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EXHIBIT 10.3
EXECUTION
PURCHASE AGREEMENT
January 26, 2005
United Mortgage Trust
5740 Prospect Ave.
Suite 1000
Dallas, Texas 75206
UMT Funding Trust
5740 Prospect Ave.
Suite 1000
Dallas, Texas 75206
Ladies and Gentlemen:
1.
Introduction. Bayview Financial, L.P., a Delaware limited
partnership
(the "Purchaser"), proposes to purchase
from UMT Funding Trust, a Maryland real
estate investment trust (the "Depositor"),
the "Class A Notes" of the Bayview
Asset-Backed Securities, Series 2005-1. The
Class A Notes, together with the
Class B Certificates of the same series
(the "Class B Certificates," and
together with the Class A Notes, the
"Securities") are to be issued pursuant to
a trust agreement (the "Trust Agreement")
dated as of January 1, 2005, between
the Depositor and Wachovia Bank, National
Association, as trustee (the
"Trustee"). The Securities will evidence
beneficial interests in the Trust Fund
(as defined in the Trust Agreement)
consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") sold to the
Depositor by UMT LT Trust (the
"Seller") and transferred to the Trustee by
the Depositor. The purchase and
transfer of the Mortgage Loans and the
issuance of the Securities are referred
to herein as the "Transaction," and the
Trust Agreement, Mortgage Loan Sale
Agreement and Servicing Agreement are
referred to herein as the "Transaction
Documents."
Capitalized terms used and not defined herein have the meanings
assigned
to them in the Trust Agreement.
2.
Purchase, Sale, Payment and Delivery of the Class A Notes. On the
basis
of the representations and warranties
herein contained and subject to the terms
and conditions herein set forth, the
Depositor agrees to sell to the Purchaser,
and the Purchaser agrees to purchase from
the Depositor, 100% of the Class A
Notes in consideration of payment of the
purchase price of $[[-]].
Delivery
of and payment for the Class A Notes will be made at the
offices
of McKee Nelson LLP, 1919 M Street, N.W.,
Washington, D.C. 20036, on January 31,
2005, or at such other time as the
Purchaser and the Depositor shall otherwise
agree upon, such time being herein
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referred to as the "Closing Date." Delivery
of the Class A Notes shall be made
by the Depositor to the Purchaser against
payment of the purchase price
specified by the parties in immediately
available funds wired to such bank as
may be designated by the Depositor, or paid
by such other manner as may be
agreed upon by the Depositor and the
Purchaser. The Class A Notes will be in
fully registered form in a single note and
registered in such name as the
Purchaser requests in writing at least
three business days prior to the Closing
Date.
3.
Representations, Warranties and Covenants of United Mortgage
Trust
("United") and the Depositor.
(a) In
connection with the proposed sale of the Class A Notes, United
hereby incorporates each of the
representations and warranties made by the
Seller in Section 1.04 of the Mortgage Loan
Sale Agreement as if such
representations and warranties were fully
set forth herein, restates such
representations and warranties for the
benefit of the Purchaser, and further
represents and warrants to the Purchaser
that, as of the date hereof and as of
the Closing Date:
(i) The issuance and sale of the Class A Notes have been duly
authorized
by all requisite action on the part of the Depositor, and when
(i)
executed and authenticated by the Trustee as specified in the
Trust
Agreement
and (ii) delivered to the Purchaser, the Class A Notes will be
duly and
validly issued and outstanding and entitled to the benefits of
the Trust
Agreement.
(ii) At the time of execution and delivery of the Mortgage Loan
Sale
Agreement
by the Seller and the Depositor, the Depositor will have
acquired
good title to the Mortgage Loans (other than the servicing
rights
thereto),
free and clear of any security interest, mortgage, pledge,
lien,
encumbrance, claim or equity, and, upon delivery to the Purchaser
of the
Class A
Notes, the Purchaser will have good title to the Class A Notes
free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) All information disclosed by United to the Purchaser
pertaining
to the Mortgage Loans is true and correct in all material
respects,
and United has disclosed to the Purchaser all information known
to United
that could materially affect the value of the Mortgage Loans.
(iv) All information disclosed by the Seller to the Purchaser
pertaining
to the Mortgage Loans is true and correct in all material
respects,
and the Seller has disclosed to the Purchaser all information
known to
the Seller that could materially affect the value of the
Mortgage
Loans.
(v) All loan files, diskettes, tapes or reports provided by
United
or the
Seller to the Purchaser in connection with the Transaction
contemplated hereby are true and correct in all material
respects.
(vi) The Depositor is not in default under any material
provisions
of any
agreement, contract, instrument or indenture to which the
Depositor
is a party
or by which it is bound, nor has any event occurred which, with
notice or
lapse of time or both, would constitute a default under any
such
agreement,
contract, instrument or indenture,
126809 Bayview 2005-1
Class A Purchase Agreement
2
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which
event of default could have a material adverse effect on the
performance by the Depositor of its obligations under the
Transaction
Documents.
(b) In
connection with the proposed sale of the Class A Notes, the
Depositor hereby incorporates each of the
representations and warranties set
forth in Section 2.03 of the Trust
Agreement as if such representations and
warranties were fully set forth herein,
restates such representations and
warranties for the benefit of the
Purchaser, and further represents and warrants
to the Purchaser that, as of the date
hereof and as of the Closing Date:
(i) The issuance and sale of the Class A Notes have been duly
authorized
by all requisite action on the part of the Depositor, and when
(i)
executed and authenticated by the Trustee as specified in the
Trust
Agreement
and (ii) delivered to the Purchaser, the Class A Notes will be
duly and
validly issued and outstanding and entitled to the benefits of
the Trust
Agreement.
(ii)
At the time of execution and delivery of the Trust Agreement by
the
Depositor and the Trustee, the Trustee will have acquired good
title
to the
Mortgage Loans on behalf of the Trust Fund, free and clear of
any
security
interest, mortgage, pledge, lien, encumbrance, claim or equity,
and, upon
delivery to the Purchaser of the Class A Notes, the Purchaser
will have
good title to the Class A Notes free and clear of any security
interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iii) All information disclosed by the Depositor to the
Purchaser
pertaining
to the Mortgage Loans is true and correct in all material
respects,
and the Depositor has disclosed to the Purchaser all
information
that could
reasonably be expected to materially affect the value of the
Mortgage
Loans.
(iv) All loan files, diskettes, tapes or reports provided by
the
Depositor
to the Purchaser in connection with the Transaction
contemplated
hereby are
true and correct in all material respects.
(v) The Depositor is not in default under any material provisions
of
any
agreement, contract, instrument or indenture to which the Depositor
is
a party or
by which it is bound, nor has any event occurred which, with
notice or
lapse of time or both, would constitute a default under any
such
agreement,
contract, instrument or indenture, which event of default could
have a
material adverse effect on the performance by the Depositor of
its
obligations under the Transaction Documents.
4.
Conditions to Purchaser's Obligations. The obligation of the
Purchaser
to purchase the Class A Notes will be
subject to (i) the accuracy of the
representations and warranties of United
and the Depositor as of the date hereof
and the Closing Date, (ii) the full
performance by United and the Depositor of
their obligations hereunder and (iii) the
following additional conditions
precedent:
(a) The Purchaser shall have received the opinion of counsel to
the
Purchaser,
dated as of the Closing Date, addressed to the Purchaser, in
form and
substance reasonably satisfactory to the Purchaser.
126809 Bayview 2005-1
Class A Purchase Agreement
3
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(b) The Purchaser shall have received the opinion of counsel to
the
Trustee,
dated as of the Closing Date, addressed to the Purchaser, in
form
and
substance reasonably satisfactory to counsel to the Purchaser.
(c) The Purchaser shall have received the opinion(s) of counsel
to
the Seller
and the Depositor, dated as of the Closing Date, addressed to
the
Purchaser, in form and substance reasonably satisfactory to counsel
to
the
Purchaser.
(d) The Purchaser shall have received the opinion of counsel to
the
Seller
regarding sale of the Mortgage Loans, dated as of the Closing
Date,
in form
and substance reasonably satisfactory to counsel to the
Purchaser.
(e) The Purchaser shall have received the opinion(s) of counsel
to
United,
the Seller and the Depositor regarding nonconsolidation, dated
as
of the
Closing Date, in form and substance reasonably satisfactory to
counsel to the
Purchaser.
(f) The Purchaser shall have received the certificate of United
regarding
various corporate matters, dated as of the Closing Date, in
form
and
substance reasonably satisfactory to counsel to the Purchaser.
(g) The Purchaser shall have received the certificate of the
Seller
regarding
various corporate matters, dated as of the Closing Date, in
form
and
substance reasonably satisfactory to counsel to the Purchaser.
(h) The Purchaser shall have received the certificate of the
Depositor
regarding authorization, issuance and sale of the
