Regarding Financed Student Loans. The Seller (or the Seller Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor that as of the date of Transfer of the Transferred Assets: (a) Any information furnished by the Seller to the Depositor or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects. (b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms. (c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller or the Depositor as assignee thereof. The Seller has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, the Depositor may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the Seller, the terms of which have been fully described in detail and in writing to the Depositor. (d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods. (e) The Seller and the Seller Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor and the Depositor Eligible Lender Trustee pursuant to this Agreement, the Depositor and the Depositor Eligible Lender Trustee will acquire full right, title and interest in the Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may be. (f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement. (g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets. (h) The Seller and any Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans. (i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment. (j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws. (k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights. (l) No Financed Student Loan has a payment that is more than 90 days delinquent. (m) The Seller or the originating lender has reported or will report when due, and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected. (n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act. (o) The transactions contemplated by this Agreement are and will be in the ordinary course of the Seller's business, and the Seller has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Transferred or will Transfer the Financed Student Loans to the Depositor without any intent to hinder, delay or defraud any current or future creditor of the Seller; (ii) the Seller was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller was or will constitute unreasonably small capital in relation to the business of the Seller or the transaction; (iii) the Seller did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer. (p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor or the Seller to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller at the time of Transfer and except UCC filing fees. In the event that the Depositor receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the Depositor, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Depositor harmless therefor. The Seller shall not be responsible for the Depositor's income taxes, if any. (q) The Seller has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 3 contracts
Samples: Seller Transfer and Sale Agreement (Education Capital I LLC), Seller Transfer and Sale Agreement (Education Capital I LLC), Seller Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller Depositor or the Depositor Trust as assignee thereof. The Seller Depositor has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller Depositor to charge an interest rate less than the applicable rate of interest, the Depositor Trust may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the SellerDepositor, the terms of which have been fully described in detail and in writing to the DepositorTrust.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor Trust and the Depositor Trust Eligible Lender Trustee pursuant to this Agreement, the Depositor Trust and the Depositor Trust Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Master Servicer or applicable Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller Depositor and any Master Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller Depositor or the originating lender has reported reported, or will report when due, due and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller Depositor or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the SellerDepositor's business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the DepositorTrust's income taxes, if any.
(q) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 2 contracts
Samples: Depositor Transfer and Sale Agreement (Education Capital I LLC), Depositor Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller Depositor or the Depositor Trust as assignee thereof. The Seller Depositor has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller Depositor to charge an interest rate less than the applicable rate of interest, the Depositor Trust may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the SellerDepositor, the terms of which have been fully described in detail and in writing to the DepositorTrust.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor Trust and the Depositor Trust Eligible Lender Trustee pursuant to this Agreement, the Depositor Trust and the Depositor Trust Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller Depositor and any Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller Depositor or the originating lender has reported reported, or will report when due, due and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller Depositor or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the SellerDepositor's business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the DepositorTrust's income taxes, if any.
(q) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 2 contracts
Samples: Depositor Transfer and Sale Agreement (Education Capital I LLC), Depositor Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller Depositor or the Depositor Trust as assignee thereof. The Seller Depositor has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller Depositor to charge an interest rate less than the applicable rate of interest, the Depositor Trust may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the SellerDepositor, the terms of which have been fully described in detail and in writing to the DepositorTrust.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller and the Seller Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor and the Depositor Eligible Lender Trustee pursuant to this Agreement, the Depositor and the Depositor Eligible Lender Trustee will acquire full right, title and interest in the Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller and any Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller or the originating lender has reported or will report when due, and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the Seller's business, and the Seller has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Transferred or will Transfer the Financed Student Loans to the Depositor without any intent to hinder, delay or defraud any current or future creditor of the Seller; (ii) the Seller was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller was or will constitute unreasonably small capital in relation to the business of the Seller or the transaction; (iii) the Seller did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor or the Seller to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller at the time of Transfer and except UCC filing fees. In the event that the Depositor receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the Depositor, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Depositor harmless therefor. The Seller shall not be responsible for the Depositor's income taxes, if any.
(q) The Seller has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Depositor Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each To the best of the Depositor's knowledge, each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The To the best of the Depositor's knowledge, the amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correctdue and owing, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that which can be asserted and maintained or thatwhich with respect to any Financed Student Loan which can be asserted and maintained or which, with notice, lapse of time, or the occurrence or failure to too occur of any act or event, could be asserted and maintained by the student borrower against the Seller or the Depositor Trust as assignee thereof. The Seller has taken all reasonable actions to assure that no maker rate of a interest carried by each Financed Student Loan has acquired or may acquire a defense to is currently allowable and was allowable by law at the payment thereof. No time the loan was made, and no such Financed Student Loan carries a rate of interest less than, or in excess of, or less than, the applicable maximum rate permitted by the provisions of interest required by the Higher Education Act. If , subject, however, to the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, the Depositor may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower timely repayment incentive program programs described in Section 7.3(a)(viii) and Section 7.3(b)(viii) of the Seller, the terms of which have been fully described in detail and in writing to the DepositorPurchase Agreement.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the endorsement and delivery of a fully executed blanket endorsement with regard promissory notes evidencing such Financed Student Loan to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor and the Depositor Eligible Lender Trustee Trust pursuant to this Agreement, the Depositor and the Depositor Eligible Lender Trustee Trust will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans Loan free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may beServicer.
(fe) Each To the best of the Depositor's knowledge, each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(gf) The information set forth in Exhibit D hereto - Schedule of Financed Student Loans is true and correct in all material respects as of the applicable Appendix D accurately describes opening of business on the Closing Date.
(g) It is the intention of the Depositor and identifies the Depositor Eligible Lender Trustee that the Transfer from the Depositor Eligible Lender Trustee on behalf of Depositor to the Trust herein contemplated constitute a true sale of the Financed Student Loans transferred as part to the Trust and that neither the interest in nor title to the Financed Student Loans shall become or be deemed property of the Transferred AssetsDepositor for any purpose under state or federal law.
(h) The Seller Depositor shall furnish and any Servicer or Subservicerfile, as the case may be, have each exercised and shall continue cause the Depositor Eligible Lender Trustee to exercisefurnish and file, until if appropriate, any document reasonably requested by the consummation of Trust to perfect the Transfer, due diligence and reasonable care Trust's ownership interest in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller or the originating lender has reported or will report when due, and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the SellerDepositor's business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(pj) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the DepositorTrust's income taxes, if any.
(qk) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Transfer and Sale Agreement (Student Loan Funding LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans set forth in Appendix D is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller Depositor or the Depositor Trust as assignee thereof. The Seller Depositor has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller Depositor to charge an interest rate less than the applicable rate of interest, the Depositor Trust may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the SellerDepositor, the terms of which have been fully described in detail and in writing to the DepositorTrust.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor Trust and the Depositor Trust Eligible Lender Trustee pursuant to this Agreement, the Depositor Trust and the Depositor Trust Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Master Servicer or applicable Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller Depositor and any Master Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' ’ rights.
(l) No Financed Student Loan has a payment that is more than 90 ninety (90) days delinquent.
(m) The Seller Depositor or the originating lender has reported reported, or will report when due, due and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller Depositor or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the Seller's Depositor’s business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("“Transfer Taxes"”) except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the Depositor's Trust’s income taxes, if any.
(q) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Depositor Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each To the best of the Depositor's knowledge, each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The To the best of the Depositor's knowledge, the amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correctdue and owing, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that which can be asserted and maintained or thatwhich with respect to any Financed Student Loan which can be asserted and maintained or which, with notice, lapse of time, or the occurrence or failure to too occur of any act or event, could be asserted and maintained by the student borrower against the Seller or the Depositor Trust as assignee thereof. The Seller has taken all reasonable actions to assure that no maker rate of a interest carried by each Financed Student Loan has acquired or may acquire a defense to is currently allowable and was allowable by law at the payment thereof. No time the loan was made, and no such Financed Student Loan carries a rate of interest less than, or in excess of, or less than, the applicable maximum rate permitted by the provisions of interest required by the Higher Education Act. If , subject, however, to the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, the Depositor may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower timely repayment incentive program of the Seller, the terms of which have been fully programs described in detail and in writing to the DepositorPurchase Agreement.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor Trust and the Depositor Co-Owner Eligible Lender Trustee pursuant to this Agreement, the Depositor Trust and the Depositor Co-Owner Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may beServicer.
(fe) Each To the best of the Depositor's knowledge, each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(gf) The information set forth in the applicable Appendix Exhibit D hereto accurately describes and identifies the Financed Student Loans transferred as part of the Transferred AssetsAssets separate from any Financed Student Loans not transferred by the Depositor and the Depositor Eligible Lender Trustee.
(g) It is the intention of the Depositor and the Depositor Eligible Lender Trustee that the Transfer from the Depositor Eligible Lender Trustee, in each case on behalf of Depositor to the Trust herein contemplated, constitute a true sale of the Financed Student Loans to the Trust and that neither the interest in nor title to the Financed Student Loans shall become or be deemed property of the Depositor for any purpose under state or federal law.
(h) The Seller Depositor shall furnish and any Servicer or Subservicerfile, as the case may be, have each exercised and shall continue cause the Depositor Eligible Lender Trustee to exercisefurnish and file, until if appropriate, any document reasonably requested by the consummation of Trust to perfect the Transfer, due diligence Trust's and reasonable care the Co-Owner Eligible Lender Trustee's ownership interest in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller or the originating lender has reported or will report when due, and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the SellerDepositor's business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(pj) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the DepositorTrust's income taxes, if any.
(qk) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Transfer and Sale Agreement (Student Loan Funding LLC)
Regarding Financed Student Loans. The Seller (or the Seller Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller to the Depositor or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans set forth in Appendix D is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller or the Depositor as assignee thereof. The Seller has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, the Depositor may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the Seller, the terms of which have been fully described in detail and in writing to the Depositor.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller and the Seller Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor and the Depositor Eligible Lender Trustee pursuant to this Agreement, the Depositor and the Depositor Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Master Servicer or applicable Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller and any Master Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' ’ rights.
(l) No Financed Student Loan has a payment that is more than 90 ninety (90) days delinquent.
(m) The Seller or the originating lender has reported reported, or will report when due, due and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the Seller's ’s business, and the Seller has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Transferred or will Transfer the Financed Student Loans to the Depositor without any intent to hinder, delay or defraud any current or future creditor of the Seller; (ii) the Seller was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller was or will constitute unreasonably small capital in relation to the business of the Seller or the transaction; (iii) the Seller did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor or the Seller to any federal, state or local government ("“Transfer Taxes"”) except such Transfer Taxes as are paid by the Seller at the time of Transfer and except UCC filing fees. In the event that the Depositor receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the Depositor, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Depositor harmless therefor. The Seller shall not be responsible for the Depositor's ’s income taxes, if any.
(q) The Seller has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Seller Transfer and Sale Agreement (Education Capital I LLC)
Regarding Financed Student Loans. The Seller Depositor (or the Seller Depositor Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor Trust that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller Depositor to the Depositor Trust or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that which can be asserted and maintained or thatwhich, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller Depositor or the Depositor Trust as assignee thereof. The Seller Depositor has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller Depositor to charge an interest rate less than the applicable rate of interest, the Depositor Trust may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the SellerDepositor, the terms of which have been fully described in detail and in writing to the DepositorTrust.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller Depositor and the Seller Depositor Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor Trust and the Depositor Trust Eligible Lender Trustee pursuant to this Agreement, the Depositor Trust and the Depositor Trust Eligible Lender Trustee will acquire full right, title and interest in the in, or alternatively, a lien and perfected security interest in, such Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller Depositor and any Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller Depositor or the originating lender has reported reported, or will report when due, due and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller Depositor or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, Loan which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the SellerDepositor's business, and the Seller Depositor has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Depositor Transferred or will Transfer the Financed Student Loans to the Depositor Trust without any intent to hinder, delay or defraud any current or future creditor of the SellerDepositor; (ii) the Seller Depositor was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller Depositor was or will constitute unreasonably small capital in relation to the business of the Seller Depositor or the transaction; (iii) the Seller Depositor did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller Depositor was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller Depositor pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor Trust or the Seller Depositor to any federal, state or local government ("Transfer Taxes") except such Transfer Taxes as are paid by the Seller Depositor at the time of Transfer and except UCC filing fees. In the event that the Depositor Trust receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the DepositorTrust, or upon the Seller Depositor otherwise being given notice thereof, the Seller Depositor shall pay, and otherwise indemnify and hold the Depositor Trust harmless therefor. The Seller Depositor shall not be responsible for the DepositorTrust's income taxes, if any.
(q) The Seller Depositor has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Depositor Transfer and Sale Agreement (Education Funding Capital Trust I)
Regarding Financed Student Loans. The Seller (or the Seller Eligible Lender Trustee where expressly otherwise stated) hereby represents and warrants to the Depositor that as of the date of Transfer of the Transferred Assets:
(a) Any information furnished by the Seller to the Depositor or its agents with respect to any Financed Student Loan is true, complete and correct in all material respects.
(b) Each Financed Student Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) The amount of the unpaid principal balance of each Financed Student Loan shown on the applicable Appendix D, Schedule of Financed Student Loans is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any Financed Student Loan that can be asserted and maintained or that, with notice, lapse of time, or the occurrence or failure to occur of any act or event, could be asserted and maintained by the student borrower against the Seller or the Depositor as assignee thereof. The Seller has taken all reasonable actions to assure that no maker of a Financed Student Loan has acquired or may acquire a defense to the payment thereof. No Financed Student Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, the Depositor may approve, in its sole discretion, in writing, interest reductions which are part of a student borrower repayment incentive program of the Seller, the terms of which have been fully described in detail and in writing to the Depositor.
(d) Each Financed Student Loan provides for periodic payments that will fully amortize the amount financed over its term to maturity, exclusive of any deferral or forbearance periods.
(e) The Seller and the Seller Eligible Lender Trustee are the sole owners and holders of each Financed Student Loan and have full right and authority to Transfer the same free and clear of all liens, pledges or encumbrances, and upon the delivery of a fully executed blanket endorsement with regard to the promissory notes and applications evidencing the Transfer of the Financed Student Loans to the Depositor and the Depositor Eligible Lender Trustee pursuant to this Agreement, the Depositor and the Depositor Eligible Lender Trustee will acquire full right, title and interest in the Financed Student Loans free and clear of all liens, pledges or encumbrances whatsoever. All documentation relating to the Financed Student Loans, including the original promissory note (or an original or copy of each Master Promissory Note) for each Financed Student Loan, is in the possession of the applicable Servicer or Subservicer, as the case may be.
(f) Each Financed Student Loan was originated in the United States of America, its territories or its possessions in accordance with the Federal Family Education Loan Program, complies in all respects with the requirements of the Higher Education Act and is a Financed Student Loan as those terms are defined in this Agreement.
(g) The information set forth in the applicable Appendix D accurately describes and identifies the Financed Student Loans transferred as part of the Transferred Assets.
(h) The Seller and any Servicer or Subservicer, as the case may be, have each exercised and shall continue to exercise, until the consummation of the Transfer, due diligence and reasonable care in making, administering, servicing and collecting the Financed Student Loans.
(i) Each Financed Student Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related Financed Student Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary or a Guarantee Agency, as the case may be, have been paid or will be paid in full by the Seller, and none of the Financed Student Loans has at any time been tendered to either the Secretary or any Guarantee Agency for payment.
(j) Each Financed Student Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws.
(k) Each Financed Student Loan is evidenced by a single executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the student borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' ’ rights.
(l) No Financed Student Loan has a payment that is more than 90 days delinquent.
(m) The Seller or the originating lender has reported or will report when due, and has paid or will pay out of the Purchase Price, the amount of origination fees and consolidation rebate fees, if any, authorized to be collected with respect to each Financed Student Loan pursuant to Section 438(c) of the Higher Education Act to the Secretary for the period in which the fee was authorized to be collected.
(n) The Seller or the originating lender has made any refund of origination fee collected in connection with any Financed Student Loan, which may be required pursuant to the Higher Education Act.
(o) The transactions contemplated by this Agreement are and will be in the ordinary course of the Seller's ’s business, and the Seller has valid business reasons for Transferring the Financed Student Loans rather than obtaining a secured loan with the Financed Student Loans as collateral. Both before and immediately after giving effect to any Transfer: (i) the Seller Transferred or will Transfer the Financed Student Loans to the Depositor without any intent to hinder, delay or defraud any current or future creditor of the Seller; (ii) the Seller was not engaged and was not about to engage, and will not engage in, any business or transaction for which any property remaining with the Seller was or will constitute unreasonably small capital in relation to the business of the Seller or the transaction; (iii) the Seller did not intend or will not intend to incur, and did not believe or reasonably should not have believed, or will not believe or reasonably shall not have believed, that it would incur debts beyond its ability to pay as they become due; and (iv) the Seller was not and will not be insolvent or did not or will not become insolvent as a result of any Transfer.
(p) Each Transfer of the Financed Student Loans (including all payments due or to become due thereunder) by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Depositor or the Seller to any federal, state or local government ("“Transfer Taxes"”) except such Transfer Taxes as are paid by the Seller at the time of Transfer and except UCC filing fees. In the event that the Depositor receives actual notice of any unpaid Transfer Taxes arising out of the Transfer of the Financed Student Loans, on written demand by the Depositor, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Depositor harmless therefor. The Seller shall not be responsible for the Depositor's ’s income taxes, if any.
(q) The Seller has conducted or caused to be conducted on its behalf a reasonable investigation of sufficient scope and content to enable it to make in good faith the representations and warranties contained in this Agreement.
Appears in 1 contract
Samples: Seller Transfer and Sale Agreement (Education Capital I LLC)
