Common use of REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE SELLER Clause in Contracts

REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE SELLER. With respect to FFELP Loans transferred on a Loan Purchase Date, the Seller will make the following representations and warranties on the applicable Loan Sale Purchase Date. (a) (i) Any information furnished by the Seller to the Purchaser, or the Purchaser's agents with respect to a FFELP Loan, including the Loan Transfer Schedule attached to the applicable Loan Transfer Addendum, is true, complete and correct in all material respects. (ii) The amount of the unpaid principal balance of each FFELP Loan shown on the Loan Transfer Schedule is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any FFELP Loan which can be asserted and maintained or which, with notice, lapse of time or the occurrence or failure to occur of any act or event could be asserted and maintained by the Borrower against the Seller or the Purchaser as assignee thereof. The Seller shall have taken all reasonable actions to assure that no maker of a FFELP Loan has or may acquire a defense to the payment thereof. No FFELP Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, no FFELP Loan acquired hereunder bears interest at a rate lower than the applicable rate of interest; provided, however, that the Purchaser may approve, in its sole discretion, in writing, interest reductions which are part of a borrower repayment incentive program of the Seller, the terms of which have been fully described in detail and in writing to the Purchaser. (iii) Each FFELP Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms. (iv) Each FFELP Loan complies in all respects with the requirements of the Higher Education Act and is an Eligible Loan. (v) The Seller has applied for and received the Secretary of Education's or a Guarantee Agency's designation as an "Eligible Lender" under the Higher Education Act, and the Seller has entered into all agreements required to be entered into for participation in the Federal Family Education Loan Program under the Higher Education Act. (vi) The Seller is the sole owner and holder of each FFELP Loan and has full right and authority to sell, contribute and assign the same free and clear of all liens, claims or encumbrances; no FFELP Loan has been pledged or assigned for any purpose; and each FFELP Loan is free of any and all liens, claims, encumbrances and security interests of any description. (vii) The Seller and any independent servicer have each exercised and shall continue to exercise, until the scheduled sale and contribution date, due diligence and reasonable care in making, administering, servicing and collecting the FFELP Loans. (viii) The Seller or the lender that originated a FFELP Loan, has reported the amount of origination fees, if any, authorized to be collected with respect to the loan pursuant to Section 438(c) of the Higher Education Act to the Secretary of Education for the period in which the fee was authorized to be collected. (ix) The Seller or originating lender has made any refund of an origination fee collected in connection with any loan which may be required pursuant to the Higher Education Act. (x) Each FFELP Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related FFELP Loan and is valid and binding upon the parties thereto; all amounts due and payable to the Secretary of Education or a Guarantee Agency, as the case may be, have been or will be paid in full by the Seller, and none of the FFELP Loans has at any time been tendered to either the Secretary of Education or any Guarantee Agency for payment. (xi) Each FFELP Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws. (xii) Each FFELP Loan is evidenced by an executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the Borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights. (xiii) No FFELP Loan has a payment that is more than 90 days overdue. (xiv) Each FFELP Loan is accruing interest (whether or not such interest is being paid currently, either by the Borrower or the Secretary of Education, or is being capitalized). (xv) Each FFELP Loan constitutes an "instrument" within the meaning of the applicable Uniform Commercial Code. (xvi) Other than pursuant to this Agreement, the Seller has not pledged, assigned, transferred, granted a security interest in, or otherwise conveyed any of the FFELP Loans. The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the FFELP Loans other than any financing statement relating to transfer of the FFELP Loans pursuant to this Agreement. The Seller is not aware of any judgment or tax lien filings against the Seller. (xvii) None of the FFELP Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any person other than the Purchaser. (i) The Seller has, and its officers acting on its behalf have, full legal authority to engage in the transactions contemplated by this Agreement. (ii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms, conditions and provisions of this Agreement do not and will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which the Seller is a party or by which it is bound or constitute a default thereunder; the Seller is not a party to or bound by any agreement or instrument or subject to any charter or other corporation restriction or judgment, order, writ, injunction, decree, law, rule or regulation which may materially and adversely affect the ability of the Seller to perform its obligations under this Agreement and this Agreement constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto, and no consent, approval or authorization is required in connection with the consummation of the transactions herein contemplated, except for those that have been obtained. (iii) The Seller is duly organized, validly existing and in good standing under the laws of its applicable jurisdiction of organization and has the power and authority to own its assets and carry on its business as now being conducted. (iv) The Seller shall not organize under the law of any jurisdiction other than the state under which it is organized as of the initial Loan Purchase Date (whether changing its jurisdiction of organization or organizing under an additional jurisdiction) without giving 30 days prior written notice of such action to the Purchaser. Before effecting such change, the Seller shall prepare and file in the appropriate filing office any financing statements or other statements necessary to continue the perfection of the Purchaser's interests in the FFELP Loans. (v) All loan documentation shall be delivered to a custodian prior to payment of the purchase price of such FFELP Loan.

REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE SELLER. With respect to FFELP Loans transferred on a Loan Purchase Date, the Seller will make the following representations and warranties on the applicable Loan Sale Purchase Date. (a) (i) Any information furnished by the Seller to the Purchaser, or the Purchaser's agents with respect to a FFELP Loan, including the Loan Transfer Schedule attached to the applicable Loan Transfer Addendum, is true, complete and correct in all material respects. (ii) The amount of the unpaid principal balance of each FFELP Loan shown on the Loan Transfer Schedule is correct, and no counterclaim, offset, defense or right to rescission exists with respect to any FFELP Loan which can be asserted and maintained or which, with notice, lapse of time or the occurrence or failure to occur of any act or event could be asserted and maintained by the Borrower against the Seller or the Purchaser as assignee thereof. The Seller shall have taken all reasonable actions to assure that no maker of a FFELP Loan has or may acquire a defense to the payment thereof. No FFELP Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits the Seller to charge an interest rate less than the applicable rate of interest, no FFELP Loan acquired hereunder bears interest at a rate lower than the applicable rate of interest; provided, however, that the Purchaser may approve, in its sole discretion, in writing, interest reductions which are part of a borrower repayment incentive program of the Seller, the terms of which have been fully described in detail and in writing to the Purchaser. (iii) Each FFELP Loan has been duly executed and delivered and constitutes the legal, valid and binding obligation of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms. (iv) Each FFELP Loan complies in all respects with the requirements of the Higher Education Act and is an Eligible Loan. (v) The Seller 's eligible lender trustee has applied for and received the Secretary of Education's or a Guarantee Agency's designation designation, as the case may be, as an "Eligible Lender" under the Higher Education Act, and the Seller or the Seller's eligible lender trustee has entered into all agreements required to be entered into for participation in the Federal Family Education Loan Program under the Higher Education Act. (viiii) The Seller acting through the Seller's eligible lender trustee is the sole owner and holder of each FFELP Loan and has full right and authority to sell, contribute and assign the same free and clear of all liens, claims or encumbrances; no FFELP Loan has been pledged or assigned for any purpose; and each FFELP Loan is free of any and all liens, claims, encumbrances and security interests of any description. (viiiv) The Seller and any independent servicer have each exercised and shall continue to exercise, until the scheduled sale and contribution date, due diligence and reasonable care in making, administering, servicing and collecting the FFELP Loans. (viiiv) The Seller or the lender that originated With respect to all FFELP Loans being acquired, a FFELP Loan, has reported the amount of origination fees, if any, authorized to be collected Guarantee Agreement is in effect with respect to the loan pursuant to Section 438(c) of the Higher Education Act to the Secretary of Education for the period in which the fee was authorized to be collected. (ix) The Seller or originating lender has made any refund of an origination fee collected in connection with any loan which may be required pursuant to the Higher Education Act. (x) Each FFELP Loan is Guaranteed; each Guarantee, is in full force and effect, is freely transferable as an incident to the transfer of the related FFELP Loan thereto and is valid and binding upon the parties thereto; thereto in all amounts due and payable respects material to the Secretary security of Education or a Guarantee Agency, as the case may be, have been or will be paid in full bonds and/or notes issued by the Seller, and none of Purchaser to finance the FFELP Loans has at any time been tendered to either the Secretary of Education or any Guarantee Agency for paymentLoans. (xi) Each FFELP Loan was made in compliance with all applicable local, state and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth-in-lending, consumer credit and usury laws. (xii) Each FFELP Loan is evidenced by an executed promissory note (which may be in electronic form), which note is a valid and binding obligation of the Borrower, enforceable by or on behalf of the holder thereof in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting creditors' rights. (xiii) No FFELP Loan has a payment that is more than 90 days overdue. (xiv) Each FFELP Loan is accruing interest (whether or not such interest is being paid currently, either by the Borrower or the Secretary of Education, or is being capitalized). (xv) Each FFELP Loan constitutes an "instrument" within the meaning of the applicable Uniform Commercial Code. (xvivi) Other than pursuant to this Agreement, the Seller has not pledged, assigned, transferred, granted a security interest in, or otherwise conveyed any of the FFELP Loans. The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the FFELP Loans other than any financing statement relating to transfer of the FFELP Loans pursuant to this Agreement. The Seller is not aware of any judgment or tax lien filings against the Seller. (xviivii) None of the FFELP Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any person other than the PurchaserSeller pursuant to the Loan Sale Agreement and the Purchaser pursuant to this Agreement. (i) The Seller has, and its officers acting on its behalf have, full legal authority to engage in the transactions contemplated by this Agreement. (ii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms, conditions and provisions of this Agreement do not and will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which the Seller is a party or by which it is bound or constitute a default thereunder; the Seller is not a party to or bound by any agreement or instrument or subject to any charter or other corporation restriction or judgment, order, writ, injunction, decree, law, rule or regulation which may materially and adversely affect the ability of the Seller to perform its obligations under this Agreement and this Agreement constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto, and no consent, approval or authorization is required in connection with the consummation of the transactions herein contemplated, except for those that have been obtained. (iii) The Seller is duly organized, validly existing and in good standing under the laws of its applicable jurisdiction of organization and has the power and authority to own its assets and carry on its business as now being conducted. (iv) The Seller shall not organize under the law of any jurisdiction other than the state under which it is organized as of the initial Loan Purchase Date (whether changing its jurisdiction of organization or organizing under an additional jurisdiction) without giving 30 days prior written notice of such action to the Purchaser. Before effecting such change, the Seller shall prepare and file in the appropriate filing office any financing statements or other statements necessary to continue the perfection of the Purchaser's interests in the FFELP Loans. (v) All loan documentation shall be delivered to a custodian prior to payment of the purchase price of such FFELP Loan.