Mortgage Loan Sale Agreement

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


TABLE OF CONTENTS


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


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


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


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.


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(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


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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


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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 Mortg ...