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 November 1, 2003
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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............................................................. 3
ARTICLE V CONCERNING THE INTERIM ELIGIBLE LENDER TRUSTEE........................... 3
Section 5.1 Acceptance of Trust and Duties........................................... 3
Section 5.2 Representations and Warranties........................................... 4
Section 5.3 Not Acting in Individual Capacity........................................ 4
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................................... 5
ARTICLE VIII SUCCESSOR INTERIM ELIGIBLE LENDER TRUSTEES............................... 5
Section 8.1 Eligibility Requirements for Interim Eligible Lender Trustee............. 5
Section 8.2 Resignation or Removal of Interim Eligible Lender Trustee................ 6
Section 8.3 Successor Interim Eligible Lender Trustee................................ 6
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............................................................. 8
Section 9.4 Separate Counterparts.................................................... 8
Section 9.5 Successors and Assigns................................................... 8
Section 9.6 Headings................................................................. 8
Section 9.7 Governing Law............................................................ 9
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INTERIM TRUST AGREEMENT
INTERIM TRUST AGREEMENT (the "Agreement"), dated as of
November 1, 2003, 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, for immediate resale to special purpose trusts
established for the purpose of financing the purchase of such Loans;
WHEREAS, the Depositor has entered into the Purchase Agreement
with the Student Loan Marketing Association and the Sale Agreement with SLM
Student Loan Trust 2003-12 for the purpose of effecting such a purchase and
resale; 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 such Loans (collectively, 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 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 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 the Purchase Agreement, the Sale Agreement
and this Agreement; 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 Agreement 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 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.
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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
Agreement, 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 Agreement, 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 Agreement, 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 Agreement, the Sale
Agreement or this Agreement; and no implied duties or obligations shall be read
into this Agreement, the Purchase Agreement 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 Agreement and the Sale Agreement.
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 Agreement 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
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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
Agreement 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
Agreement 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 Agreement 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 Agreement, the Sale Agreement and this Agreement.
2. It has taken all action necessary to authorize the
execution and delivery by it of the Purchase Agreement, the Sale Agreement and
this Agreement, and the Purchase Agreement, the Sale Agreement and this
Agreement have been executed and delivered by one of its officers who is duly
authorized to execute and deliver the same on its behalf.
3. Neither the execution nor the delivery by it of the
Purchase Agreement, 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 Agreement 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
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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 Agreement 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 Agreement 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
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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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
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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 Agreement 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 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
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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 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, 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
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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, 00000 Xxxxxx Xxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention:
Legal Department, or, as to each party, at such other address as shall be
designated by such party in a 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.
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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/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM FUNDING LLC,
as the Depositor
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
