Exhibit 4.2
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SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated September 30, 2004
(the "Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor"), and Deutsche Bank National Trust Company as trustee (the
"Trustee") of the EquiFirst Mortgage Loan Trust 2004-2, Asset-Backed
Certificates, Series 2004-2 and pursuant to the Pooling and Servicing Agreement,
dated as of June 15, 2004 (the "Pooling and Servicing Agreement"), among the
Depositor, Saxon Mortgage Services, Inc. as servicer and the Trustee, the
Depositor and the Trustee agree to the sale by the Depositor and the purchase by
the Trustee in trust, on behalf of the Trust, of the Mortgage Loans listed on
the attached Schedule of Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
Section 1. Conveyance of Subsequent Mortgage Loans.
(a) The Depositor does hereby sell, transfer, assign, set over and convey
to the Trustee in trust, on behalf of the Trust, without recourse, all of its
right, title and interest in and to the Subsequent Mortgage Loans, and including
all amounts due on the Subsequent Mortgage Loans after the related Subsequent
Cut-off Date, and all items with respect to the Subsequent Mortgage Loans to be
delivered pursuant to Section 2.01 of the Pooling and Servicing Agreement;
provided, however that the Depositor reserves and retains all right, title and
interest in and to amounts due on the Subsequent Mortgage Loans on or prior to
the related Subsequent Cut-off Date. The Depositor, contemporaneously with the
delivery of this Agreement, has delivered or caused to be delivered to the
Trustee each item set forth in Section 2.01 of the Pooling and Servicing
Agreement. The transfer to the Trustee by the Depositor of the Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule shall be absolute and is
intended by the Depositor, the Servicer, the Trustee and the Certificateholders
to constitute and to be treated as a sale by the Depositor to the Trust Fund.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under the Subsequent Mortgage Loan
Purchase Agreement, dated the date hereof, between the Depositor as purchaser
and the Servicer as seller, to the extent of the Subsequent Mortgage Loans.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Depositor hereby confirms that each of the conditions and the
representations and warranties set forth in Section 2.08 of the Pooling and
Servicing Agreement are satisfied as of the date hereof.
(b) All terms and conditions of the Pooling and Servicing Agreement are
hereby ratified and confirmed; provided, however, that in the event of any
conflict, the provisions of this Instrument shall control over the conflicting
provisions of the Pooling and Servicing Agreement.
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Section 3. Recordation of Instrument.
To the extent permitted by applicable law, this Instrument, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Servicer
at the Certificateholders' expense on direction of the related
Certificateholders, but only when accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders or is necessary for the administration or servicing of
the Mortgage Loans.
Section 4. Governing Law.
This Instrument shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section 5. Counterparts.
This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. Successors and Assigns.
This Instrument shall inure to the benefit of and be binding upon the
Depositor and the Trustee and their respective successors and assigns.
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FINANCIAL ASSET SECURITIES CORP.
By:___________________________________
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for EquiFirst Mortgage Loan
Trust 2004-2, Asset-Backed
Certificates, Series 2004-2
By:___________________________________
Name:
Title:
Attachments
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A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
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ATTACHMENT A
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ADDITIONAL TERMS OF SALE
A. General
1. Subsequent Cut-off Date: September 1, 2004
2. Subsequent Transfer Date: September 30, 2004
3. Aggregate Stated Principal Balance of the Subsequent Mortgage
Loans as of the Subsequent Cut-off Date: $109,196,690.09
4. Purchase Price: 100.00%
B. The obligation of the Trust Fund to purchase a Subsequent Mortgage Loan
on any Subsequent Transfer Date is subject to the satisfaction of the conditions
set forth in the immediately preceding paragraph and the accuracy of the
following representations and warranties with respect to each such Subsequent
Mortgage Loan determined as of the applicable Subsequent Cut-off Date: (i) such
Subsequent Mortgage Loan may not be 30 or more days delinquent as of the last
day of the month preceding the Subsequent Cut-off Date; (ii) the original term
to stated maturity of such Subsequent Mortgage Loan will not be less than 120
months and will not exceed 360 months; (iii) the Subsequent Mortgage Loan may
not provide for negative amortization; (iv) such Subsequent Mortgage Loan will
not have a loan-to-value ratio greater than 100.00%; (v) such Subsequent
Mortgage Loans will have, as of the Subsequent Cut-off Date, a weighted average
term since origination not in excess of 6 months; (vi) such Subsequent Mortgage
Loan, shall have a Mortgage Rate that is not less than 4.300% per annum or
greater than 12.000% per annum; (vii) such Subsequent Mortgage Loan must have a
first payment date occurring on or before November 1, 2004 and will include 30
days' interest thereon; (viii) if the Subsequent Mortgage Loan is an
Adjustable-Rate Mortgage Loan, the Subsequent Mortgage Loan will have a Gross
Margin not less than 4.550% per annum; (ix) if the Subsequent Mortgage Loan is
an Adjustable-Rate Mortgage Loan, the Subsequent Mortgage Loan will have a
Maximum Mortgage Rate not less than 10.300% per annum; (x) if the Subsequent
Mortgage Loan is an Adjustable-Rate Mortgage Loan, the Subsequent Mortgage Loan
will have a Minimum Mortgage Rate not less than 4.300% per annum and (xi) such
Subsequent Mortgage Loan shall have been underwritten in accordance with the
criteria set forth under "EquiFirst Corporation--Underwriting Standards" in the
Prospectus Supplement.
C. Following the purchase of any Subsequent Group I Mortgage Loan by the
Trust, the Group I Mortgage Loans (including such Subsequent Group I Mortgage
Loans) will: (i) have a weighted average original term to stated maturity of not
more than 360 months; (ii) have a weighted average Mortgage Rate of not less
than 6.50% per annum and not more than 6.85% per annum; (iii) have a weighted
average Loan-to-Value Ratio of not more than 93.00%; (iv) have no Mortgage Loan
with a Stated Principal Balance at origination which does not conform to Xxxxxx
Xxx and Xxxxxxx Mac guidelines; (v) will consist of Mortgage Loans with
Prepayment Charges representing no less than 84.00% by aggregate Stated
Principal Balance of the Group I Mortgage Loans; (vi) will have no Mortgage Loan
with a Stated Principal Balance in excess of $1,000,000; and (vii) have no more
than 24.80% of Fixed-Rate Mortgage Loans by aggregate Stated Principal Balance
of the Group I Mortgage Loans. In addition, the Adjustable-Rate Group I Mortgage
Loans will have a weighted average Gross Margin not less than 6.50% per annum.
For purposes of the calculations described in this paragraph, percentages of the
Group I Mortgage Loans will be based on the Stated Principal Balance of the
Initial Group I Mortgage Loans as of the Cut-off Date and the Stated Principal
Balance of the Subsequent Group I Mortgage Loans as of the related Subsequent
Cut-off Date.
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D. Following the purchase of any Subsequent Group II Mortgage Loan by the
Trust, the Group II Mortgage Loans (including such Subsequent Group II Mortgage
Loans) will: (i) have a weighted average original term to stated maturity of not
more than 360 months; (ii) have a weighted average Mortgage Rate of not less
than 6.80% per annum and not more than 7.00% per annum; (iii) have a weighted
average Loan-to-Value Ratio of not more than 97.25%; (iv) have no Mortgage Loan
with a principal balance in excess of $1,000,000; (v) will consist of Mortgage
Loans with Prepayment Charges representing no less than 89.00% by aggregate
Stated Principal Balance of the Group II Mortgage Loans; and (vi) have no more
than 30.00% of Fixed-Rate Mortgage Loans by aggregate Stated Principal Balance
of the Group II Mortgage Loans. In addition, the Adjustable-Rate Group II
Mortgage Loans will have a weighted average Gross Margin not less than 6.80% per
annum. For purposes of the calculations described in this paragraph, percentages
of the Group II Mortgage Loans will be based on the Stated Principal Balance of
the Initial Group II Mortgage Loans as of the Cut-off Date and the Stated
Principal Balance of the Subsequent Group II Mortgage Loans as of the related
Subsequent Cut-off Date.
E. Notwithstanding the foregoing, any Subsequent Mortgage Loan may be
rejected by any Rating Agency if the inclusion of any such Subsequent Mortgage
Loan would adversely affect the ratings of any Class of Certificates. At least
one Business Day prior to the Subsequent Transfer Date, each Rating Agency shall
notify the Trustee as to which Subsequent Mortgage Loans, if any, shall not be
included in the transfer on the Subsequent Transfer Date; provided, however,
that the Seller shall have delivered to each Rating Agency at least three
Business Days prior to such Subsequent Transfer Date a computer file acceptable
to each Rating Agency describing the characteristics specified in paragraphs (c)
and (d) above.
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ATTACHMENT B
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FILED BY PAPER
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ATTACHMENT C
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AVAILABLE UPON REQUEST
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