<PAGE>
EXHIBIT 10.1
Execution
UMT LT TRUST,
Seller
and
UMT FUNDING TRUST,
Depositor
MORTGAGE LOAN SALE AGREEMENT
Dated as of January 1, 2005
Bayview Asset-Backed Securities, Series 2005-1
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TABLE OF CONTENTS
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Page
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ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage
Loans................................................................
1
Section 1.02. Delivery of
Documents.................................................................
2
Section 1.03. Review of
Documentation...............................................................
2
Section 1.04. Representations and
Warranties of the Seller..........................................
2
Section 1.05. Grant
Clause..........................................................................
4
Section 1.06. Assignment by
Depositor...............................................................
4
ARTICLE II.
GUARANTY
Section 2.01.
Guaranty..............................................................................
5
Section 2.02. Guaranty Absolute and
Unconditional...................................................
5
Section 2.03. Discharge Only Upon
Performance in Full: Reinstatement in Certain Circumstances.......
6
Section 2.04. Waiver of
Presentment.................................................................
6
Section 2.05. Waiver of Subrogation and
Contribution................................................
6
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Binding Nature of Agreement;
Assignment...............................................
7
Section 3.02. Merger and
Integration................................................................
7
Section 3.03.
Amendment.............................................................................
7
Section 3.04. Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial..........................
8
Section 3.05. Severability of
Provisions............................................................
8
Section 3.06. Indulgences; No
Waivers...............................................................
8
Section 3.07. Headings Not to Affect
Interpretation.................................................
9
Section 3.08. Benefits of
Agreement.................................................................
9
Section 3.09. Facsimile;
Counterparts...............................................................
9
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SCHEDULES
SCHEDULE A Mortgage Loan
Schedule
EXHIBITS
EXHIBIT A Mortgage Loan
Representations and Warranties
SCHEDULE I (to Exhibit A)
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
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This
MORTGAGE LOAN SALE AGREEMENT is executed by and between UMT LT
Trust
(the "Seller"), and UMT Funding Trust (the
"Depositor"), dated as of the 1st day
of January, 2005.
All
capitalized terms not defined herein shall have the same
meanings
assigned to such terms in that certain
Trust Agreement (the "Trust Agreement")
dated as of January 1, 2005, between the
Depositor and Wachovia Bank, National
Association, a national banking
association, as Trustee (the "Trustee").
W I T N E S S E T H:
--------------------
WHEREAS,
the Seller desires to sell, without recourse, all of its right,
title and interest in certain mortgage
loans identified on the Mortgage Loan
Schedule attached hereto as Schedule A
(collectively, the "Mortgage Loans"), on
a servicing-retained basis, to the
Depositor.
WHEREAS,
the Seller and the Depositor acknowledge and agree that the
Depositor will convey the Mortgage Loans to
a Trust Fund created pursuant to the
Trust Agreement and assign all of its
rights and delegate all of its obligations
hereunder to the Trustee for the benefit of
the Securityholders, and that each
reference herein to the Depositor is
intended, unless otherwise specified, to
mean the Depositor or the Trustee, as
assignee, whichever is the owner of the
Mortgage Loans from time to time.
NOW,
THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable
consideration, the receipt and adequacy
of which are hereby acknowledged, the
Seller and the Depositor agree as follows:
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section
1.01. Sale of Mortgage Loans. Concurrently with the execution
and
delivery of this Agreement, the Seller does
hereby sell, transfer, assign, set
over, deposit with and otherwise convey to
the Depositor, without recourse,
subject to Sections 1.03 and 1.04
(exclusive of servicing rights), all the
right, title and interest of the Seller in
and to the Mortgage Loans identified
on Schedule A hereto, having an aggregate
principal balance as of the Cut-off
Date of $9,700,797.12. Such conveyance
includes, without limitation, the right
to all payments of principal and interest
received or receivable, including any
prepayment premiums or penalties, on or
with respect to the Mortgage Loans on or
after January 1, 2005 (other than payments
due on or before such date), and all
such payments due after such date but
received on or prior to such date and
intended by the related Mortgagors to be
applied after such date, together with
all of the Seller's right, title and
interest in and to each related account and
all amounts from time to time credited to
and the proceeds of such account, any
REO Property and the proceeds thereof, the
Seller's rights under any Insurance
Policies relating to the Mortgage Loans,
and the Seller's security interest in
any collateral pledged to secure the
Mortgage Loans, including the Mortgaged
Properties (collectively, the "Mortgage
Assets").
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
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Concurrently with the execution hereof and in consideration of
the
Mortgage Loans and other rights conveyed
hereby, the Depositor tenders to the
Seller in cash the amount of $7,275,598.12
(the "Cash Consideration"). To the
extent the Cash Consideration does not
constitute fair market value for the
Mortgage Assets conveyed to the Depositor
hereby, the difference between the
Cash Consideration and fair market value of
such Mortgage Assets shall be deemed
a contribution of capital from the Seller
to the Depositor.
Section
1.02. Delivery of Documents.
(a) In
connection with such transfer and assignment of the Mortgage
Loans
hereunder, the Seller does hereby deliver,
or cause to be delivered, to the
Depositor (or its designee) the Mortgage
File with respect to each Mortgage
Loan.
(b) For
Mortgage Loans (if any) that have been prepaid in full after
the
Cut-off Date and prior to the Closing Date,
the Seller, in lieu of delivering
the related Mortgage Files, herewith
delivers to the Depositor an Officer's
Certificate which shall include a statement
to the effect that all amounts
received in connection with such prepayment
that are required to be deposited in
the custodial or escrow account maintained
by the Servicer for such purpose have
been so deposited.
Section
1.03. Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of
the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan
Schedule, subject to review thereof
by the Trustee or its custodian. Pursuant
to the Trust Agreement, the Trustee or
its custodian is required to review, within
45 days following the Closing Date,
each applicable Mortgage File. If in the
course of such review the Trustee or
its custodian identifies any materially
defective document, the Seller shall be
obligated to cure such defect or to
repurchase such Mortgage Loan from the Trust
Fund to the same extent and in the same
manner as the Depositor is obligated to
the Trustee and the Trust Fund under the
Trust Agreement.
Section
1.04. Representations, Warranties and Covenants of the Seller.
(a) The
Seller hereby represents and warrants to the Depositor that, as
of
the Closing Date or such other date as is
specified:
(i) The Seller is a real estate investment trust duly formed,
validly
existing and in good standing under the laws of the State of
Maryland,
and is duly qualified to do business, and is in good standing
in
each
jurisdiction in which the nature of its business requires it to be
so
qualified,
except to the extent that the failure to be so qualified would
not
reasonably be expected to have a material adverse effect on its
business
or financial condition or ability to perform its obligations
under this
Agreement. The Seller has full power and authority to conduct
its
business as currently conducted by it and to execute and deliver
this
Agreement
and perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller
and
its
performance and compliance with the terms of this Agreement have
been
duly
authorized by all necessary action on the part of the Seller.
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
2
<PAGE>
(iii) This Agreement, has been duly executed and delivered by
the
Seller and
constitutes a valid, legal and binding obligation of the
Seller,
enforceable against it in accordance with the terms hereof,
except
as the
enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting
creditors'
rights generally and by general principles of equity (whether
considered
in a proceeding or action in equity or at law).
(iv) The Seller is not in violation of, and the execution,
delivery
and
performance of this Agreement by the Seller and its compliance
with
the terms
hereof will not constitute a violation with respect to, any
existing
law or regulation or any order or decree of any court or any
order,
regulation or demand of any federal, state, municipal or
governmental agency, which violation would materially and adversely
affect
the
condition (financial or other) or operations of the Seller or
its
properties
or would have consequences that would adversely affect its
performance hereunder. The execution, delivery and performance of
this
Agreement
by the Seller and its compliance with the terms hereof will not
conflict
with, result in any breach of any of the terms and provisions
of,
or
constitute (with or without notice, lapse of time or both) a
default
under, the
governing instrument of the Seller, or any material indenture,
agreement,
mortgage, deed of trust or other instrument to which the Seller
is a party
or by which it is bound, or result in the creation or
imposition
of any lien or encumbrance upon any of its material properties
pursuant
to the terms of any such indenture, agreement, mortgage, deed
of
trust or
other instrument.
(v) No litigation, actions, proceedings or investigations are
pending
or, to the best of the Seller's knowledge, threatened against
the
Seller
which would have consequences that would prohibit its entering
into
this
Agreement or that would materially and adversely affect the
condition
(financial
or otherwise) or operations of the Seller or its properties or
would have
consequences that would adversely affect its performance
hereunder,
or the validity or enforceability of this Agreement, or prevent
the
consummation of any of the transactions contemplated by this
Agreement.
(vi) No certificate of an officer, statement furnished in writing
or
report
delivered or to be delivered pursuant to the terms hereof by
the
Seller
contains or will contain any untrue statement of a material fact
or
omits or
will omit to state any material fact necessary to make the
certificate, statement or report, in light of the circumstances in
which
it was
made or will be made, not misleading.
(vii) All actions, approvals, consents, waivers, exemptions,
variances,
franchises, orders, permits, authorizations, rights and
licenses
required to be taken, given or obtained, as the case may be, by
or from
any court or any federal, state or other governmental authority
or
agency
that are required in connection with the execution, delivery
and
performance by the Seller of this Agreement, have been duly taken,
given
or
obtained, as the case may be, are in full force and effect on the
date
hereof,
are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within
which
any appeal
therefrom may be taken or review thereof may be obtained has
expired or
no review thereof may be obtained or appeal therefrom taken,
and are
adequate to authorize the consummation of the transactions
contemplated by this
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
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<PAGE>
Agreement
on the part of the Seller and the performance by the Seller of
its
obligations under this Agreement.
(viii) The Seller is conveying to the Depositor its entire
interest
in the
Mortgage Loans, other than retained servicing rights, free and
clear of
any Adverse Claim.
(ix) The Seller is solvent and the sale of the Mortgage Loans
will
not cause the Seller to
become insolvent. The sale of the Mortgage Loans
is not
undertaken with the intent to hinder, delay or defraud any of
the
Seller's
creditors.
(x) The transfer of the Mortgage Loans to the Depositor at the
Closing
Date will be treated by the Seller for financial accounting and
reporting
purposes as a sale of assets.
(xi) The transactions contemplated by this Agreement are in the
ordinary
course of business of the Seller.
(xii) With respect to each Mortgage Loan, the Seller hereby makes
to
the
Depositor, as of the Closing Date or such other date as is
specified,
each
representation and warranty set forth in Exhibit A hereto.
(b) It is
understood and agreed that the representations and warranties
set forth herein and the obligations of the
Seller set forth in this Section
survive delivery of the Mortgage Files and
the Assignment of Mortgage of each
Mortgage Loan to the Depositor. Upon
discovery by either the Seller or the
Depositor of a breach of any of the
foregoing representations and warranties
contained in Section 1.04(a) that adversely
and materially affects the value of
the related Mortgage Loan, the party
discovering such breach shall give prompt
written notice to the other party. Within
90 days of the discovery of any such
breach, the Seller shall either (a) cure
such breach in all material respects or
(b) repurchase such Mortgage Loan or any
property acquired in respect thereof
from the Depositor at the applicable
Purchase Price.
(c) In
addition to its repurchase obligation under this Section, the
Seller shall indemnify the Depositor and
each assignee of the Depositor,
including the Trust Fund and the Trustee,
and hold them harmless against any
losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal
fees and related costs, judgments, and
other costs and expenses resulting from
any claim, demand, defense or assertion
based on or grounded upon, or resulting
from, a breach by the Seller of its
representations or warranties contained in
this Agreement. It is understood and agreed
that the obligations of the Seller
set forth in this Section to cure a breach,
repurchase a defective Mortgage Loan
and indemnify the Depositor and each
assignee of the Depositor, including the
Trust Fund and the Trustee, as provided in
this Section constitute the sole
remedies of the Depositor and each assignee
of the Depositor, including the
Trust Fund and the Trustee, with respect to
a breach of the Seller's
representations and warranties contained in
this Agreement.
(d)
Covenants. Neither the Seller nor any of its Affiliates will
directly
solicit any Mortgagor to refinance the
related Mortgage Loan. For the purposes
of the foregoing, the Seller or any
Affiliate thereof shall not be deemed to
directly solicit any Mortgagor if the
Seller or such
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
4
<PAGE>
Affiliate responds to a request from the
Mortgagor regarding a refinancing or if
the Mortgagor receives marketing materials
that are generally disseminated.
Section
1.05. Grant Clause. It is intended that the conveyance of the
Seller's right, title and interest in and
to Mortgage Assets conveyed pursuant
to this Agreement shall constitute, and
shall be construed as, a sale of such
property and not a grant of a security
interest to secure a loan. However, if,
despite the express intent of the parties
hereto, such conveyance is deemed to
be in respect of a loan, it is intended
that: (i) the rights and obligations of
the parties shall be established pursuant
to the terms of this Agreement; (ii)
the Seller hereby grants to the Depositor a
first priority security interest in
all of the Seller's right, title and
interest in, to and under, whether now
owned or hereafter acquired, such Mortgage
Assets; and (iii) this Agreement
shall constitute a security agreement under
applicable law.
Section
1.06. Assignment by Depositor. The Depositor shall have the
right
without the consent of the Seller or United
Mortgage Trust ("United"), to
assign, in whole or in part, its interest
under this Agreement with respect to
the Mortgage Loans to the Trustee, and the
Trustee then shall succeed to all
rights of the Depositor under this
Agreement. All references to the Depositor in
this Agreement shall be deemed to include
its assignee or designee, specifically
including the Trustee.
ARTICLE II.
THE GUARANTY
Section
2.01. Guaranty. United hereby unconditionally and irrevocably
guarantees, as primary obligor, to the
Depositor and each assignee of the
Depositor, including the Trustee and the
Trust Fund, the full and punctual
payment of all amounts payable by, and the
full and punctual performance of all
other obligations of, UMT LT under this
Agreement and the Trust Agreement (the
"Guaranteed Obligations"). Upon failure by
UMT LT to pay fully and punctually
any such amount or to perform fully and
punctually any such other obligation,
United shall forthwith immediately upon
demand pay the amount not so paid and
perform or cause to be performed such other
obligation, in each case at the
place, in the manner and at the time
specified in this Agreement. This guarantee
is a guarantee of payment and performance
and not of collection.
Section
2.02. Guaranty Absolute and Unconditional. The obligations of
United hereunder are unconditional and
absolute and, without limiting the
generality of the foregoing, shall not be
released, discharged or otherwise
affected by UMT LT as a result of:
(a) Any
extension, renewal, settlement, compromise, waiver or release
in
respect of any Guaranteed Obligation or any
related document in connection with
the transactions contemplated hereby or
thereby, whether by operation of law or
otherwise;
(b) Any
modification or amendment of or supplement to this Agreement or
the Trust Agreement;
126032 Bayview 2005-1
Mortgage Loan Sale Agreement
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<PAGE>
(c) Any
change in the legal existence, structure or ownership of UMT LT
or
any insolvency, bankruptcy, reorganization
or other similar proceeding affecting
UMT LT or its assets and properties or any
resulting release or discharge of any
Guaranteed Obligation;
(d) The
existence of any claim, set-off, defense or other right which
United may have at any time against UMT LT
or any other Person, whether in
connection herewith or any unrelated
transactions; provided, however, that
nothing herein shall prevent the assertion
of any such claim, set-off, defense
or other right by separate suit or
compulsory counterclaim;
(e) Any
invalidity or unenforceability relating to or against UMT LT
for
any reason of either this Agreement or the
Trust Agreement, or any provision of
applicable law purporting to prohibit the
performance of any Guaranteed
Obligation;
(f) Any
other act or omission to act or delay of any kind by UMT LT; or
(g) Any
other circumstance whatsoever which might, but for the
provisions
of this paragraph, constitute a legal or
equitable discharge of United's
obligations hereunder; provided, however,
that United shall not be deemed to
have waived any counterclaim or defense
based on a breach of representation,
warranty or covenant of the Depositor
hereunder that woul
