Procedures and Conditions for Transfer. 3.01. CONVEYANCES OF BANK OF AMERICA DIRECT TO CONSUMER CONFORMING LOANS; CONDITIONS TO PURCHASE. (a) On each Purchase Date, upon execution and delivery of the related Pool Supplement, Program Lender shall sell, transfer, assign, set over and otherwise convey to FMC or the Purchaser Trust, without recourse, all right, title and interest of Program Lender in and to: (1) The Seasoned Loans included in the related Pool originated by Program Lender and all payments due or to become due thereon; (2) Any claims against ▇▇▇▇ and proceeds of such claims with respect to origination of the Seasoned Loans included in the Pool; (3) Any claims against Servicer with respect to servicing of the Seasoned Loans prior to the Purchase Date. (4) The proceeds of any and all of the foregoing received after the Purchase Date or received prior thereto and not credited against the Minimum Purchase Price as computed on the Purchase Date; and (5) All rights of Program Lender under the Guaranty Agreement with respect to the Seasoned Loans in the Pool. (b) The obligation of FMC and/or any Purchaser Trust to purchase the Seasoned Loans on the related Purchase Date shall be subject to satisfaction of the following conditions (any of which may be waived by FMC or such Purchaser Trust, in whole or in part in its sole discretion): (1) Program Lender shall have delivered to the Purchaser Trust a duly authorized and executed Pool Supplement; (2) Each of the representations and warranties made by Program Lender with respect to the Seasoned Loans included in such Pool shall be true and correct in all material respects as of the related Purchase Date; (3) Lender shall have entered into an Origination Agreement and a Servicing Agreement satisfactory in form and substance to FMC and such agreements shall be in full force and effect as of the Purchase Date and shall not have been modified except with the express prior written consent of FMC and Program Lender; (a) Program Lender shall have performed and observed the terms and conditions of this Agreement in all material respects; (b) Program Lender and ▇▇▇▇ shall have performed and observed the terms and conditions of the Origination Agreement in all material respects and there shall not have occurred a default thereunder; (c) Program Lender and Servicer shall have performed and observed the terms and conditions of the Servicing Agreement in all material respects and there shall not have occurred a default thereunder; (5) Program Lender shall have complied with the provisions of the Umbrella Agreement applicable to the Seasoned Loans included in the Pool; (6) The Seasoned Loans to be purchased shall have been originated and serviced in conformity with the Program Guidelines in all material respects and shall be covered by the Guaranty Agreement; (7) If requested by FMC, ▇▇▇▇ shall have executed and delivered a confirmation of guaranty in the form of a Certificate of Guaranty, covering all Seasoned Loans being purchased, for the benefit of the Purchaser Trust and the indenture trustee in the Securitization Transaction; (8) The Agent, acting pursuant to the Deposit and Security Agreement, shall have transferred to the indenture trustee in the Securitization Transaction the portion of the Pledged Account and the Collateral specified in Section 4 of the Deposit and Security Agreement; (9) If required by any other Lender whose loans are included in the Securitization Transaction, the Program Lender shall have executed and delivered a Co-Lender Indemnification Agreement substantially in the form of Exhibit B; (10) Program Lender shall, at its own expense, on or prior to the Purchase Date, indicate in computer files relating to Bank of America Direct to Consumer Conforming Loans that the Seasoned Loans identified in the related Pool Supplement have been sold to the Purchaser Trust pursuant to this Agreement and such Pool Supplement; (11) Program Lender hereby authorizes the filing of a UCC-1 financing statement with respect to the Seasoned Loans included in such Pool in the appropriate office of the jurisdiction in which the Program Lender is located (or, in the event of a change of law, Program Lender shall have taken, but at no additional cost or expense to the Program Lender, such action as may be reasonably required by the Purchaser Trust); (12) As of such Purchase Date: (i) Program Lender was not insolvent and will not become insolvent as a result of the sale and transfer of Seasoned Loans on such Purchase Date, (ii) Program Lender did not intend to incur or believe that it would incur debts that would be beyond Program Lender's ability to pay as such debts matured, (iii) such transfer was not made with actual intent to hinder, delay or defraud any Person, and (iv) Program Lender was "Well Capitalized," as such term is defined by the rules and regulations promulgated by the Office of the Comptroller of the Currency as in effect on the Purchase Date; (13) In the reasonable judgment of FMC, no Market Disruption Event has occurred; provided that if satisfaction of the condition set forth in this Section 3.01(b)(13) is the only outstanding condition to closing, FMC shall schedule a new Purchase Date as soon as is reasonably practicable after the Market Disruption Event has ceased; and (14) Program Lender shall have delivered to counsel for FMC a Certificate substantially in the form of Exhibit D attached hereto. (c) The obligation of Program Lender to sell the Seasoned Loans included in the Pool on a related Purchase Date is subject to satisfaction of the following conditions (any of which may be waived by Program Lender in whole or in part, in its sole discretion): (1) Purchaser Trust shall have delivered to Program Lender a duly authorized and executed Pool Supplement; (2) Purchaser Trust shall have paid the Minimum Purchase Price to Program Lender by wire transfer of immediately available funds within twenty-four (24) hours after the Purchase Date (such Minimum Purchase Price shall be based on the best information available from the Servicer as of the Purchase Date; no later than thirty (30) days following the Purchase Date, the Purchaser Trust shall recalculate the Minimum Purchase Price to reflect adjustments for transactions (including, without limitation, additional accrued interest and payments received), and whichever party is deemed to owe the other such adjustment shall deliver such adjustment to such other party, by wire transfer of immediately available funds); (3) FMC shall have complied with the terms of the Umbrella Agreement applicable to the Seasoned Loans included in the Pool and no default of FMC under the Umbrella Agreement relating to any Seasoned Loan shall have materially impaired the rights of the Program Lender in connection with the purchase and sale of the Pool to be sold on the Purchase Date; (4) FMC and Purchaser Trust shall have executed and delivered an Indemnification Agreement substantially in the form of Exhibit C attached hereto, PROVIDED, HOWEVER, that an Indemnification Agreement shall not be required if FMC executes and delivers to Program Lender a certificate which states that no Offering Materials (as defined in Exhibit C attached hereto) were distributed or provided to any securities purchaser or 18 prospective purchaser in connection with the Securitization Transaction in question; (5) In the event the subject Pool contains loans originated by persons and entities other than Program Lender, and its designated agent (to the extent permitted under the Umbrella Agreement), each such person and entity shall have delivered to Program Lender a Co-Lender Indemnification Agreement; (6) If the trustee or other fiduciary under the related Trust Indenture is not Wachovia Trust Company, N.A., Program Lender shall have approved such trustee or fiduciary, with such approval not to have been unreasonably withheld; (7) Program Lender shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Wood or other securities counsel to the Purchaser Trust and FMC, addressed to Program Lender and satisfactory to Program Lender in form and substance. Such opinion shall, with respect to any securities issued by the Purchaser Trust, state that nothing has come to the attention of such counsel that would lead it to believe that the Offering Materials (as defined in the Indemnification Agreement attached hereto as Exhibit C) in connection with the matters described therein contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ may except the B of A Information (as defined in Exhibit C attached hereto) from the scope of its opinion, and FURTHER PROVIDED, HOWEVER, that such opinion shall not be required if FMC executes and delivers to Program Lender a certificate which states that no Offering Materials (as defined in Exhibit C attached hereto) were distributed or provided to any securities purchaser or prospective purchaser in connection with the Securitization Transaction in question; and (8) Purchaser Trust assumes certain liabilities as set forth in Section 3.07 of this Agreement.
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Sources: Note Purchase Agreement (First Marblehead Corp), Note Purchase Agreement (First Marblehead Corp)
Procedures and Conditions for Transfer. 3.01. CONVEYANCES OF BANK OF AMERICA DIRECT TO CONSUMER GATE CONFORMING LOANS; CONDITIONS TO PURCHASE.
(a) On each Purchase Date, upon execution and delivery of the related Pool Supplement, Program Lender shall sell, transfer, assign, set over and otherwise convey to FMC or the Purchaser Trust, without recourse, all right, title and interest of Program Lender in and to:
(1) The Seasoned Loans included in the related Pool originated by Program Lender and all payments due or to become due thereon;
(2) Any claims against proceeds with respect to the Seasoned Loans originated by Program Lender included in such Pool from recourse to ▇▇▇▇ and proceeds of such claims with respect to under the Origination Services Agreement regarding origination of the Seasoned Loans included in the PoolprepGATE Conforming Loans;
(3) Any claims against Servicer Program Lender may have under the Servicing Agreement with respect to servicing acts or omissions of the Servicer affecting the Seasoned Loans prior to the Purchase Date.being purchased;
(4) The proceeds of any and all of the foregoing received after the Purchase Date or received prior thereto and not credited against the Minimum Purchase Price as computed on the Purchase Date; Date (and, pursuant to Section 3.07, the Purchaser Trust shall assume certain liabilities of Program Lender thereunder);
(5) All rights of Program Lender under the Guaranty Agreement with respect to the Seasoned Loans loans in the Pool.
(b) The obligation of FMC and/or any the Purchaser Trust to purchase the Seasoned Loans originated by Program Lender on the related Purchase Date shall be subject to satisfaction of the following conditions (any each and all of which may be waived by FMC or such Purchaser Trust, in whole or in part in its sole discretion):
(1) Program Lender shall have delivered to the Purchaser Trust a duly authorized and executed Pool Supplement;
(2) Each of the representations and warranties made by Program Lender pursuant to Section 5.02 with respect to the Seasoned Loans originated by Program Lender included in such Pool shall be true and correct in all material respects as of the related Purchase Date;
(3) Lender shall have entered into an The Origination Services Agreement and a the Servicing Agreement satisfactory in form and substance to FMC and such agreements shall be in full force and effect as of the related Purchase Date and Program Lender and Servicer shall not have been modified except with the express prior written consent of FMC executed and Program Lenderdelivered a Servicing Assignment and Servicer Consent Letter;
(a) Program Lender shall have performed and observed the terms and conditions of this Agreement in all material respects;
(b4) Program Lender and ▇▇▇▇ shall have performed and observed the terms and conditions of this Agreement and the Origination Services Agreement in all material respects and there shall not have occurred a default thereunder;
(c) Program Lender and Servicer shall have performed and observed under either the terms and conditions of Origination Services Agreement or the Servicing Agreement in all material respects and there shall not have occurred a default thereunderAgreement;
(5) Program Lender shall have complied with the provisions of the Umbrella Agreement applicable to the Seasoned Loans included in the Pool;
(6) The Seasoned Loans loans to be purchased shall have been originated and serviced in conformity with the Program Guidelines in all material respects Product Specifications and shall be covered by the Guaranty Agreement;
(7) If requested by FMC, ▇▇▇▇ shall have executed and delivered a confirmation of guaranty in the form of a Certificate of Guaranty, covering all Seasoned Loans being purchased, for the benefit of the Purchaser Trust and the indenture trustee in the Securitization Transaction;
(8) The Agent, acting Agent pursuant to the Deposit and Security Agreement, shall have transferred to the indenture trustee in the Securitization Transaction the portion of the Pledged Account and the Collateral specified in Section 4 of the Deposit and Security Agreement;
(9) 8) If required by any other Lender whose loans are included in the Securitization Transaction, the Program Lender shall have executed and delivered a Co-Lender Indemnification Agreement substantially in the form of Exhibit BC;
(109) Program Lender shall, at its own expense, on or prior to the Purchase Date, indicate in computer files relating to Bank of America Direct to Consumer Conforming Seasoned Loans that the Seasoned Loans identified in the related Pool Supplement have been sold to the Purchaser Trust pursuant to this Agreement and such Pool Supplement;
(1110) Program Lender hereby authorizes the shall have executed and delivered for filing of a UCC-1 financing statement with respect to the Seasoned Loans originated by Program Lender included in such Pool in the appropriate office of the jurisdiction in which the chief executive office of the Program Lender is located (or, in the event of a change of law, Program Lender shall have taken, but at no additional cost or expense to the Program Lender, such action as may be reasonably required advised by the Purchaser Trust);
(1211) As of such Purchase Date: (i) Program Lender was not insolvent and will not become insolvent as a result of the sale and transfer of Seasoned Loans on such Purchase Date, (ii) Program Lender did not intend to incur or believe that it would incur debts that would be beyond Program Lender's ability to pay as such debts matured, (iii) such transfer was not made with actual intent to hinder, delay or defraud any Person, and (iv) Program Lender was "Well Capitalized," as such term is defined by the rules and regulations promulgated by the Office of the Comptroller of the Currency as in effect on the Purchase Date;
(13) In the reasonable judgment of FMC, no Market Disruption Event has occurred; provided that if satisfaction of the condition set forth in this Section 3.01(b)(13) is the only outstanding condition to closing, FMC shall schedule a new Purchase Date as soon as is reasonably practicable after the Market Disruption Event has ceased; and
(1412) Program Lender shall have executed and delivered to counsel for FMC a Certificate an Indemnification Agreement substantially in the form of Exhibit D attached hereto, PROVIDED, HOWEVER, that an Indemnification Agreement shall not be required if FMC executes and delivers to Program Lender a certificate which states that no Offering Materials (as defined in Exhibit D attached hereto) were distributed or provided to any securities purchaser or prospective purchaser in connection with the Securitization Transaction in question.
(c) The obligation of Program Lender to sell the Seasoned Loans originated by Program Lender included in the Pool on a related Purchase Date is are subject to satisfaction of the following conditions (any each and all of which may be waived by Program Lender in whole or in part, in its sole discretion):
(1) Purchaser Trust shall have delivered to Program Lender a duly authorized and executed Pool Supplement;
(2) Purchaser Trust shall have paid the Minimum Purchase Price to Program Lender by wire transfer of immediately available funds within twenty-four (24) hours after the Purchase Date (such Minimum Purchase Price shall be based on the best information available from the Servicer as of the Purchase Date; no later than thirty (30) days following the Purchase Date, the Purchaser Trust shall recalculate the Minimum Purchase Price to reflect adjustments for transactions (including, without limitation, additional accrued interest and payments received), and whichever party is deemed to owe the other such adjustment shall deliver such adjustment to such other party, by wire transfer of immediately available funds);
(3) FMC shall have complied with the terms of the Umbrella Agreement applicable to the Seasoned Loans included in the Pool and no default of FMC under the Umbrella Agreement relating to any Seasoned Loan Loans shall have materially impaired the rights of the Program Lender in connection with the purchase and sale of the Pool to be sold on the Purchase Date;
(4) FMC and Purchaser Trust shall have executed and delivered an Indemnification Agreement substantially in the form of Exhibit C D attached hereto, PROVIDED, HOWEVER, that an Indemnification Agreement shall not be required if FMC executes and delivers to Program Lender a certificate which states that no Offering Materials (as defined in Exhibit C D attached hereto) were distributed or provided to any securities purchaser or 18 prospective purchaser in connection with the Securitization Transaction in question;.
(5) In the event the subject Pool contains loans originated by persons and entities other than Program Lender, and its designated agent Lender (to the extent permitted under the Umbrella Agreement), each such person and entity shall have delivered to Program Lender a Co-Lender Indemnification Agreement;
(6) If the trustee or other fiduciary under the related Trust Indenture is not Wachovia Trust Company, N.A.State Street Bank and Trust, Program Lender shall have approved such trustee or fiduciary, with such approval not to have been unreasonably withheld;; and
(7) Program Lender shall have received an opinion of Thacher, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Wood ▇▇▇▇, or other securities counsel to the Purchaser Trust and FMC, addressed to Program Lender and satisfactory to Program Lender in form and substance. Such opinion shall, with respect to any securities issued by the Purchaser Trust, state that nothing has come to the attention of such counsel that would lead it to believe that the Offering Materials (as defined in the Indemnification Agreement attached hereto as Exhibit CD) in connection with the matters described therein contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that Thacher, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ may except the B of A Information (as defined in Exhibit C D attached hereto) from the scope of its opinion, and FURTHER PROVIDED, HOWEVER, that such opinion shall not be required if FMC executes and delivers to Program Lender a certificate which states that no Offering Materials (as defined in Exhibit C D attached hereto) were distributed or provided to any securities purchaser or prospective purchaser in connection with the Securitization Transaction in question; and
(8) Purchaser Trust assumes certain liabilities as set forth in Section 3.07 of this Agreement.
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