the terms or provisions thereof or hereof
will contravene any Federal or Delaware state law, governmental rule
or regulation governing the banking or trust powers of the Interim
Eligible Lender Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is
a party or by which any of its properties may be bound.
4. It is and will maintain its status as an "eligible lender" (as such
term is defined in Section 435(d) of the Higher Education Act) for
purposes of holding legal title to the Interim Trust Loans as
contemplated by this Agreement, the Purchase Agreements and the Sale
Agreement.
SECTION 5.3 Not Acting in Individual Capacity. Except as provided in this
Article V, in accepting the trust hereby created, Chase Manhattan Bank USA,
National Association acts solely as Interim Eligible Lender Trustee hereunder
and not in its individual capacity.
SECTION 5.4 Interim Eligible Lender Trustee Not Liable for the Interim
Trust Loans. The Interim Eligible Lender Trustee makes no representations as to
the validity or sufficiency of this Agreement, the Purchase Agreements or the
Sale Agreement, or of any Interim Trust Loan or related documents. The Interim
Eligible Lender Trustee shall at no time have any responsibility for or with
respect to the sufficiency of the Interim Trust Loans; the validity or
completeness of the assignment to the Interim Eligible Lender Trustee of legal
title to any Interim Trust Loan on behalf and for the benefit of the Depositor;
the performance or enforcement (except as expressly set forth in the Purchase
Agreements or the Sale Agreement) of any Interim Trust Loan; the compliance by
the Depositor or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation or any action or inaction of the Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Interim
Eligible Lender Trustee.
ARTICLE VI
Compensation of Interim Eligible Lender Trustee
The Interim Eligible Lender Trustee shall receive as compensation for its
services hereunder such fees as have been separately agreed upon before the date
hereof between the Depositor and the Interim Eligible Lender Trustee, and the
Interim Eligible Lender Trustee shall be entitled to be reimbursed by the
Depositor, to the extent provided in such separate agreement, for its other
reasonable expenses hereunder.
ARTICLE VII
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Termination of Interim Trust Agreement
This Agreement (other than Article VI) and the trust created hereby shall
terminate and be of no further force or effect upon the earlier of (i) the
termination of the Trust pursuant to Section 9.1 of the Trust Agreement and (ii)
the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
ARTICLE VIII
Successor Interim Eligible Lender Trustees
SECTION 8.1 Eligibility Requirements for Interim Eligible Lender Trustee.
The Interim Eligible Lender Trustee shall at all times be a corporation or
banking association (i) qualifying as an "eligible lender" as such term is
defined in Section 435(d) of the Higher Education Act for purposes of holding
legal title to the Interim Trust Loans on behalf and for the benefit of the
Depositor, with a valid lender identification number with respect to the Interim
Trust Loans from the Department; and (ii) being authorized to exercise corporate
trust powers and hold legal title to the Interim Trust Loans. In case at any
time the Interim Eligible Lender Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Interim Eligible Lender
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.2.
SECTION 8.2 Resignation or Removal of Interim Eligible Lender Trustee. The
Interim Eligible Lender Trustee may at any time resign and be discharged from
the trust hereby created by giving written notice thereof to the Depositor. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor Interim Eligible Lender Trustee meeting the eligibility requirements
of Section 8.1 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Interim Eligible Lender Trustee and one copy
to the successor Interim Eligible Lender Trustee. If no successor Interim
Eligible Lender Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Interim Eligible Lender Trustee may petition any court of competent
jurisdiction for the appointment of a successor Interim Eligible Lender Trustee;
provided, however, that such right to appoint or to petition for the appointment
of any such successor shall in no event relieve the resigning Interim Eligible
Lender Trustee from any obligations otherwise imposed on it under this
Agreement, the Purchase Agreements or the Sale Agreement until such successor
has in fact assumed such appointment.
If at any time the Interim Eligible Lender Trustee shall cease to be or
shall be likely to cease to be eligible in accordance with the provisions of
Section 8.1 and shall fail to resign after written request therefor by the
Depositor, then the Depositor may remove the Interim Eligible Lender Trustee. If
the Depositor shall remove the Interim Eligible Lender Trustee under the
authority of the immediately preceding sentence, the Depositor shall promptly
appoint a successor Interim Eligible Lender Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Interim Eligible Lender Trustee so removed and
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one copy to the successor Interim Eligible Lender Trustee together with payment
of all fees owed to the outgoing Interim Eligible Lender Trustee.
Any resignation or removal of the Interim Eligible Lender Trustee and
appointment of a successor Interim Eligible Lender Trustee pursuant to any of
the provisions of this Section shall not become effective until acceptance of
appointment by the successor Interim Eligible Lender Trustee pursuant to Section
8.3 and payment of all fees and expenses owed to the outgoing Interim Eligible
Lender Trustee.
SECTION 8.3 Successor Interim Eligible Lender Trustee. Any successor
Interim Eligible Lender Trustee appointed pursuant to Section 8.2 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Interim Eligible
Lender Trustee an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Interim Eligible
Lender Trustee shall become effective and such successor Interim Eligible Lender
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Interim Eligible
Lender Trustee. The predecessor Interim Eligible Lender Trustee shall upon
payment of its fees and expenses deliver to the successor Interim Eligible
Lender Trustee all documents, statements, moneys and properties held by it under
this Agreement and shall assign, if permissible, to the successor Interim
Eligible Lender Trustee any lender identification number obtained from the
Department with respect to the Interim Trust Loans; and the Depositor and the
predecessor Interim Eligible Lender Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Interim Eligible Lender
Trustee all such rights, powers, duties and obligations.
No successor Interim Eligible Lender Trustee shall accept such appointment
as provided in this Section unless at the time of such acceptance such successor
Interim Eligible Lender Trustee shall be eligible pursuant to Section 8.1.
SECTION 8.4 Merger or Consolidation of Interim Eligible Lender Trustee. Any
corporation into which the Interim Eligible Lender Trustee may be merged or
converted or with which it may be consolidated, or any corporation or banking
association resulting from any merger, conversion or consolidation to which the
Interim Eligible Lender Trustee shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the Interim Eligible
Lender Trustee, shall, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Interim Eligible Lender
Trustee hereunder; provided that such corporation or banking association shall
be eligible pursuant to Section 8.1.
ARTICLE IX
Miscellaneous
SECTION 9.1 Supplements and Amendments. This Agreement may be amended by
the Depositor and the Interim Eligible Lender Trustee, with prior written notice
to the Rating
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Agencies, without the consent of any of the Noteholders or any Swap
Counterparty, to cure any ambiguity, to correct or supplement any provisions in
this Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Noteholder or any
Swap Counterparty.
This Agreement may also be amended from time to time by the Depositor and
the Interim Eligible Lender Trustee, with prior written notice to any Swap
Counterparty and the Rating Agencies and with the consent of the Noteholders
evidencing not less than a majority of the Outstanding Amount of the Notes, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement; provided, however, that no such
amendment shall reduce the aforesaid percentage of the Outstanding Amount of the
Notes required to consent to any such amendment, without the consent of all the
outstanding Noteholders.
This Agreement may also be amended from time to time by the Depositor and
the Interim Eligible Lender Trustee, with prior written notice to the Rating
Agencies, and, if any such amendment would adversely affect, in a material
respect, the interests of any Swap Counterparty, with the consent of that Swap
Counterparty.
Promptly after the execution of any such amendment or consent, the Interim
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of the Noteholders or any Swap
Counterparty pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof shall be subject to such
reasonable requirements as the Interim Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Interim
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement. The Interim Eligible Lender Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Interim Eligible
Lender Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 9.2 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if mailed
by certified mail, postage prepaid (except that notice to the Interim Eligible
Lender Trustee shall be deemed given only upon actual receipt by the Interim
Eligible Lender Trustee), if to the Interim Eligible Lender Trustee, addressed
to its Corporate Trust Office; if to the Depositor, addressed to SLM Funding
LLC, 11600 ▇▇▇▇▇▇ ▇▇▇ Drive, MDC V1764, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal
Department, or, as to each party, at such other address as shall be designated
by such party in a
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written notice to each other party.
SECTION 9.3 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.4 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 9.5 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon and to the benefit of, the Depositor and its
successors and the Interim Eligible Lender Trustee and its successors, all as
herein provided.
SECTION 9.6 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Interim Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as the Interim Eligible Lender
Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SLM FUNDING LLC,
as the Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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