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
----
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)
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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").
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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.
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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
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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 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;
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(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 would have been a defense
to the failure of UMT LT to make any payment or perform any obligation in
respect of which a claim is made under this Article II. The guarantee provided
in this Article II shall encompass any modification or amendment of, or
supplement to, this Agreement or the Trust Agreement.
Section 2.03. Discharge Only Upon Performance in Full; Reinstatement in
Certain Circumstances. United's obligations hereunder shall remain in full force
and effect for so long as UMT LT has any Guaranteed Obligations. If at any time
any payment of any amount payable by UMT LT under this Agreement or the Trust
Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of UMT LT, United's obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
Section 2.04. Waiver of Presentment. United irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action first be taken by any Person
against UMT LT or any other Person, including that any action first be taken to
pursue other remedies or to mitigate damages resulting from a failure by UMT LT
to perform any Guaranteed Obligation, prior to seeking performance by United of
its obligations hereunder.
Section 2.05. Waiver of Subrogation and Contribution. United shall not
enforce or otherwise exercise any right of subrogation to any of the rights of
any other Person or any indemnified Person against UMT LT and, notwithstanding
anything to the contrary contained herein, United hereby waives all rights of
subrogation (whether contractual, under Section 509 of the U.S. Bankruptcy Code,
at law or in equity or otherwise) to the claims of the Depositor, the Trustee or
the Trust Fund against UMT LT, and all contractual, statutory or legal or
equitable rights of contribution, reimbursement, indemnification and similar
rights and "claims" (as that
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term is defined in the U.S. Bankruptcy Code) which United might now have or
hereafter acquire against UMT LT that arise from the existence or performance of
United's obligations hereunder.
ARTICLE III.
MISCELLANEOUS PROVISIONS
Section 3.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The Seller shall not assign its
rights or delegate its obligations under this Agreement without the prior
written consent of the Depositor.
Section 3.02. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 3.03. Amendment. (a) This Agreement may be amended from time to
time by the Seller and the Depositor, with notice to but without the consent of
any of the Holders, (i) to correct any mistake or cure any ambiguity, (ii) to
cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Securities, the Trust
Fund or this Agreement in any private placement memorandum or other offering
document related to the contemporaneous offer and sale of the Securities or
interests therein or obligations secured thereby or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to obtain or maintain a rating for a Class of Securities from a nationally
recognized statistical rating organization, or (iv) to make any other provisions
with respect to matters or questions arising under this Agreement that are not
materially inconsistent with the provisions hereof, provided that such action
will not adversely affect in any material respect the interests of any Holder as
evidenced by an Opinion of Counsel. Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel (at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this paragraph and all
conditions precedent have been met.
(b) This Agreement may also be amended from time to time by the Seller and
the Depositor with the consent of the Holders of not less than 66-2/3% of the
aggregate Percentage Interests of each Class of Securities affected thereby for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders; provided, however, that no such amendment may (i) reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Security, without the consent
of the Holder of such Security or (ii) reduce the aforesaid percentage of
Percentage Interest of Securities of each Class, the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
100% of the aggregate Percentage Interests of each Class of Securities affected
thereby.
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(c) Promptly after the execution of any such amendment, the Seller shall
furnish written notification of the substance of such amendment to each Holder
and the Trustee.
(d) It shall not be necessary for the consent of Holders under this
Section 3.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 3.04. Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(b) THE SELLER AND THE DEPOSITOR HEREBY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, SOLELY WITH
RESPECT TO MATTERS ARISING UNDER THIS AGREEMENT, AND EACH WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION
11.07 OF THE TRUST AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON RECEIPT THEREOF. THE SELLER AND THE DEPOSITOR EACH HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE SELLER AND THE DEPOSITOR TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY SUCH PERSON TO
BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE SELLER AND THE DEPOSITOR EACH HEREBY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY
DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 3.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the
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remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
Section 3.06. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
Section 3.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 3.08. Benefits of Agreement. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties to this Agreement and
their successors hereunder, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement.
Section 3.09. Facsimile; Counterparts. This Agreement may be executed by
facsimile and in one or more counterparts, each of which shall be deemed to be
an original, and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the Closing
Date.
UMT LT TRUST
By: ______________________________
Name:
Title:
UMT FUNDING TRUST
By: ______________________________
Name:
Title:
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Solely for purposes of Section 1.06 and Article II,
accepted and agreed to by:
UNITED MORTGAGE TRUST
By: ________________________________________
Name:
Title:
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SCHEDULE A
MORTGAGE LOAN SCHEDULE
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EXHIBIT A
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) The Seller has good and marketable title to and is the sole owner and
holder of the Mortgage Loan.
(2) Immediately prior to the sale, transfer and assignment to the
Depositor, the Mortgage Note and the Mortgage were not subject to an
assignment or pledge, other than with respect to which a release has
been obtained in connection with such transfer, and the Seller has full
right and authority to sell and assign the Mortgage Loan.
(3) The Seller is transferring such Mortgage Loan to the Depositor free and
clear of any and all liens, pledges, charges or security interests of
any nature encumbering the Mortgage Loans, other than servicing rights
retained by the Seller.
(4) The information set forth on the Mortgage Loan Schedule is true and
correct in all material respects as of the Cut-off Date or such other
date as may be indicated in such schedule.
(5) The Mortgage Loan has been originated, acquired, serviced, collected
and otherwise dealt with in compliance in all material respects with
all applicable federal, state and local laws (including, without
limitation, all applicable predatory and abusive lending laws) and
regulations and the terms of the related Mortgage Note and Mortgage. In
particular, no law relating to servicing, collection or notification
practices and no law relating to origination practices, has been
violated in connection with any Mortgage Loan transferred to the
Depositor pursuant to this Agreement, including, without limitation,
truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws, the Fair
Credit Reporting Act, the Federal Truth-in-Lending Act and Regulation
Z, the Federal Equal Credit Opportunity Act and Regulation B, the Fair
Housing Act, the Real Estate Settlement Procedures Act and Regulation
X, the Federal Debt Collection Practices Act, the Home Mortgage
Disclosure Act and Regulation C of the Community Reinvestment Act, any
similar municipal, state or federal law or regulation or interpretation
thereof affecting or regarding the solicitation, origination, servicing
or collection of the Mortgage Loans, or any federal or state usury law
or regulation. All disclosure requirements were satisfied prior to the
closing of each Mortgage Loan. If a Mortgage Loan refinanced a prior
mortgage loan, the Mortgagor was provided with all required notices and
rescission rights. No Mortgage Loan is a High Cost Loan or Covered
Loan, as applicable (as such terms are defined in the then current
Standard & Poor's LEVELS(R) Glossary which is now Version 5.6 Revised,
Appendix E) and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. With
respect to Mortgage Loans subject to the law of the State of New
Jersey, no Mortgage Loan is a High - Cost Home Loan, as defined in the
New Jersey Home Ownership Security Act of 2002. With respect to
Mortgage Loans subject to the law of the State of Massachusetts, no
Mortgage Loan is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act of 2003. No Mortgage
Loan is subject to the Kentucky House ▇▇▇▇
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Mortgage Loan Sale Agreement
287, the New Mexico Home Loan Protection Act or New York Banking Law
Section 6-1, as amended. With respect to Mortgage Loans subject to the
law of the State of Texas, each Mortgage Loan was originated in
accordance with the requirements of the Texas Constitution, including,
but not limited to, Article XVI Section 50, and any rules and
regulations issued thereunder, and in conformity to Title 79, Texas
Civil Statutes and in Titles 3 and 4 of the Texas Finance Code,
including, but not limited to, Chapter 343 of Title 4 of the Texas
Finance Code.
(6) The related Mortgage Note and Mortgage are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(7) The related Mortgage is a valid and enforceable senior or junior lien,
as stated in the Mortgage Loan Schedule, on the related Mortgaged
Property, which Mortgaged Property is free and clear of all
encumbrances and liens (including mechanics liens that are not insured
against by the related title insurance policy) having priority over the
senior or junior lien (other than, in the case of the junior lien
Mortgage Loans, the related senior lien), as applicable, of the
Mortgage except for: (i) liens for real estate taxes and assessments
not yet due and payable; (ii) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the
date of recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally or
specifically reflected or considered in the lender's title insurance
policy delivered to the originator of the Mortgage Loan and (iii) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by such Mortgage.
(8) Any security agreement, chattel mortgage or equivalent document related
to such Mortgage Loan establishes and creates a valid and enforceable
lien on the property described therein.
(9) Except with respect to the Mortgage Loans identified on the attached
Schedule I to this Exhibit A, no payment due on any Mortgage Loan was
more than 59 days past due as of the Cut-off Date. The payment
delinquency status of each Mortgage Loan identified on the Mortgage
Loan Schedule is as indicated thereon.
(10) Neither the Seller nor any Affiliate of the Seller has advanced funds,
or induced, solicited or received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any
amount required under the Mortgage Loan.
(11) Neither the Seller nor any Affiliate of the Seller has impaired,
waived, altered or modified the related Mortgage or Mortgage Note in
any material respect, or satisfied, canceled, rescinded or subordinated
such Mortgage or Mortgage Note in whole or in part or released all or
any material portion of the Mortgaged Property from the lien of the
Mortgage, or executed any instrument of release, cancellation,
rescission or satisfaction
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Mortgage Loan Sale Agreement
of the Mortgage Note or Mortgage, in each case other than pursuant to a
written agreement or instrument contained in the Mortgage File.
(12) The Mortgage has not been satisfied, canceled or subordinated, in
whole, or rescinded, and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part (except for a
release that does not materially impair the security of the Mortgage
Loan or a release the effect of which is reflected in the Loan-to-Value
Ratio or Combined Loan-to-Value Ratio, as applicable, for the Mortgage
Loan as set forth in the Mortgage Loan Schedule).
(13) To the best of the Seller's knowledge, no condition exists with respect
to a Mortgage Loan that could give rise to any right of rescission, set
off, counterclaim or defense including, without limitation, the defense
of usury, and no such right has been asserted.
(14) To the best of the Seller's knowledge, there is no proceeding pending
for the total or partial condemnation of any Mortgaged Property and
there are no eminent domain proceedings pending affecting any Mortgaged
Property.
(15) Each Mortgage Loan is covered by either (i) a mortgage title insurance
policy or other generally acceptable form of insurance policy customary
in the jurisdiction where the Mortgaged Property is located or (ii) if
generally acceptable in the jurisdiction where the Mortgaged Property
is located, an attorney's opinion of title given by an attorney
licensed to practice law in the jurisdiction where the Mortgaged
Property is located. All of the Seller's rights under such policies,
opinions or other instruments shall be transferred and assigned to the
Depositor upon sale and assignment of the Mortgage Loans hereunder. The
title insurance policy has been issued by a title insurer licensed to
do business in the jurisdiction where the Mortgaged Property is
located, insuring the original lender, its successor and assigns, as to
the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan, subject to the exceptions contained in
such policy. The Seller is the sole insured of such mortgagee title
insurance policy, and such mortgagee title insurance policy is in full
force and effect and will be in force and effect upon the consummation
of the transactions contemplated by this Agreement. Neither the Seller
nor any Affiliate of the Seller has made, and neither the Seller nor
any Affiliate of the Seller has any knowledge of, any claims under such
mortgagee title insurance policy. Neither the Seller nor any Affiliate
of the Seller is aware of any action by a prior holder and neither the
Seller nor any Affiliate of the Seller has done, by act or omission,
anything which could impair the coverage or enforceability of such
mortgagee title insurance policy or the accuracy of such attorney's
opinion of title.
(16) Other than delinquency in payment, there is no material default,
breach, violation or event of acceleration existing under the related
Mortgage or the related Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default, breach, violation or event
of acceleration. Neither the Seller nor any Affiliate of the Seller has
waived any material default, breach, violation or event of
acceleration, other than such written waivers as are contained in the
related Mortgage File.
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(17) There are no delinquent taxes, ground rents, water charges, sewer
rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding
charges, affecting the related Mortgaged Property.
(18) Except as previously disclosed in writing to the Depositor and the
Trustee by the Seller, no material litigation relating to the Mortgage
Loan is pending.
(19) The Mortgage Loan obligates the mortgagor thereunder to maintain a
hazard insurance policy ("Hazard Insurance") in an amount at least
equal to the maximum insurable value of the improvements and, if it was
in place at origination of the Mortgage Loan, flood insurance, at the
mortgagor's cost and expense. If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management
Agency ("FEMA") as having special flood hazards, a flood insurance
policy is in effect which met the requirements of FEMA at the time such
policy was issued. The Mortgage obligates the Mortgagor to maintain the
Hazard Insurance and, if applicable, flood insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. The Mortgaged Property is
covered by Hazard Insurance.
(20) The Mortgage Note is not and has not been secured by any collateral
except the lien of the corresponding Mortgage and the security interest
of any applicable security agreement or chattel mortgage.
(21) The Mortgage contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the
security provided thereby, including (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale or judicial
foreclosure and (ii) otherwise by judicial foreclosure or, if
applicable, non-judicial foreclosure. Except as previously disclosed in
writing to the Depositor by the Seller, the Mortgaged Property is not
subject to any bankruptcy proceeding or foreclosure proceeding and the
Mortgagor has not filed for protection under applicable bankruptcy
laws. There is no homestead or other exemption available to the
Mortgagor that would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage. In
the event the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Depositor to the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the related Mortgagor. The Mortgagor has not
notified the Seller nor any Affiliate of the Seller of, and the neither
the Seller nor any Affiliate of the Seller has any knowledge of, any
relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act or similar state law.
(22) The Mortgaged Property, normal wear and tear excepted, is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty so as to affect materially and adversely the value of
the Mortgaged Property as security for the
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Mortgage Loan or the use for which the premises were intended, and, no
proceeding is pending or threatened for the total or partial
condemnation of the Mortgaged Property.
(23) As of the Closing Date, to the best of the Seller's knowledge, no
Mortgaged Property is subject to an environmental hazard that would
have to be eliminated under applicable law before the sale of, or which
could otherwise affect the marketability of, such Mortgaged Property or
which would subject the owner or operator of such Mortgaged Property or
a lender secured by such Mortgaged Property to liability under law, and
there are no liens which relate to the existence of any clean-up of a
hazardous substance (and no circumstances exist that under law would
give rise to any such lien) affecting the Mortgaged Property which are
or may be liens prior to or on a parity with the lien of the related
mortgage.
(24) Each Mortgage File contains an appraisal or a broker's price opinion of
the Mortgaged Property indicating an appraised value, or documentation
of the sales price of such Mortgaged Property, equal to the appraised
value identified for such Mortgaged Property on the Mortgage Loan
Schedule.
(25) No improvements on the related Mortgaged Property encroach on adjoining
properties (and in the case of a condominium unit, such improvements
are within the project with respect to that unit), and no improvements
on adjoining properties encroach upon the Mortgaged Property unless
there exists in the Mortgage File a title policy with endorsements
which insure against losses sustained by the insured as a result of
such encroachments, or such encroachments do not have a material
adverse effect on the related Mortgage Loan.
(26) The Mortgage Loan bears interest at the Mortgage Rate and the Mortgage
Note does not permit negative amortization.
(27) With respect to escrow deposits, if any, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements
for repayment thereof have not been made. Except as set forth on the
Mortgage Loan Schedule, no escrow deposits or escrow advances or other
charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note.
(28) No Mortgage Loan contains provisions pursuant to which Monthly Payments
will be: (i) paid or partially paid with funds deposited in any
separate account established by the Seller or any Affiliate of the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (ii) paid
by any source other than the Mortgagor, or (iii) contains any other
similar provisions which may constitute a "buydown" provision. No
Mortgage Loan is a graduated payment mortgage loan and no Mortgage Loan
has a shared appreciation or other contingent interest feature.
(29) To the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law.
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(30) The full original principal amount of every Mortgage Loan has been
fully disbursed or credited to the Mortgagor, there is no requirement
for any lender to make future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been
satisfied. All costs, fees and expenses incurred in making, closing or
recording the Mortgage Loans were paid. There is no obligation on the
part of Seller, or of any other party, to make supplemental payments in
addition to those made by the Mortgagors. No Mortgagor is entitled to
any refund of any amounts paid or due to any lender pursuant to any
Mortgage Note.
(31) To the best of the Seller's knowledge, there are no mechanics' or
similar liens or claims that have been filed for work, labor or
material (and no rights are outstanding that under law could give rise
to such lien) affecting the related Mortgaged Property that are or may
be liens prior to, or equal or coordinate with, the lien of the related
Mortgage, except those which are insured against by the title insurance
policy referred to in item (15) above.
(32) The Loan Collateral with respect to each Mortgage Loan is real property
owned by the related Mortgagor in fee simple, subject only to marital
property rights of spouses, if any.
(33) 100% of the Mortgage Loans (by Principal Balance as of the Cut-off
Date) are first lien Mortgage Loans having, in each case, a
Loan-to-Value Ratio of less than 100%.
(34) With respect to any Mortgage Loan which provides for an adjustable
interest rate, all rate adjustments have been performed in accordance
with the terms of the related Mortgage Note, subsequent modifications,
if any, and all applicable laws.
The representations and warranties set forth in this Exhibit A do not
constitute certifications by the Seller as to the truth or accuracy of such
representations and warranties. The parties hereto acknowledge that certain of
the foregoing representations and warranties may be inaccurate; nevertheless,
the parties hereto intend that the risk of any such inaccuracy be allocated to
the Seller. Accordingly, any breach of the substance of any representation or
warranty set forth in this Exhibit A shall, if such breach materially and
adversely affects the value of any Mortgage Loan or the interest therein of any
Securityholder, constitute a breach of such representation or warranty without
regard to the knowledge of the Seller, and shall be subject to the remedies
available under this Agreement.
The representations and warranties set forth above shall survive the
Closing Date.
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SCHEDULE I
(to Exhibit A)
None.
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