Exhibit 4.2
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SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated October 29, 2004 (the
"Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor") and Deutsche Bank National Trust Company as trustee of the Meritage
Mortgage Loan Trust 2004-2, Asset-Backed Certificates, Series 2004-2, as
purchaser (the "Trustee"), and pursuant to the Pooling and Servicing Agreement,
dated as of August 1, 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 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 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 Subsequent 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 Greenwich Capital Financial Products, Inc. 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 precedent
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.
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.
FINANCIAL ASSET SECURITIES CORP.
By:
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Name:
Title:
DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee
for Meritage Mortgage Loan
Trust 2004-2, Asset-Backed
Certificates, Series 2004-2
By:
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Name:
Title:
Attachments
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A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Schedule of Prepayment Charges.
ATTACHMENT A
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ADDITIONAL TERMS OF SALE
A. General
1. Subsequent Cut-off Date: October 1, 2004
2. Subsequent Transfer Date: October 29, 2004
3. Aggregate Stated Principal Balance of the Subsequent
Mortgage Loans as of the Subsequent Cut-off Date:
$403,818,860.75
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 180 months and will not exceed 360 months; (iii) such Subsequent
Mortgage Loan will 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 3 months; (vi) such
Subsequent Mortgage Loan shall have a Mortgage Rate that is not less than 4.50%
per annum; (vii) such Subsequent Mortgage Loan must have a first payment date
occurring on or before December 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 3.35%
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 7.00% 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 3.35% per annum and (xi) such Subsequent Mortgage Loan shall have
been underwritten in accordance with the criteria set forth under "Meritage
Mortgage 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 6.90% per annum for any Group I Mortgage Loan; (iii) have a
weighted average Loan-to-Value Ratio of not more than 88.00%; (iv) have no
Mortgage Loan with a Stated Principal Balance in excess of $900,000; (v) will
consist of Mortgage Loans with Prepayment Charges representing no less than
80.00% by aggregate Stated Principal Balance of the Group I Mortgage Loans and
(vi) have no more than 10.00% 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 5.60% 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.
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 6.90% per annum for any fixed-rate Group II Mortgage Loan;
(iii) have a
weighted average Loan-to-Value Ratio of not more than 90.50%; (iv) have no
Mortgage Loan with a Stated Principal Balance in excess of $900,000; (v) will
consist of Mortgage Loans with Prepayment Charges representing no less than
80.00% by aggregate Stated Principal Balance of the Group II Mortgage Loans and
(vi) have no more than 25.00% 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 5.60% 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.
ATTACHMENT B
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FILED BY PAPER
ATTACHMENT C
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AVAILABLE UPON REQUEST
