Exhibit 10.3






Exhibit 10.3



 




ELIGIBLE LENDER TRUST AGREEMENT




between




NELNET SUPERCONDUIT FUNDING, LLC,

as the Funding Note Issuer




and




ZIONS FIRST NATIONAL BANK,

not in its individual capacity but solely as the

Eligible Lender Trustee




Dated as of May 13, 2009





 




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND USAGE
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II APPOINTMENT OF ELIGIBLE LENDER TRUSTEE
	 	 	1	 
	 
	 	 	 	 
	Section 2.01. Appointment of Eligible Lender Trustee
	 	 	1	 
	 
	 	 	 	 
	Section 2.02. Declaration of Trust
	 	 	2	 
	 
	 	 	 	 
	Section 2.03. Title to Financed Student Loans
	 	 	2	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE FUNDING NOTE ISSUER
	 	 	2	 
	 
	 	 	 	 
	ARTICLE IV AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
	 	 	3	 
	 
	 	 	 	 
	Section 4.01. General Authority
	 	 	3	 
	 
	 	 	 	 
	Section 4.02. General Duties
	 	 	3	 
	 
	 	 	 	 
	Section 4.03. No Duties Except as Specified in this Agreement
	 	 	3	 
	 
	 	 	 	 
	Section 4.04. No Action Except Under Specified Documents
	 	 	3	 
	 
	 	 	 	 
	Section 4.05. Restrictions
	 	 	3	 
	 
	 	 	 	 
	ARTICLE V CONCERNING THE ELIGIBLE LENDER TRUSTEE
	 	 	3	 
	 
	 	 	 	 
	Section 5.01. Acceptance of Trust and Duties
	 	 	3	 
	 
	 	 	 	 
	Section 5.02. Representations and Warranties
	 	 	4	 
	 
	 	 	 	 
	Section 5.03. Not Acting in Individual Capacity
	 	 	5	 
	 
	 	 	 	 
	Section 5.04. Eligible Lender Trustee Not Liable for the Financed Student Loans
	 	 	5	 
	 
	 	 	 	 
	ARTICLE VI COMPENSATION AND INDEMNIFICATION OF ELIGIBLE LENDER TRUSTEE
	 	 	5	 
	 
	 	 	 	 
	Section 6.01. Fees
	 	 	5	 
	 
	 	 	 	 
	Section 6.02. Indemnity
	 	 	5	 
	 
	 	 	 	 
	Section 6.03. Survival
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VII TERMINATION OF FUNDING NOTE ISSUER ELIGIBLE LENDER TRUST AGREEMENT
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VIII SUCCESSOR ELIGIBLE LENDER TRUSTEES
	 	 	6	 
	 
	 	 	 	 
	Section 8.01. Eligibility Requirements for Eligible Lender Trustee
	 	 	6	 
	 
	 	 	 	 
	Section 8.02. Resignation or Removal of Eligible Lender Trustee
	 	 	6	 
	 
	 	 	 	 
	Section 8.03. Successor Eligible Lender Trustee
	 	 	7	 
	 
	 	 	 	 
	Section 8.04. Merger or Consolidation of Eligible Lender Trustee
	 	 	7	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	7	 
	 
	 	 	 	 
	Section 9.01. Amendments and Waivers
	 	 	7	 
	 
	 	 	 	 
	Section 9.02. Notices
	 	 	7	 






 


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	 	 	Page	 
	 
	 	 	 	 
	Section 9.03. No Waivers; Remedies
	 	 	8	 
	 
	 	 	 	 
	Section 9.04. Successors and Assigns
	 	 	8	 
	 
	 	 	 	 
	Section 9.05. Governing Law
	 	 	8	 
	 
	 	 	 	 
	Section 9.06. Severability
	 	 	8	 
	 
	 	 	 	 
	Section 9.07. Waiver of Jury Trial
	 	 	8	 
	 
	 	 	 	 
	Section 9.08. Bankruptcy Non-Petition and Limited Recourse
	 	 	8	 
	 
	 	 	 	 
	Section 9.09. Execution in Counterparts
	 	 	9	 
	 
	 	 	 	 
	Section 9.10. Entire Agreement
	 	 	9	 
	 
	 	 	 	 
	Section 9.11. Limitation of Liability
	 	 	9	 
	 
	 	 	 	 
	Section 9.12. Section Titles
	 	 	9	 
	 
	 	 	 	 
	Section 9.13. Limitations on Rights of Others
	 	 	9	 
	 
	 	 	 	 
	Section 9.14. Acknowledgement and Agreement
	 	 	9	 
	 
	 	 	 	 
	Section 9.15. Force Majeure
	 	 	10	 
	 
	 	 	 	 
	Section 9.16. Survival
	 	 	10	 
	 
	 	 	 	 





 


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ELIGIBLE LENDER TRUST AGREEMENT




ELIGIBLE LENDER TRUST AGREEMENT (the “Agreement”), dated as of May 13, 2009 between NELNET
SUPER CONDUIT FUNDING, LLC, a Delaware limited liability company (the “Funding Note Issuer”), and
ZIONS FIRST NATIONAL BANK, a national banking association, not in its individual capacity but
solely as eligible lender trustee on behalf and for the benefit of the Funding Note Issuer (the
“Eligible Lender Trustee”).



WHEREAS, the Funding Note Issuer is a limited liability company established for the purpose of
purchasing certain Eligible Loans from National Education Loan Network, Inc. or its subsidiaries or
affiliates and will fund such purchases in part through the issuance and sale of a Funding Note to
the Conduit Lender;



WHEREAS, on the date hereof, the Funding Note Issuer will enter into (i) a Student Loan
Purchase Agreement with National Education Loan Network, Inc., a Nevada corporation (the “Seller”),
(ii) various Servicing Agreements with the applicable Servicers, and (iii) the Funding Note
Purchase Agreement (as defined below), for the purpose of effecting the purchase, servicing and
pledge, as applicable, of certain Eligible Loans (the “Financed Student Loans”);



WHEREAS, the Funding Note Issuer desires that the Financed Student Loans be held by an
“eligible lender” within the meaning of Section 435(d) of the Higher Education Act; and



WHEREAS, the 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
Financed Student Loans on behalf and for the benefit of the Funding Note Issuer (which is not an
“eligible lender”) according to the terms and conditions set forth herein.



NOW, THEREFORE, for and in consideration of the promises and of the mutual covenants contained
herein, and for other valuable consideration, the receipt of which is hereby acknowledged, the
Funding Note Issuer and the 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 the Funding Note Purchase Agreement,
dated as of May 13, 2009, among the Funding Note Issuer, the Eligible Lender Trustee, Straight-A
Funding, LLC, as Conduit Lender, The Bank of New York Mellon, as Conduit Administrator, Securities
Intermediary and Conduit Lender Eligible Lender Trustee, National Education Loan Network, Inc., as
SPV Administrator, Nelnet, Inc., as Sponsor, BMO Capital Markets Corp., as Manager, and National
Education Loan Network, Inc., as Master Servicer (as amended, restated, supplemented or otherwise
modified from time to time, the “Funding Note Purchase Agreement”), which also contains rules as to
usage that shall be applicable herein.



ARTICLE II




APPOINTMENT OF ELIGIBLE LENDER TRUSTEE




Section 2.01. Appointment of Eligible Lender Trustee. The Funding Note Issuer hereby
appoints the 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:




(i) to hold legal title to the Financed Student Loans on behalf of and for the benefit
of the Funding Note Issuer;


 


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(ii) to the extent it is a party thereto, enter into and perform its obligations as the
Eligible Lender Trustee under the Funding Note Purchase Agreement, the Student Loan Purchase
Agreement, all Servicing Agreements, the Department Put Agreement and this Agreement; and




(iii) 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 2.02. Declaration of Trust. The Eligible Lender Trustee hereby declares that it will
hold the Financed Student Loans in trust upon and subject to the conditions set forth herein for
the use and benefit of the Funding Note Issuer, subject to the obligations of the Eligible Lender
Trustee under the Funding Note Purchase Agreement, the Student Loan Purchase Agreement, the
Department Put Agreement and any Servicing Agreement to which it is a party. Effective as of the
date hereof, the Eligible Lender Trustee shall have all rights, powers and duties set forth herein
with respect to accomplishing the purposes of this Agreement.



Section 2.03. Title to Financed Student Loans. Legal title to all of the Financed Student
Loans shall be vested at all times during the term of this Agreement in the Eligible Lender Trustee
on behalf and for the benefit of the Funding Note Issuer.



ARTICLE III




REPRESENTATIONS AND WARRANTIES OF THE FUNDING NOTE ISSUER





The Funding Note Issuer hereby represents and warrants to the Eligible Lender Trustee that:




(i) 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.




(ii) 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 Funding Note Issuer by all necessary action.




(iii) This Agreement constitutes a legal, valid and binding obligation of the Funding
Note Issuer 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.




(iv) 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,
in effect as of the date hereof, of the Funding Note Issuer, or any indenture, agreement or
other instrument to which the Funding Note Issuer is a party or by which it is bound; nor
result in the creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument (other than as contemplated
by the Transaction Documents); nor violate any law or any order, rule or regulation
applicable to the Funding Note Issuer of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having jurisdiction over
the Funding Note Issuer or its properties.


 


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ARTICLE IV




AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE




Section 4.01. General Authority. The Eligible Lender Trustee is authorized and directed to
execute and deliver the Funding Note Purchase Agreement, the Student Loan Purchase Agreement, all
Servicing Agreements to which it is a party 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 Funding Note Issuer shall approve as evidenced conclusively by the Eligible Lender Trustee’s
execution thereof. The Eligible Lender Trustee is also authorized and directed on behalf and for
the benefit of the Funding Note Issuer to acquire and hold legal title to the Financed Student
Loans and to take all actions required of the Eligible Lender Trustee pursuant to the Funding Note
Purchase Agreement, the Student Loan Purchase Agreement, all Servicing Agreements to which it is a
party, the Department Put Agreement and this Agreement including, but not limited to, applying to
the Department on behalf of itself and the Funding Note Issuer for a lender identification number
with respect to the Financed Student Loans.



Section 4.02. General Duties. It shall be the duty of the Eligible Lender Trustee to
discharge (or cause to be discharged) all its responsibilities as the Eligible Lender Trustee
pursuant to the terms of the Funding Note Purchase Agreement, the Student Loan Purchase Agreement,
all Servicing Agreements to which it is a party, the Department Put Agreement, this Agreement and
any other Transaction Documents to which the Eligible Lender Trustee is a party.



Section 4.03. No Duties Except as Specified in this Agreement. The 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 Financed Student Loans, or to
otherwise take or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as expressly provided
by the terms of the Funding Note Purchase Agreement, the Student Loan Purchase Agreement, any
Servicing Agreement to which it is a party, the Department Put Agreement or this Agreement; and no
implied duties or obligations shall be read into the Funding Note Purchase Agreement, the Student
Loan Purchase Agreement, any Servicing Agreement to which it is a party, the Department Put
Agreement or this Agreement against the Eligible Lender Trustee.



Section 4.04. No Action Except Under Specified Documents. The Eligible Lender Trustee shall
not otherwise deal with the Financed Student Loans except in accordance with the powers granted to
and the authority conferred upon the Eligible Lender Trustee pursuant to the Funding Note Purchase
Agreement, the Student Loan Purchase Agreement, any Servicing Agreement to which it is a party, the
Department Put Agreement, this Agreement and any other Transaction Documents to which the Eligible
Lender Trustee is a party.



Section 4.05. Restrictions. The Eligible Lender Trustee shall not take any action that is
inconsistent with the purposes of the Funding Note Issuer set forth in the Transaction Documents
and the Department Put Agreement.



ARTICLE V




CONCERNING THE ELIGIBLE LENDER TRUSTEE




Section 5.01. Acceptance of Trust and Duties. The 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 Eligible Lender Trustee shall not be answerable or accountable
hereunder or under the Funding Note Purchase Agreement, the Student Loan Purchase Agreement, the
Department Put Agreement or any Servicing Agreement to which it is a party 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 5.02 below expressly made by the
Eligible Lender Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):


(i) The Eligible Lender Trustee shall not be liable for any error of judgment made by a
responsible officer, director, employee, affiliate, agent or attorney of the Eligible Lender
Trustee.



 


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(ii) No provision of the Funding Note Purchase Agreement, the Student Loan Purchase
Agreement, any Servicing Agreement to which it is a party, the Department Put Agreement or
this Agreement shall require the 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 Funding Note Purchase Agreement, the Student Loan Purchase Agreement, the
Department Put Agreement or any Servicing Agreement to which it is a party, if the 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.




(iii) The 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 Funding Note
Issuer or for the form, character, genuineness, sufficiency, value or validity of any of the
Financed Student Loans or for or in respect of the validity or sufficiency of the Funding
Note Purchase Agreement, the Student Loan Purchase Agreement, the Department Put Agreement or
any Servicing Agreement to which it is a party.




(iv) In no event shall the Eligible Lender Trustee or its affiliates, directors,
officers, agents, attorneys or employees be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever irrespective of whether the Eligible
Lender Trustee has been advised of the likelihood of such loss or damage and regardless of
the form of action.




(v) The Eligible Lender Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or employees, and shall
be entitled to advice of counsel concerning all matters, and may in all cases pay such
reasonable compensation to any attorney, agent, receiver or employee retained or employed by
it in connection herewith (such compensation to be reimbursed pursuant to
Section 6.01). The Eligible Lender Trustee may act upon the opinion or advice of any
attorney or accountant selected by it in the exercise of reasonable care or, if selected or
retained by the Funding Note Issuer, approved by the Eligible Lender Trustee in the exercise
of such care. The Eligible Lender Trustee shall not be responsible for any loss or damage
resulting from any action or non-action based on its good faith reliance upon such opinion or
advice.




(vi) The Eligible Lender Trustee shall not be responsible for any recital herein or for
the recording or re-recording, filing, re-filing of any document or any supplement or
amendment thereto, or the filing of financing statements, or for the validity of the
execution by the Funding Note Issuer of this Agreement or any other Transaction Document to
which it is a party, or of any supplemental agreements or instruments of further assurance,
or for the value or title of the Financed Student Loans or otherwise as to the maintenance of
the security hereof.



Section 5.02. Representations and Warranties. The Eligible Lender Trustee hereby represents
and warrants to the Funding Note Issuer that:




(i) 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 Utah, at which it will
act as eligible lender trustee for the Funding Note Issuer. It has all requisite power and
authority to execute, deliver and perform its obligations under the Funding Note Purchase
Agreement, the Student Loan Purchase Agreement, all Servicing Agreements to which it is a
party, the Department Put Agreement and this Agreement.




(ii) It has taken or will take, prior to the related effective date thereof, all action
necessary to authorize the execution and delivery by it of the Funding Note Purchase
Agreement, the Student Loan Purchase Agreement, all Servicing Agreements to which it is a
party and this Agreement, and the Funding
Note Purchase Agreement, the Student Loan Purchase Agreement, all Servicing Agreements
to which it is a party 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.



 


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(iii) Neither the execution nor the delivery by it of the Funding Note Purchase
Agreement, the Student Loan Purchase Agreement, any Servicing Agreement to which it is a
party 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 New York state law, governmental rule or regulation governing the
banking or trust powers of the 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.




(iv) 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 Financed Student Loans and will apply to the Department for a lender identification
number with respect to the Financed Student Loans as contemplated by the Funding Note
Purchase Agreement, the Student Loan Purchase Agreement, all Servicing Agreements, the
Department Put Agreement and this Agreement.



Section 5.03. Not Acting in Individual Capacity. Except as provided in this
Article V, in accepting the trust hereby created, Zions First National Bank acts solely as
Eligible Lender Trustee hereunder on behalf and for the benefit of the Funding Note Issuer and not
in its individual capacity.



Section 5.04. Eligible Lender Trustee Not Liable for the Financed Student Loans. The
Eligible Lender Trustee makes no representations as to the validity or sufficiency of the Funding
Note Purchase Agreement, the Student Loan Purchase Agreement, any Servicing Agreement to which it
is a party, the Department Put Agreement, this Agreement or of any Financed Student Loan or related
documents. The Eligible Lender Trustee shall at no time have any responsibility for or with
respect to the sufficiency of the Financed Student Loans; the validity or completeness of the
assignment to the Eligible Lender Trustee of legal title to any Financed Student Loan on behalf and
for the benefit of the Funding Note Issuer; the performance or enforcement (except as expressly set
forth in the Funding Note Purchase Agreement, the Student Loan Purchase Agreement, the Department
Put Agreement or any Servicing Agreement to which it is a party) of any Financed Student Loan; the
compliance by the Funding Note Issuer or any Servicer with any warranty or representation made
under any Transaction Document or in any related document or the accuracy of any such warranty or
representation or any action or inaction of the SPV Administrator, the Conduit Administrator, the
Manager, the Sponsor or any Servicer taken in the name of the Eligible Lender Trustee.



ARTICLE VI




COMPENSATION AND INDEMNIFICATION OF ELIGIBLE LENDER TRUSTEE




Section 6.01. Fees. The 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
Funding Note Issuer (or any affiliate thereof) and the Eligible Lender Trustee, and the Eligible
Lender Trustee shall be entitled to be reimbursed by the Funding Note Issuer, to the extent
provided in such separate agreement, for its other reasonable expenses hereunder, including, but
not limited to, reimbursement of the fees and expenses of its counsel.



Section 6.02. Indemnity. The Funding Note Issuer shall, and shall cause the SPV
Administrator to, and by its execution hereof, the SPV Administrator hereby agrees to, indemnify
the Eligible Lender Trustee in its individual capacity and any of its officers, directors,
employees and agents as and to the extent provided for in Sections 7.01 and 7.02 of
the Funding Note Purchase Agreement.


 


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Section 6.03. Survival. The provisions of this Article VI shall be continuing and
shall survive the termination of this Agreement or the resignation or removal of the Eligible
Lender Trustee.



ARTICLE VII




TERMINATION OF FUNDING NOTE ISSUER ELIGIBLE LENDER 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 payment in full of the principal
of and interest on the Funding Notes and the termination of the Funding Notes under the Funding
Note Purchase Agreement and (ii) the expiration of 21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of
St. James’s, living on the date hereof.



ARTICLE VIII




SUCCESSOR ELIGIBLE LENDER TRUSTEES




Section 8.01. Eligibility Requirements for Eligible Lender Trustee. The 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 Financed Student Loans on behalf and for the benefit of the Funding
Note Issuer, with a valid lender identification number with respect to the Financed Student Loans
from the Department; and (ii) being authorized to exercise corporate trust powers and hold legal
title to the Financed Student Loans. In case at any time the Eligible Lender Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Eligible Lender Trustee shall
resign immediately in the manner and with the effect specified in Section 8.02.



Section 8.02. Resignation or Removal of Eligible Lender Trustee. The Eligible Lender Trustee
may at any time resign and be discharged from the trust hereby created by giving written notice
thereof to the Funding Note Issuer. Upon receiving such notice of resignation, the Funding Note
Issuer shall promptly appoint, with the consent of the Manager on behalf of the Conduit Lender
(which consent shall not be unreasonably withheld, conditioned or delayed), a successor Eligible
Lender Trustee meeting the eligibility requirements of Section 8.01 by written instrument,
in duplicate, one copy of which instrument shall be delivered to the resigning Eligible Lender
Trustee and one copy to the successor Eligible Lender Trustee. If no successor 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 Eligible Lender Trustee may petition any court of
competent jurisdiction for the appointment of a successor 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 Eligible Lender Trustee from any
obligations otherwise imposed on it under the Funding Note Purchase Agreement, the Student Loan
Purchase Agreement, any Servicing Agreement to which it is a party, the Department Put Agreement or
this Agreement until such successor has in fact assumed such appointment.



If at any time the Eligible Lender Trustee shall cease to be or shall be likely to cease to be
eligible in accordance with the provisions of Section 8.01 and shall fail to resign after
written request therefor by the Funding Note Issuer, then the Funding Note Issuer may remove the
Eligible Lender Trustee. If the Funding Note Issuer shall remove the Eligible Lender Trustee under
the authority of the immediately preceding sentence, the Funding Note Issuer shall promptly appoint
a successor Eligible Lender Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Eligible Lender Trustee so removed and one copy to
the successor Eligible Lender Trustee together with payment of all fees owed to the outgoing
Eligible Lender Trustee.



Any resignation or removal of the Eligible Lender Trustee and appointment of a successor
Eligible Lender Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by
the successor Eligible Lender Trustee pursuant to Section 8.03 and payment of all fees
and expenses owed to the outgoing Eligible Lender Trustee.


 


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Section 8.03. Successor Eligible Lender Trustee. Any successor Eligible Lender Trustee
appointed pursuant to Section 8.02 shall execute, acknowledge and deliver to the Funding
Note Issuer and to its predecessor Eligible Lender Trustee an instrument accepting such appointment
under this Agreement, and thereupon the resignation or removal of the predecessor Eligible Lender
Trustee shall become effective and such successor 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 Eligible Lender
Trustee. The predecessor Eligible Lender Trustee shall upon payment of its fees and expenses
deliver to the successor Eligible Lender Trustee all documents, statements, moneys and properties
held by it in trust under this Agreement and shall assign, if permissible, to the successor
Eligible Lender Trustee any lender identification number obtained from the Department with respect
to the Financed Student Loans to the extent such number is used by the Eligible Lender Trustee
solely with respect to such Financed Student Loans; and the Funding Note Issuer and the predecessor
Eligible Lender Trustee, at the sole cost and expense of the Funding Note Issuer, shall execute and
deliver such instruments (in form and substance reasonable satisfactory to the Eligible Lender
Trustee) and do such other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Eligible Lender Trustee all such rights, powers, duties and
obligations.



No successor Eligible Lender Trustee shall accept such appointment as provided in this Section
unless at the time of such acceptance such successor Eligible Lender Trustee shall be eligible
pursuant to Section 8.01.



Section 8.04. Merger or Consolidation of Eligible Lender Trustee. Any corporation or banking
association into which the 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 Eligible Lender Trustee shall be a party, or any corporation or banking
association succeeding to all or substantially all the corporate trust business of the 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 Eligible Lender Trustee hereunder; provided, that such corporation or
banking association shall be eligible pursuant to Section 8.01.



ARTICLE IX




MISCELLANEOUS




Section 9.01. Amendments and Waivers. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and, in the case of an amendment, is
signed by all the parties hereto and, in the case of a waiver, is signed by the party granting the
waiver and then such waiver shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment to this Agreement shall be effective unless
each Rating Agency shall have been provided with at least ten (10) days prior notice and S&P shall
not have notified the Manager or the SPV Administrator that such amendment would result in a
reduction, qualification or withdrawal of the then-current rating of the Funding Note. To the
extent the consent of any of the parties hereto is required under this Agreement, the determination
as to whether to grant or withhold such consent shall be made by such party in its sole discretion
without any implied duty toward any other Person, except as otherwise expressly provided herein or
therein.



Section 9.02. Notices. All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including communication by facsimile copy or other
electronic means) and mailed, delivered by nationally recognized overnight courier service,
transmitted or delivered by hand, as to each party hereto, at its address set forth on the
signature pages hereto or as specified in the Funding Note Purchase Agreement or at such other
address as shall be designated by such party in a written notice to the other parties hereto. Each
such notice,
request or other communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the specified facsimile number and an appropriate confirmation is
received, (ii) if given by e-mail (to the extent an e-mail address has been provided), when sent to
the specified e-mail address and an appropriate confirmation is received, (iii) if given by mail,
five days after being deposited in the United States mails, first class postage prepaid, (iv) if
given by recognized courier guaranteeing overnight delivery, the Business Day following such day
after such communication is delivered to such courier or (v) if given by any other means, when
delivered at the address specified in this Section.


 


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Section 9.03. No Waivers; Remedies. No failure or delay by any party hereto in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.



Section 9.04. Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns, except that no party may assign or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of each other party, except as otherwise
permitted by this Agreement and any such purported assignment without such consent shall be void.



Section 9.05. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING REGARD TO CONFLICTS OF LAWS PRINCIPALS OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).



Section 9.06. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.



Section 9.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE,
AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.



Section 9.08. Bankruptcy Non-Petition and Limited Recourse. The Eligible Lender Trustee (not
in its individual capacity but solely as Eligible Lender Trustee), by entering into this Agreement,
hereby covenants and agrees that it will not, prior to the date which is one year and one day (or,
if longer, any applicable preference period plus one day) after payment in full of the Funding
Notes, institute against, or join any other Person in instituting against, the Funding Note Issuer,
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any similar
proceeding under any federal or state bankruptcy or similar law; provided that nothing in this
provision shall preclude or be deemed to stop any party hereto (a) from taking any action prior to
the expiration of the aforementioned one year and one day period in (i) any case or proceeding
voluntarily filed or commenced by the Funding Note Issuer or (ii) any involuntary insolvency
proceeding filed or commenced against the Funding Note Issuer by a Person other than any other
party hereto or (b) from commencing against the Funding Note Issuer or the Pledged Collateral any
legal action which is not a bankruptcy, reorganization, arrangement, insolvency or a liquidation
proceeding. The obligations of the Funding Note Issuer are limited recourse obligations payable
solely from the Pledged Collateral and, following realization of the Pledged Collateral and its
application in accordance with the terms of the Funding Note Purchase Agreement, any outstanding
obligations of the Funding Note Issuer shall be extinguished and shall not thereafter revive. In
addition, no recourse shall be had for any amounts payable or any
other obligations arising under the Transaction Documents against any officer, member,
director, employee, partner or security holder of the Funding Note Issuer or any of their
successors or assigns. The foregoing shall not limit the rights of the Eligible Lender Trustee to
file any claim in, or otherwise take any action with respect to, any insolvency proceeding
instituted against the Funding Note Issuer by a Person other than the Eligible Lender Trustee.


 


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Section 9.09. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement. Delivery by facsimile or electronic mail of an executed signature page
of this Agreement shall be effective as delivery of an executed counterpart hereof.



Section 9.10. Entire Agreement. This Agreement, including all Exhibits, Schedules and
Appendices and other documents attached hereto or incorporated by reference herein, together with
the other Transaction Documents, constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes all other negotiations, understandings and
representations, oral or written with respect to the subject matter hereof.



Section 9.11. Limitation of Liability. No claim may be made by any party hereto or any other
Person against any other party hereto or their affiliates, directors, officers, employees,
attorneys or agents for any special, consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any act, omission or event occurring in connection therewith; and
each party hereto hereby waives, releases and agrees not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist in its favor.



Section 9.12. Section Titles. The section titles contained in this Agreement shall be
without substantive meaning or content of any kind whatsoever and are not a part of the agreement
between the parties.



Section 9.13. Limitations on Rights of Others. Except as provided in Section 9.14
hereof, the provisions of this Agreement are solely for the benefit of the Funding Note Issuer and
the Eligible Lender Trustee and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or claim in the Pledged
Collateral or under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.



Section 9.14. Acknowledgement and Agreement. By execution of this Agreement, each party
hereto expressly acknowledges and agrees that all of the Funding Note Issuer’s (and the Eligible
Lender Trustee’s) right, title, and interests in, to, and under this Agreement shall be assigned by
the Funding Note Issuer (or the Eligible Lender Trustee on its behalf) for collateral purposes to
the Conduit Lender and the Conduit Lender Eligible Lender Trustee pursuant to the Funding Note
Purchase Agreement, and such party consents to such assignment. Further, each of the parties
hereto acknowledges and agrees that the Conduit Lender, the Conduit Lender Eligible Lender Trustee
and the Affected Parties are express third party beneficiaries of the rights of the Funding Note
Issuer and the Eligible Lender Trustee arising hereunder. The Eligible Lender Trustee acknowledges
that after an Event of Default and during the continuation thereof, the Conduit Lender and the
Conduit Lender Eligible Lender Trustee shall have the right to enforce the Funding Note Issuer’s
rights and remedies under this Agreement, including, without limitation, the right at any time to
enforce this Agreement and the obligations of the Eligible Lender Trustee hereunder;
provided, however, that neither the Conduit Lender nor the Conduit Lender Eligible
Lender Trustee shall be obligated to perform any of the obligations of the Funding Note Issuer or
the Eligible Lender Trustee under this Agreement. The Eligible Lender Trustee acknowledges that
the rights of the Funding Note Issuer, the Conduit Lender, the Conduit Lender Eligible Lender
Trustee and any Affected Party with respect to the rights and remedies in connection with any
breach of any representation, warranty or covenant made by the Eligible Lender Trustee under this
Agreement shall be continuing and shall survive any termination of this Agreement.


 


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Section 9.15. Force Majeure. The Eligible Lender Trustee shall not be deemed to have
breached its obligations pursuant to this Agreement if it is rendered unable to perform such
obligations, in whole or in part, by a force outside the control of the parties hereto (including
acts of God, acts of war, fires, earthquakes, hurricanes, floods and other disasters). The
Eligible Lender Trustee shall diligently perform its duties under this Agreement as soon as
practicable following the termination of such interruption of business.



Section 9.16. Survival. The provisions of this Article IX shall be continuing and
shall survive the termination of this Agreement.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Eligible Lender Trust Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the day and year first
above written.



	 	 	 	 	 
	 	ZIONS FIRST NATIONAL BANK,

not in its individual capacity but solely

as the Eligible Lender Trustee hereunder

 	 
	 	By:  	/s/ David W. Bata
 	 
	 	 	Name:  	David W. Bata 	 
	 	 	Title:  	Vice President and Trust Officer 	 



	 	 	 	 	 
	 

	 	Address:
	 	 
	 
	 	 	 	 
	 

	 	1001 Seventeenth Street,
Suite 1050

Denver, CO 80202	 	 






	 	 	 	 	 
	 	NELNET SUPERCONDUIT FUNDING, LLC,

as the Funding Note Issuer

 	 
	 	By:  	/s/ Hannah Smitterberg
 	 
	 	 	Name:  	Hannah Smitterberg 	 
	 	 	Title:  	Assistant Vice President 	 



	 	 	 	 	 
	 

	 	Address:
	 	 
	 
	 	 	 	 
	 

	 	c/o National
Education Loan Network, Inc.,
as Administrator

121 South
13th
Street, Suite 201

Lincoln, NE 68505	 	 






	 	 	 	 	 	 	 
	Acknowledged and Agreed with respect to

Section 6.02:	 	 
	 
	 	 	 	 	 	 
	NATIONAL EDUCATION LOAN NETWORK, INC., as the SPV
Administrator	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Terry Heimes	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Terry Heimes	 	 
	 

	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 
	Address:

121 South 13th Street, Suite 201

Lincoln, NE 68505	 	 







 


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