exv10w7



 















EXHIBIT 10.7











ELIGIBLE LENDER TRUST AGREEMENT




between




HIGHER EDUCATION FUNDING I




and




THE BANK OF NEW YORK,

As Eligible Lender Trustee




Dated as of January 1, 2004















 









 












TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE I.	 	 
	 
	 	DEFINITIONS AND INTENT OF THE PARTIES HERETO	 	 
	 
	 	 	 	 
	Section 1.01
	 	Definitions	 	2
	Section 1.02
	 	Intent of the Parties Hereto	 	3
	 
	 	 	 	 
	 
	 	ARTICLE II.	 	 
	 
	 	ACQUISITION OF ELIGIBLE LOANS	 	 
	 
	 	 	 	 
	Section 2.01
	 	Acquisition	 	4
	Section 2.02
	 	Revocation and Termination	 	4
	 
	 	 	 	 
	 
	 	ARTICLE III.	 	 
	 
	 	COVENANTS	 	 
	 
	 	 	 	 
	Section 3.01
	 	Administration	 	4
	Section 3.02
	 	Enforcement of the Trustee Guarantee Agreements	 	5
	Section 3.03
	 	Assignment of Eligible Loans; Collection of Payments With Respect to Eligible Loans	 	5
	Section 3.04
	 	Enforcement of Financed Eligible Loans	 	5
	Section 3.05
	 	Enforcement of Servicing Agreements	 	5
	Section 3.06
	 	Authority of Eligible Lender Trustee	 	5
	Section 3.07
	 	Power of Attorney to Issuer	 	5
	 
	 	 	 	 
	 
	 	ARTICLE IV.	 	 
	 
	 	CONCERNING THE ELIGIBLE LENDER TRUSTEE	 	 
	 
	 	 	 	 
	Section 4.01
	 	Acceptance of the Trusts	 	6
	Section 4.02
	 	Recitals of Others	 	6
	Section 4.03
	 	Taxes	 	6
	Section 4.04
	 	Eligible Lender Trustee May Act Through Agents	 	7
	Section 4.05
	 	Indemnification of Eligible Lender Trustee	 	7
	Section 4.06
	 	Eligible Lender Trustee’s Right to Reliance	 	7
	Section 4.07
	 	Compensation of Eligible Lender Trustee	 	8
	Section 4.08
	 	Eligible Lender Trustee Eligibility	 	8
	Section 4.09
	 	Resignation of Eligible Lender Trustee	 	8
	Section 4.10
	 	Removal of Eligible Lender Trustee	 	9
	Section 4.11
	 	Successor Eligible Lender Trustee	 	9
	Section 4.12
	 	Limitation with Respect to Examination of Reports	 	10
	Section 4.13
	 	Additional Covenants of Eligible Lender Trustee	 	10
	Section 4.14
	 	Authority of Eligible Lender Trustee	 	10
	Section 4.15
	 	Sale of Eligible Loans	 	11






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE V.	 	 
	 
	 	MISCELLANEOUS	 	 
	 
	 	 	 	 
	Section 5.01
	 	Eligible Lender Trust Agreement Binding upon Successors or Assigns of Eligible Lender Trustee and Issuer	 	11
	Section 5.02
	 	Effect of Legal Holidays	 	11
	Section 5.03
	 	Partial Invalidity	 	11
	Section 5.04
	 	Notices	 	11
	Section 5.05
	 	Law and Place of Enforcement of Eligible Lender Trust Agreement; Construction	 	12
	Section 5.06
	 	Effect of Article and Section Headings and Table of Contents	 	12
	Section 5.07
	 	Amendments	 	12
	Section 5.08
	 	Limitation of Liability	 	12






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ELIGIBLE LENDER TRUST AGREEMENT




     ELIGIBLE LENDER TRUST AGREEMENT dated as of January 1, 2004 (this “Eligible Lender Trust
Agreement”) entered into between HIGHER EDUCATION FUNDING I, a Delaware statutory trust (the
“Issuer”), and THE BANK OF NEW YORK, a banking corporation organized and existing under the laws of
the State of New York, as eligible lender trustee (the “Eligible Lender Trustee”):



W I T N E S S E T H:




     WHEREAS, the Issuer is conducting and administering a program of acquiring student loans
incurred under the Higher Education Act, under which it issues notes or other obligations to
finance the purchase of such Student Loans; and



     WHEREAS, certain contracts and agreements have been and will be entered into with the
Secretary of Education and the Guarantee Agencies to provide an insurance or guarantee program for
student loans incurred under the Higher Education Act; and



     WHEREAS, the Guarantee Agencies have entered into agreements with the Secretary of Education
for the payment by the Secretary of Education of amounts authorized to be paid pursuant to the
Higher Education Act, including reimbursement of certain amounts to be paid upon certain defaulted
student loans guaranteed by such Guarantee Agencies and interest subsidy payments to holders of
loans guaranteed by such Guarantee Agencies; and



     WHEREAS, upon the execution and delivery of this Eligible Lender Trust Agreement, the Eligible
Lender Trustee will become the legal owner, and the Issuer shall be the beneficial owner, of
various Financed Eligible Loans, and the Issuer will finance the acquisition of additional Eligible
Loans which will become Financed Eligible Loans for which the Eligible Lender Trustee shall be the
legal owner and the Issuer shall be the beneficial owner, all of which Financed Eligible Loans are
or will be held under the Indenture; and



     WHEREAS, the Eligible Lender Trustee, as trustee for this trust of which the Issuer is the
sole beneficiary, shall be legal owner of the Financed Eligible Loans and is an “eligible lender”
under the Higher Education Act, and the Issuer shall be the beneficial owner of such Financed
Eligible Loans;



     NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:



     That the Issuer and the Eligible Lender Trustee in consideration of the premises and of other
good and lawful consideration, the receipt of which is hereby acknowledged, and the performance and
observance of all of the covenants and conditions herein contained, have executed and delivered
this Eligible Lender Trust Agreement, and by these presents the Issuer does hereby assign,
transfer, set over and confirm unto the Eligible Lender Trustee, its successor or successors and
its or their assigns, for the benefit of the Issuer, the Trust Estate, as defined in the Indenture:



 









 





ARTICLE I.




DEFINITIONS AND INTENT OF THE PARTIES HERETO




     Section 1.01 Definitions. Unless the context shall clearly indicate some other meaning or may
otherwise require, the terms defined in this Section shall, for all purposes of this Eligible
Lender Trust Agreement and of any agreement or other instrument amendatory hereof or supplemental
hereto, have the meanings herein specified or have the meanings assigned to them in the Indenture:



     “Eligible Lender” means any “eligible lender,” as defined in the Higher Education Act, and
which has received an eligible lender designation from the Secretary of Education or from the
Guarantee Agency with respect to Eligible Loans.



     “Express Duties” means all duties of the Eligible Lender Trustee set forth herein, including,
but not limited to, instructions of the Issuer set forth in Issuer Requests, Issuer Orders, Issuer
Certificates and Issuer Consents.



     “Federal Contracts” means, collectively, any agreement between any Guarantee Agency and the
Secretary of Education providing for the payment by the Secretary of Education of amounts
authorized to be paid pursuant to the Higher Education Act, including but not necessarily limited
to reimbursement of amounts paid or payable upon defaulted Financed Eligible Loans and other
student loans guaranteed by any Guarantee Agency and federal interest subsidy payments and Special
Allowance Payments, if applicable, to holders of qualifying student loans guaranteed by any
Guarantee Agency.



     “Fiscal Year” means the fiscal year of the Issuer which presently begins January 1 of each
year and ends December 31 of the following year.



     “Higher Education Act” means Title IV, Parts B, F and G of the Higher Education Act of 1965,
as amended or supplemented from time to time, and all regulations and guidelines promulgated
thereunder.



     “Indenture” means the Indenture of Trust, dated as of January 1, 2004, between the Issuer, the
Indenture Trustee and the Eligible Lender Trustee, as it may be supplemented or amended.



     “Indenture Trustee” means The Bank of New York, in its capacity as trustee under the
Indenture, and its successors and assigns.



     “Interest Benefit Payments” means interest payments on Eligible Loans received pursuant to the
Higher Education Act and an agreement with the federal government, or any similar payments.



     “Issuer Representative” means those individuals authorized to act for the Issuer
Administrator, as set forth in a list of Authorized Officers delivered by the Issuer Administrator
to the Indenture Trustee, as such list may be amended from time to time by the Issuer
Administrator.



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     “Issuer Request,” “Issuer Order,” “Issuer Certificate” and “Issuer Consent” mean,
respectively, a written request, order, certificate or consent signed in the name of the Issuer by
an Issuer Representative and delivered to the Eligible Lender Trustee by overnight or same-day mail
or courier, facsimile, telex, telegram or other electronic means or by hand delivery.



     “Person” means any individual, corporation, partnership, joint venture, association, joint
stock corporation, trust, unincorporated organization or government or any agency or political
subdivision thereof.



     “Program” means shall mean the Issuer’s program for the purchase of Eligible Loans, as the
same may be modified from time to time.



     “Secretary of Education” means the Commissioner of Education and the Secretary of the United
States Department of Education (who succeeded to the functions of the Commissioner of Education
pursuant to the Department of Education Organization Act), or any successor to the functions
thereof under the Higher Education Act.



     “Servicer” shall have the meaning assigned to such term in the Indenture.



     “Servicing Agreement” shall have the meaning assigned to such term in the Indenture.



     “Special Allowance Payments” shall have the meaning assigned to such term in the Indenture.



     “State” means the State of New York.



     “Student Loan Acquisition Account” means the Account established pursuant to Section 2.02
hereof.



     “Trustee Guarantee Agreement” means the Eligible Lender Trustee’s Guarantee Agreement with
each Guarantee Agency with respect to the Financed Eligible Loans.



     Section 1.02 Intent of the Parties Hereto. This Eligible Lender Trust Agreement and all
documents, agreements, understandings and arrangements relating to this Eligible Lender Trust
Agreement which are executed by the Eligible Lender Trustee have been executed by the Eligible
Lender Trustee solely for the purpose of having the legal title to the Financed Eligible Loans held
by an “eligible lender” under the Higher Education Act, and the Issuer hereby agrees that the
Eligible Lender Trustee shall be accorded appropriate protection for its limited role herein
pursuant to the indemnity herein and that the Eligible Lender Trustee (its officers, directors,
employees and agents) shall not have any liability thereunder or hereunder except as expressly set
forth herein, including, without limitation, liability which may be incurred as a result of actions
or inactions of the Issuer and any Servicer, subject to the terms of applicable laws, rules and
regulations. The Issuer agrees that it will not seek recourse or commence any action against the
Eligible Lender Trustee (or its officers, directors, employees or agents) or any of their personal
assets for the performance or payment of any obligation thereunder or hereunder; provided that the
Eligible Lender Trustee shall be liable for its negligence and willful misconduct in the
performance of its Express Duties hereunder. The parties hereto intend that this Eligible Lender
Trust Agreement is for their benefit only and not for the benefit of any third



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party, except that the Issuer shall assign its interest in this Eligible Lender Trust
Agreement to the Indenture Trustee pursuant to the Indenture. The parties hereto agree that each
and every provision of this Eligible Lender Trust Agreement is subject to this paragraph.




ARTICLE II.




ACQUISITION OF ELIGIBLE LOANS




     Section 2.01 Acquisition. The Eligible Lender Trustee shall, from time to time, acquire
Eligible Loans upon receipt of an Issuer Request with funds provided to the Eligible Lender Trustee
pursuant to the Indenture. Such Issuer Request shall contain a certification that the loans to be
acquired are Eligible Loans under the Indenture from which such funds are obtained, shall identify
such loans, and shall be in the form attached as Exhibits A, B and C to the Indenture. The
Eligible Lender Trustee will hold legal title to such Financed Eligible Loans in trust hereunder
for the sole benefit of the Issuer, but such interest of the Issuer (and the Eligible Lender
Trustee’s legal interest therein) have and will be assigned to the Indenture Trustee under the
Indenture. The Issuer shall direct the Eligible Lender Trustee to acquire only Eligible Loans that
are Guaranteed by a Guarantee Agency with respect to which the Eligible Lender Trustee has entered
into a Trustee Guarantee Agreement. The Eligible Lender Trustee shall, to the extent it has such
knowledge within its corporate trust department, notify the Issuer with respect to rejections and
repurchases of such Financed Eligible Loans.



     Section 2.02 Revocation and Termination. Subject to Section 4.10 hereof, the Issuer may, by
Issuer Order delivered to the Eligible Lender Trustee, revoke this Eligible Lender Trust Agreement
in whole or in part. Upon receipt of such Issuer Order, the Eligible Lender Trustee shall transfer
to the order of the Issuer all amounts held hereunder, and the trust created hereby shall thereupon
terminate (except that the obligations of the Issuer under Section 4.05 hereof shall survive such
termination).



ARTICLE III.




COVENANTS




     Section 3.01 Administration. The Issuer shall cause the Trust Estate to be administered so as
to allow the Eligible Lender Trustee to obtain the benefits of the Trustee Guarantee Agreements and
Federal Contracts and the right to receive Interest Benefit Payments and Special Allowance Payments
with respect to Financed Eligible Loans. The Eligible Lender Trustee shall have no liability for
actions taken at the direction of the Issuer. The Eligible Lender Trustee shall have no liability
for any action or inaction hereunder, except for its negligence or willful misconduct in the
performance of its Express Duties hereunder. The Eligible Lender Trustee shall not be responsible
for any action or inaction of the Issuer or any Servicer under this Eligible Lender Trust
Agreement. Except as specifically set forth herein, the Eligible Lender Trustee shall have no
obligation to administer, service or collect the Financed Eligible Loans or to maintain or monitor
the administration, servicing or collection of the Financed Eligible Loans.



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     Section 3.02 Enforcement of the Trustee Guarantee Agreements. The Issuer will be responsible
for dealing with the Guarantee Agencies with respect to the rights, benefits and obligations under
Trustee Guarantee Agreements as they relate to Financed Eligible Loans.



     Section 3.03 Assignment of Eligible Loans; Collection of Payments With Respect to Eligible
Loans. The Issuer shall diligently or cause a Servicer to diligently make every effort to make
claim for and to collect all principal and interest payments on all the Financed Eligible Loans,
all grants, subsidies, donations, insurance payments, Interest Benefit Payments and Special
Allowance Payments relating to Financed Eligible Loans and all Guarantee payments on defaulted
Financed Eligible Loans as required under the Indenture with respect to Financed Eligible Loans.
The Issuer shall cause the Servicer to assign such Financed Eligible Loans for payment of Guarantee
benefits at the earliest practicable date permitted under applicable law and regulations. The
Issuer will comply with all statutes, rules and regulations which apply to its Program and to the
Financed Eligible Loans.



     The Issuer shall take all reasonable actions within its power to cause the Secretary of
Education to make all Interest Benefit Payments and Special Allowance Payments with respect to the
Financed Eligible Loans, all payments to be made with respect to the Financed Eligible Loans by the
obligors thereof and all payments to be made under Guarantees of Financed Eligible Loans.



     Section 3.04 Enforcement of Financed Eligible Loans. The Issuer shall cause to be diligently
enforced, and shall cause to be taken all reasonable steps, actions and proceedings necessary or
appropriate for the enforcement of all terms, covenants and conditions of all Financed Eligible
Loans and agreements in connection therewith, including the prompt payment of all principal and
interest payments and all other amounts due thereunder, as provided in the Indenture.



     Section 3.05 Enforcement of Servicing Agreements. The Issuer shall cause to be diligently
enforced, and shall cause to be taken all reasonable steps, actions and proceedings necessary or
appropriate for the enforcement of all terms, covenants and conditions of all Servicing Agreements,
including the prompt payment of all principal and interest payments and all other amounts due
thereunder, including all grants, subsidies, donations, insurance payments, Interest Benefit
Payments and Special Allowance Payments on Financed Eligible Loans, and all Guarantee payments on
defaulted Financed Eligible Loans, as provided in the Indenture.



     Section 3.06 Authority of Eligible Lender Trustee. Notwithstanding anything herein, the
Eligible Lender Trustee has any and all power, right and authority, where permitted by law and
regulation, to realize on any Guarantee of the Financed Eligible Loans under the Trustee Guarantee
Agreement.



     Section 3.07 Power of Attorney to Issuer. The Eligible Lender Trustee hereby does make,
constitute and appoint the Issuer as its true and lawful agent and attorney for it and in its name,
place and stead, from time to time, at all times until this Eligible Lender Trust Agreement is
terminated, to exercise and enforce the rights of the Eligible Lender Trustee to make claim for and
collect all payments due on Financed Eligible Loans pursuant to Section 3.03 hereof



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(provided that such payments in respect of collections, go to the Indenture Trustee) and the
Issuer does hereby accept such appointment to exercise and enforce such rights.




ARTICLE IV.




CONCERNING THE ELIGIBLE LENDER TRUSTEE




     Section 4.01 Acceptance of the Trusts. The Issuer hereby appoints the Eligible Lender Trustee
to act as its “eligible lender trustee” to hold legal title to the Financed Eligible Loans pursuant
to the Higher Education Act, the Indenture and this Eligible Lender Trust Agreement. The Eligible
Lender Trustee shall hold legal title to the Financed Eligible Loans, for the benefit of the
Issuer, subject to the pledge of the Indenture, pursuant to the Higher Education Act, the Indenture
and this Eligible Lender Trust Agreement. The Eligible Lender Trustee hereby accepts the trusts
granted to it by this Eligible Lender Trust Agreement and agrees to perform said trusts, but only
upon and subject to the following express terms and conditions:




     (a) The Eligible Lender Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Eligible Lender Trust Agreement, and no implied
covenants or obligations shall be read into this Eligible Lender Trust Agreement against the
Eligible Lender Trustee.




     (b) In the absence of bad faith on its part, the Eligible Lender Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Eligible Lender Trustee
and conforming to the requirements of this Eligible Lender Trust Agreement; but in the case
of any such certificates or opinions which by any provisions hereof are specifically
required to be furnished to the Eligible Lender Trustee, the Eligible Lender Trustee shall
be under a duty to examine the same to determine whether or not they conform as to form with
the requirements of this Eligible Lender Trust Agreement and whether or not they contain the
statements required under this Eligible Lender Trust Agreement.




     (c) The Eligible Lender Trustee, in exercising the rights and powers vested in it by
this Eligible Lender Trust Agreement, shall use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.



     Section 4.02 Recitals of Others. The recitals, statements, and representations of the Issuer
set forth herein shall be taken as the statements of the Issuer, and the Eligible Lender Trustee
assumes no responsibility for the correctness of the same or for inquiring with respect thereto.
The Eligible Lender Trustee makes no representations as to the title of the Issuer in Financed
Eligible Loans, and the Eligible Lender Trustee shall incur no responsibility in respect of such
matters.



     Section 4.03 Taxes. The Eligible Lender Trustee shall not be liable for failure of the Issuer
to pay any tax or taxes in respect of any property, or any part thereof, or the income therefrom or
otherwise, nor shall the Eligible Lender Trustee be under any duty in respect of any tax which may
be assessed against it in respect of such property or the Financed Eligible Loans.



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     Section 4.04 Eligible Lender Trustee May Act Through Agents. The Eligible Lender Trustee may
execute any of the trusts or powers hereof and perform any duty hereunder, either itself or by or
through its attorneys, agents, or employees, and it shall not be answerable or accountable for any
default, neglect, or misconduct of any such attorneys, agents, or employees, if reasonable care has
been exercised in the appointment, supervision, and monitoring of the work performed.



     Section 4.05 Indemnification of Eligible Lender Trustee. The Issuer agrees to indemnify the
Eligible Lender Trustee for, and to hold it harmless against, any loss, liability, or expenses
incurred without negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Eligible Lender Trust Agreement (including without limitation
any such losses, liability or expenses arising from a breach of a Lender representation, warranty
or covenant in any Servicing Agreement or Trustee Guarantee Agreement), including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.



     Such indemnification by the Issuer shall survive the termination of this Eligible Lender Trust
Agreement and/or the resignation or removal of the Eligible Lender Trustee and shall include,
without limitation, any loss, liability, expense or advance incurred or made by the Eligible Lender
Trustee as a result of the acts or omissions of the Issuer or any servicer in the origination or
servicing of any of the Eligible Loans.



     Section 4.06 Eligible Lender Trustee’s Right to Reliance. The Eligible Lender Trustee shall
be protected in acting upon any notice, resolution, request, consent, order, certificate, report,
appraisal, opinion, or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties. The Eligible Lender Trustee may, whenever it
determines in good faith that it must seek further determination or interpretation of any matters
hereunder, consult with experts and with counsel (who may be counsel for the Issuer, the Indenture
Trustee or the Eligible Lender Trustee), and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered, and in respect of any
determination made by it hereunder in good faith and in accordance with the opinion of such
counsel.



     Whenever in the administration hereof the Eligible Lender Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the
Eligible Lender Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a certificate signed by an Issuer Representative;
provided, however, that the Eligible Lender Trustee may not delay any action required hereunder
because the Eligible Lender Trustee has failed to receive such certificate.



     The Eligible Lender Trustee shall not be liable for any action taken, suffered, or omitted by
it in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it hereby; provided, however, that the Eligible Lender Trustee shall be liable for
its negligence or willful misconduct in taking such action.



     The Eligible Lender Trustee is authorized to sell, assign, transfer, convey or repurchase
Eligible Loans in accordance with this Eligible Lender Trust Agreement and the Indenture,



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provided that no such Eligible Loan may be sold, assigned, transferred, or conveyed to any
Person who is not an “eligible lender” under the Higher Education Act. The Eligible Lender Trustee
is further authorized to enter into agreements with other Persons, in its capacity as Eligible
Lender Trustee, in order to carry out or implement the terms and provisions of this Eligible Lender
Trust Agreement.




     Section 4.07 Compensation of Eligible Lender Trustee. The Issuer shall pay to the Eligible
Lender Trustee from time to time reasonable compensation for all services, reasonable expenses
(including Counsel fees), charges and other disbursements incurred in and about the administration
and execution of this Eligible Lender Trust Agreement. The Eligible Lender Trustee may not change
the amount of its annual compensation with respect to this Eligible Lender Trust Agreement without
giving the Issuer at least 90 days’ written notice prior to the beginning of a Fiscal Year.



     Section 4.08 Eligible Lender Trustee Eligibility.




     (a) There shall at all times be an Eligible Lender Trustee hereunder which shall be a
corporation or national bank association organized and doing business under the laws of the
United States of America or of any state thereof, authorized under such laws to exercise
corporate trust powers and shall be an Eligible Lender under the Higher Education Act and
the regulations of any Guarantee Agency and acceptable to the Issuer.




     (b) The Eligible Lender Trustee, by the execution hereof, covenants, represents and
agrees that:




     (1) it is an Eligible Lender as defined in the Higher Education Act and has
received an Eligible Lender designation and that it will remain an Eligible Lender;




     (2) it shall use eligible lender number 834117, which shall be the Eligible
Lender Trustee’s eligible lender number for Financed Eligible Loans which it owns as
legal owner for the Issuer as beneficial owner hereunder; and




     (3) it shall be responsible for the preservation of the supporting documents
submitted to and received by it relating to Financed Eligible Loans, if any;
provided, however, that the separate Servicer of the Financed Eligible Loans shall
be responsible for such preservation of the Financed Eligible Loans and supporting
documents in accordance with the Custodian Agreements to the extent and during the
period that the Servicer holds such documents.




     (c) The parties hereto recognize that the Eligible Lender Trustee has contractual
obligations with the Guarantee Agency which must be maintained and preserved in order for
the Eligible Lender Trustee to remain as Eligible Lender Trustee, and the Eligible Lender
Trustee agrees to maintain the same.



     Section 4.09 Resignation of Eligible Lender Trustee. The Eligible Lender Trustee and any
successor to the Eligible Lender Trustee may resign and be discharged from the trust created by
this Eligible Lender Trust Agreement by giving to the Issuer notice in writing which



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notice shall specify the date on which such resignation is to take effect; provided, however,
that such resignation shall only take effect on the day specified in such notice if a successor
Eligible Lender Trustee shall have been appointed pursuant to Section 4.11 hereof (and is qualified
to be the Eligible Lender Trustee under the requirements of Section 4.11 hereof). If no successor
Eligible Lender Trustee has been appointed by the date specified or within a period of 90 days from
the receipt of the notice by the Issuer, the Eligible Lender Trustee may (a) appoint a temporary
successor Eligible Lender Trustee having the qualifications provided in Section 4.11 hereof or (b)
request a court of competent jurisdiction to (i) require the Issuer to appoint a successor, as
provided in Section 4.11 hereof, within three days of the receipt of citation or notice by the
court, or (ii) appoint an Eligible Lender Trustee having the qualifications provided in Section
4.11 hereof. In no event may the resignation of the Eligible Lender Trustee be effective until a
qualified successor Eligible Lender Trustee shall have been selected and appointed. In the event a
temporary successor Eligible Lender Trustee is appointed pursuant to clause (a) above, the Issuer
may remove such temporary successor Eligible Lender Trustee and appoint a successor thereto
pursuant to Section 4.11 hereof.




     Section 4.10 Removal of Eligible Lender Trustee. The Eligible Lender Trustee or any successor
Eligible Lender Trustee may be removed at any time by the Issuer upon payment to the Eligible
Lender Trustee so removed of all money then due to it hereunder and appointment of a successor
thereto by the Issuer and acceptance thereof by said successor. In the event an Eligible Lender
Trustee (or successor Eligible Lender Trustee) is removed such removal shall not become effective
until the Issuer shall have appointed a successor and the successor Eligible Lender Trustee has
accepted appointment as such.



     Section 4.11 Successor Eligible Lender Trustee.




     (a) Any bank, corporation or other entity into which the Eligible Lender Trustee may be
merged or converted or with which it may be consolidated, and any bank, corporation or other
entity resulting from any merger, conversion or consolidation to which the Eligible Lender
Trustee shall be a party, shall be the Eligible Lender Trustee under this Eligible Lender
Trust Agreement without any further act, provided the resulting bank, corporation or other
entity at all times meets the qualifications set forth herein.




     (b) In case at any time the Eligible Lender Trustee or any successor Eligible Lender
Trustee shall resign, be dissolved, or otherwise shall be disqualified to act or be
incapable of acting, or in case control of the Eligible Lender Trustee or of any successor
Eligible Lender Trustee or of its officers shall be taken over by any public officer or
officers, a successor Eligible Lender Trustee may be appointed by the Issuer by an
instrument in writing.




     (c) Every successor Eligible Lender Trustee shall be a bank or trust company in good
standing, organized and doing business under the laws of the United States or of a state
therein, which has a reported capital and surplus of not less than $20,000,000, be
authorized under the law to exercise corporate trust powers, be subject to supervision or
examination by a federal or state agency, and be an Eligible Lender.



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     Section 4.12 Limitation with Respect to Examination of Reports. Except as expressly provided
in this Eligible Lender Trust Agreement, the Eligible Lender Trustee shall be under no duty to
examine any report or statement or other document required or permitted to be filed with it by the
Issuer.



     Section 4.13 Additional Covenants of Eligible Lender Trustee. The Eligible Lender Trustee, by
the execution hereof, covenants, represents and agrees that:




     (a) this Eligible Lender Trust Agreement and all documents, agreements, understandings
and arrangements relating to this Eligible Lender Trust Agreement which are executed by the
Eligible Lender Trustee have been executed by the Eligible Lender Trustee solely for the
purpose of having the legal title to the Financed Eligible Loans held by an “eligible
lender” under the Higher Education Act, and the Issuer hereby agrees that the Eligible
Lender Trustee shall be accorded the protection set forth in Section 4.05 hereof for its
limited role herein pursuant to the indemnity herein and that the Eligible Lender Trustee
(its officers, directors, employees and agents) shall not have any liability thereunder or
hereunder except as expressly set forth herein, including, without limitation, liability
which may be incurred as a result of actions or inactions of the Issuer or the Servicer of
the Financed Eligible Loans, subject to the terms of applicable laws, rules and regulations;




     (b) it will comply with the Higher Education Act and the regulations promulgated
thereunder and will, upon written notice from the Issuer, the Secretary of Education, or the
Guarantee Agency, use its reasonable efforts to cause this Eligible Lender Trust Agreement
to be amended if the Higher Education Act or regulations promulgated thereunder are
hereafter amended so as to be contrary to the terms of this Eligible Lender Trust Agreement;




     (c) it will, from and after it shall have either entered into, or succeeded to the
rights and interests of any Eligible Lender under any Guarantee Agreement covering Financed
Eligible Loans, maintain the same and diligently enforce its rights thereunder, and not
consent to or permit any rescission of or consent to any amendment thereto or otherwise take
any action under or in connection therewith which in any manner would adversely affect the
rights of the Issuer or the parties secured by the Indenture; and




     (d) notwithstanding any other provision of this Eligible Lender Trust Agreement or
other documents pertaining to the Notes or the Financed Eligible Loans, nothing herein or
therein shall be construed to limit the responsibility of the Eligible Lender Trustee to the
Secretary of Education or a Guarantee Agency as required under, or to comply with its
obligations under, the Higher Education Act and the regulations promulgated thereunder.



     Section 4.14 Authority of Eligible Lender Trustee. Notwithstanding anything herein, the
Eligible Lender Trustee has any and all power, right and authority, where permitted by law and
regulation, to realize on any Guarantee Agreement with respect to any Financed Eligible Loan.



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     Section 4.15 Sale of Eligible Loans. At the written direction of the Issuer (so long as the
Issuer certifies no Event of Default exists under the Indenture), or if an Event of Default exists
under the Indenture as directed by the Indenture Trustee, the Eligible Lender Trustee shall sell
Financed Eligible Loans to designated purchasers. The Issuer covenants that in the event it
intends to direct the sale of Financed Eligible Loans, it shall give written notice thereof to the
Eligible Lender Trustee not later than five Business Days prior to the proposed sale. The Financed
Eligible Loans shall not be sold to any Person unless such Person is an Eligible Lender.



ARTICLE V.




MISCELLANEOUS




     Section 5.01 Eligible Lender Trust Agreement Binding upon Successors or Assigns of Eligible
Lender Trustee and Issuer. All the terms, provisions, conditions, covenants, warranties and
agreements contained in this Eligible Lender Trust Agreement shall be binding upon the successors
and assigns of the Issuer and the Eligible Lender Trustee, and shall inure to the benefit of the
Eligible Lender Trustee and its successor and assigns and the Issuer, its successors or substitutes
in trust and assigns. The Eligible Lender Trustee acknowledges that the Issuer may assign its
beneficial rights hereunder in financed eligible loans and payments related thereto to the
Indenture Trustee without consent of the Eligible Lender Trustee.



     Section 5.02 Effect of Legal Holidays. Whenever this Eligible Lender Trust Agreement requires
any action to be taken on a day which is not a Business Day, such action shall be taken on the next
succeeding Business Day with the same force and effect as if taken on such day.



     Section 5.03 Partial Invalidity. If any one or more of the covenants or agreements or portion
thereof provided in this Eligible Lender Trust Agreement on the part of the Issuer or the Eligible
Lender Trustee to be performed should be determined by a court of competent jurisdiction to be
contrary to law, then such covenant or covenants, or such agreement or agreements, or such portions
thereof, shall be deemed severable from the remaining covenants and agreements provided in this
Eligible Lender Trust Agreement and the invalidity thereof shall in no way affect the validity of
the other provisions of this Eligible Lender Trust Agreement hereunder and under any applicable
provisions of law.



     Section 5.04 Notices. Except as otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including facsimile communication) and
mailed or delivered or sent by facsimile, if to the Eligible Lender Trustee, at the corporate trust
office of the Eligible Lender Trustee in Jacksonville, Florida which at the date of this Eligible
Lender Trust Agreement is located at 10161 Centurion Parkway, 2nd Floor, Jacksonville,
Florida 32256, Attention: Corporate Trust Department (telephone (904) 998-4706, facsimile (904)
645-1931), or at such other address as may have been filed in writing by the Eligible Lender
Trustee; if to the Issuer, to c/o CLF Administration Company, LLC, 9477 Waples Street, Suite 100,
San Diego, California 92121, Attention: Ryan Katz (telephone (877) 727-6888; facsimile (858)
909-0284), or to the Issuer at such other address as may have been filed in writing by the Issuer.
All such notices and communications shall be effective (a) if given by facsimile, when transmitted,
(b) if given by mail, when deposited in the mail addressed as



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aforesaid, and (c) if given by other means, when delivered at the address specified as
aforesaid. Any notice required to be given in writing shall be deemed to be in writing if given by
telex, facsimile or other method which produces a written record.




     Section 5.05 Law and Place of Enforcement of Eligible Lender Trust Agreement; Construction.
This Eligible Lender Trust Agreement shall be construed and interpreted in accordance with the laws
of the State of New York.



     Section 5.06 Effect of Article and Section Headings and Table of Contents. The heading or
titles of the several Articles and Sections hereof, and any table of contents appended hereto,
shall be solely for convenience of reference and shall not affect the meaning or construction,
interpretation or effect of this Eligible Lender Trust Agreement.



     Section 5.07 Amendments. The Issuer and the Eligible Lender Trustee, from time to time, may
amend this Eligible Lender Trust Agreement subject to any provisions to the contrary herein.



     Section 5.08 Limitation of Liability. It is expressly understood and agreed by the parties
hereto that (a) this Eligible Lender Trust Agreement is executed and delivered by The Bank of New
York (Delaware), not individually or personally but solely as Delaware Trustee of the Issuer, in
the exercise of the powers and authority conferred and vested in it; (b) each of the
representations, undertakings and agreement herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by The Bank of New York
(Delaware) but is made and intended for the purpose of binding only the Issuer; (c) nothing herein
contained shall be construed as creating any liability on The Bank of New York (Delaware),
individually or personally, to perform any covenant either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto; and (d) under no circumstances shall The Bank of New York
(Delaware) be personally liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligations, representation, warranty or covenant made or
undertaken by the Issuer under this Eligible Lender Trust Agreement.



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     IN WITNESS WHEREOF, HIGHER EDUCATION FUNDING I has caused this Eligible Lender Trust Agreement
to be signed in its name and on its behalf by the Delaware Trustee and THE BANK OF NEW YORK, to
evidence its acceptance of the trusts hereby created, and has caused this Eligible Lender Trust
Agreement to be signed in its name and on its behalf by one of its officers thereunto duly
authorized.



	 	 	 	 	 	 	 
	 	 	HIGHER EDUCATION FUNDING I
	 
	 	 	 	 	 	 
	

	 	By:
	 	THE BANK OF NEW YORK (DELAWARE),	 	 
	

	 	 	 	not in its individual capacity but solely as	 	 
	

	 	 	 	Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	

	 	By
	 	 /s/ William T. Lewis

	 	 
	

	 	Name
	 	 William T. Lewis

	 	 
	

	 	Title
	 	Senior Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Eligible Lender Trustee
	 
	 	 	 	 	 	 
	

	 	By
	 	 /s/ Craig S. Wenzler

	 	 
	

	 	Name
	 	Craig S. Wenzler	 	 
	

	 	Title
	 	Assistant Vice President	 	 







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