REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date: (i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act; (ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction; (iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale; (iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and (v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
Appears in 14 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2012-7), Purchase Agreement (SLM Student Loan Trust 2012-6), Purchase Agreement (SLM Student Loan Trust 2014-1)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and;
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 5 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2006-2), Purchase Agreement (SLM Student Loan Trust 2006-4), Purchase Agreement (SLM Student Loan Trust 2006-8)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 4 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2009-1), Purchase Agreement (SLM Student Loan Trust 2008-8), Purchase Agreement (SLM Student Loan Trust 2008-7)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 4 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2005-7), Purchase Agreement (SLM Funding LLC), Purchase Agreement (SLM Student Loan Trust 2005-3)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period or the Funding Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 4 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2007-5), Purchase Agreement (SLM Student Loan Trust 2007-6), Purchase Agreement (SLM Student Loan Trust 2008-2)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 3 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2008-4), Purchase Agreement (SLM Student Loan Trust 2008-5), Purchase Agreement (SLM Student Loan Trust 2008-3)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2007-8), Purchase Agreement (SLM Student Loan Trust 2008-1)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of Funding and the Interim Eligible Lender Trustee on behalf of Funding, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents or approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to Funding and the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to Funding and the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of Funding in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding;
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect; and
(xx) [No loan with a Borrower who resides in New York City has a Borrower who has not made all payments then due and payable.]
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 [_________]. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by [one][two] of its officers who are duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or [_________] state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Education Credit Funding LLC), Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx Bxxx of Sale and any Additional Xxxx Bxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Bxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Bxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Bxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2006-1), Purchase Agreement (SLM Student Loan Trust 2005-4)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of Funding and the Interim Eligible Lender Trustee on behalf of Funding, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents or approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to Funding and the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to Funding and the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of Funding in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding;
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect; and
(xx) No Loan with a Borrower who resides in New York City has a Borrower who has not made all payments then due and payable.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 New York. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by two of its officers who are duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or New York state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2014-2), Purchase Agreement (SLM Student Loan Trust 2013-2)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Student Loan Trust 2006-5), Purchase Agreement (SLM Student Loan Trust 2006-10)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial a portfolio of Loans, as of the Closing Date, date of each Purchase Agreement and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as Xxxx of the related Purchase DateSale:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Terms and that Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding or substituted by SLM ECFC under the related Purchase Agreement and each Xxxx of Sale executed pursuant these Master Terms as of the date of the related Purchase Agreement, or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, the Purchased Loans are Eligible Loans and the description of the Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, each Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date or, in the case of any substituted Loans, the related Payment Cutoff Date, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, is noted in the related Loan File as being currently involved in a bankruptcy proceeding.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 2 contracts
Samples: Purchase Agreement (SLM Funding LLC), Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason. SLM ECFC Purchase Agreement 11
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of Funding and the Interim Eligible Lender Trustee on behalf of Funding, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to Funding and the Interim Eligible Lender Trustee, for SLM ECFC Purchase Agreement 13 the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to Funding and the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of Funding in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; SLM ECFC Purchase Agreement 14
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect; and
(xx) No Loan with a Borrower who resides in New York City has a Borrower who has not made all payments then due and payable.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “ Accounts ” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 [_____]. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “ Accounts ” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the Notes on its behalf, in each case as my be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; andand SLM ECFC Purchase Agreement 11
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of Funding and the Interim Eligible Lender Trustee on behalf of Funding, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to Funding and the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to Funding and the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of Funding in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to Funding and the Interim Eligible Lender Trustee on behalf of Funding hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; SLM ECFC Purchase Agreement 14
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect; and
(xx) No Loan with a Borrower who resides in New York City has a Borrower who has not made all payments then due and payable.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period or the Funding Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans; andPurchase Agreement – Master (SLM ECFC) 11
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the right date of the related Xxxx of Sale; Purchase Agreement – Master (SLM ECFC) 12
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to cause the Servicer reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to modifythe applicable Purchased Loans as of the Statistical Cutoff Date, discontinue in the case of the Initial Loans, or terminate as of the related Subsequent Cutoff Date, in the case of any borrower Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit incentive program at any time of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for any reason.the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain on its behalf the electronic records evidencing the Notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx Bxxx of Sale and any Additional Xxxx Bxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Bxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Bxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Bxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period or the Funding Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx Bxxx of Sale and any Additional Xxxx Bxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted: Purchase Agreement — Master (SLM ECFC)
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Purchase Agreement — Master (SLM ECFC) Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Bxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Purchase Agreement — Master (SLM ECFC) applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Bxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Bxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and Purchase Agreement — Master (SLM ECFC) each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding;
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect; and
(xx) No Loan with a Borrower who resides in New York City will have a Borrower who has not made all payments then due and payable.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period or the Funding Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute "Accounts" within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC's estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;"
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an "eligible lender" as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred sixty-nine (269) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 Florida. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period or the Funding Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx Bxxx of Sale and any Additional Xxxx Bxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Bxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period, as applicable, is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Bxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Bxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial a portfolio of Loans, as of the Closing Date, date of each Purchase Agreement and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as Xxxx of the related Purchase DateSale:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Terms and that Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding or substituted by SLM ECFC under the related Purchase Agreement and each Xxxx of Sale executed pursuant these Master Terms as of the date of the related Purchase Agreement, or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute "Accounts" within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, the Purchased Loans are Eligible Loans and the description of the Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, each Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date or, in the case of any substituted Loans, the related Payment Cutoff Date, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC's estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;"
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, is noted in the related Loan File as being currently involved in a bankruptcy proceeding.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an "eligible lender" as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial a portfolio of Loans, as of the Closing Date, date of each Purchase Agreement and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as Xxxx of the related Purchase DateSale:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Terms and that Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding or substituted by SLM ECFC under the related Purchase Agreement and each Xxxx of Sale executed pursuant these Master Terms as of the date of the related Purchase Agreement, or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, the Purchased Loans are Eligible Loans and the description of the Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, each Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the right date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to cause the Servicer reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to modifythe applicable Purchased Loans as of the Statistical Cutoff Date or, discontinue in the case of any substituted Loans, the related Payment Cutoff Date, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, and no default, breach, violation or terminate event permitting acceleration under the terms of any borrower Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit incentive program at any time of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for any reason.the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have has the right to, or the right to cause the Servicer to to, modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial a portfolio of Loans, as of the Closing Date, date of each Purchase Agreement and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as Xxxx of the related Purchase DateSale:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Terms and that Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding or substituted by SLM ECFC under the related Purchase Agreement and each Xxxx of Sale executed pursuant these Master Terms as of the date of the related Purchase Agreement, or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, the Purchased Loans are Eligible Loans and the description of the Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, each Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, such guarantee is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date or, in the case of any substituted Loans, the related Payment Cutoff Date, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, or, in the case of any purchase following the Closing Date, as of the date of the related Purchase Agreement, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date or, in the case of any substitution following the Closing Date, as of the date of the related Purchase Agreement, is noted in the related Loan File as being currently involved in a bankruptcy proceeding.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx Bxxx of Sale and any Additional Xxxx Bxxx of Sale;; and
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC does is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Bxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Servicer has possession of the electronic records evidencing the Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the right Interim Eligible Lender Trustee. All financing statements filed or to cause be filed against SLM ECFC in favor of the Servicer Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to modifythe following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, discontinue SLM ECFC has not pledged, assigned, sold, granted a security interest in, or terminate otherwise conveyed any borrower benefit incentive program at of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any time financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC; and
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Bxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in good standing under the laws of its governing jurisdiction and has an office located within the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Bxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any Federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act, for any reasonpurposes of holding legal title to the Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SLM ECFC AND THE INTERIM ELIGIBLE LENDER TRUSTEE. (A) General SLM ECFC represents and warrants to Funding that with respect to the Initial Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans substituted by it, as of the related Purchase Date:
(i) SLM ECFC is an eligible lender or other qualified holder of loans originated pursuant to the Federal Family Education Loan Program established under the Higher Education Act;
(ii) SLM ECFC is duly organized and existing under the laws of its governing jurisdiction;
(iii) SLM ECFC has all requisite power and authority to enter into and to perform the terms of these Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement, the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) SLM ECFC will not, with respect to any Loan purchased or substituted under Purchase Agreements executed pursuant to these Master Terms, agree to release any Guarantor from any of its contractual obligations as an insurer of such Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is insured, except as required by law or rules and regulations issued pursuant to law, without the express prior written consent of Funding; and
(v) SLM ECFC does not have the right to cause the Servicer to modify, discontinue or terminate any borrower benefit incentive program at any time for any reason.
(B) Particular SLM ECFC represents and warrants to Funding as to the Purchased Loans purchased by Funding under the Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each case executed pursuant to these Master Terms that, as of the related Purchase Date or as of the date otherwise noted:
(i) SLM ECFC has good and marketable title to, and is the sole owner of, the Purchased Loans, free and clear of all security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances of any nature and no right of rescission, offsets, defenses or counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible Lender Trustee, which security interest is prior to all other security interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is enforceable as such as against creditors of and purchasers from SLM ECFC;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts” within the meaning of the applicable UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Purchase Agreement and the related Loan Transmittal Summary Form is true and correct;
(v) SLM ECFC is authorized to sell, assign, transfer, substitute and repurchase the Purchased Loans; and the sale, assignment and transfer of such Loans is or, in the case of a Purchased Loan repurchase or substitution by SLM ECFC, will be made pursuant to and consistent with the laws and regulations under which SLM ECFC operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which SLM ECFC is a party or by which SLM ECFC or its property is bound, or constitute a default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in accordance with their terms and are legal, valid and binding obligations of the respective Borrowers thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for the consummation of the sale of the Purchased Loans hereunder to the Interim Eligible Lender Trustee;
(viii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, each Purchased Loan has been duly made and serviced in accordance with the provisions of the Federal Family Education Loan Program established under the Higher Education Act, and has been duly insured by a Guarantor; as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each Loan; and all premiums due and payable to such Guarantor shall have been paid in full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLM ECFC that have been allocated to the reduction of principal and interest on such Purchased Loans have been allocated on a simple interest basis; the information with respect to the applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x) Due diligence and reasonable care have been exercised in the making, administering, servicing and collecting on the Purchased Loans and, with respect to any Loan for which repayment terms have been established, all disclosures of information required to be made pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the related Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither SLM ECFC nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv) It is the intention of SLM ECFC, the Interim Eligible Lender Trustee and Funding, and SLM ECFC hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from SLM ECFC to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding, and that the beneficial interest in and title to such Loans not be part of SLM ECFC’s estate in the event of the bankruptcy of SLM ECFC or the appointment of a receiver with respect to SLM ECFC;
(xv) With respect to the first sale of Loans from SLM ECFC to the Interim Eligible Lender Trustee for the benefit of Funding it has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Loans granted to the Interim Eligible Lender Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, either (i) the Servicer has possession of the electronic records evidencing the Note or (ii) the Seller has agreements with the previous holders or servicers of such Note under which the relevant holder or servicer agrees to hold and maintain the electronic records evidencing the notes, in each case as may be necessary to enforce the Note or as may be required by applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that constitute or evidence the Purchased Loans. The Notes that constitute or evidence the Purchased Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Interim Eligible Lender Trustee. All financing statements filed or to be filed against SLM ECFC in favor of the Interim Eligible Lender Trustee on behalf of the Purchaser in connection herewith describing the Loans contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Interim Eligible Lender Trustee;”
(xvii) Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, SLM ECFC has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. SLM ECFC has not authorized the filing of and is not aware of any financing statements against SLM ECFC that include a description of collateral covering the Purchased Loans other than any financing statement relating to the security interest granted to the Interim Eligible Lender Trustee hereunder or any other security interest that has been terminated. SLM ECFC is not aware of any judgment or tax lien filings against SLM ECFC;
(xviii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, is noted in the related Trust Student Loan File as being currently involved in a bankruptcy proceeding; and
(xix) With respect to all Additional Loans (other than with respect to Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee 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 [_____]. It has all requisite corporate power and authority to execute, deliver and perform its obligations under these Master Terms, each Purchase Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to authorize the execution and delivery by it of these Master Terms and each Purchase Agreement, and these Master Terms and each Purchase Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver these Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each Purchase Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware state law, governmental rule or regulation governing the banking or trust powers of the Interim Eligible Lender Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is 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 Trust Student Loans as contemplated by these Master Terms, each Purchase Agreement and the other Basic Documents, it has a lender identification number with respect to the Trust Student Loans from the Department and has in effect a Guarantee Agreement with each of the Guarantors with respect to the Trust Student Loans.
Appears in 1 contract
Samples: Purchase Agreement (SLM Funding LLC)
