Exhibit 4.2
SUBSEQUENT TRANSFER AGREEMENT
SUBSEQUENT TRANSFER AGREEMENT (the "Agreement"), dated as of March 4,
2005, by and between Ocean Bank, FSB (formerly known as Home Loan and Investment
Bank, F.S.B.) (the "Seller") and Deutsche Bank National Trust Company (the
"Indenture Trustee"), pursuant to the Indenture referred to below.
WITNESSETH:
WHEREAS, pursuant to a Mortgage Loan Purchase Agreement (the "MLPA"),
dated as of December 16, 2004, between Financial Asset Securities Corp, as
Purchaser (the "Purchaser") and Ocean Bank, FSB (formerly known as Home Loan and
Investment Bank, F.S.B.) as Seller (the "Seller"), relating to Home Loan
Mortgage Loan Trust Series 0000-0, Xxxxx Backed Notes, Series 2004-2, the Seller
will sell the Subsequent Mortgage Loans (as defined below) to the Issuer (as
defined below), as assignee of the Purchaser under the MLPA; and
WHEREAS, pursuant to the terms of an Amended and Restated Trust
Agreement dated as of December 16, 2004 (the "Trust Agreement"), among the
Purchaser, as depositor, (the "Depositor"), Wilmington Trust Company, as Owner
Trustee (the "Owner Trustee") and Deutsche Bank National Trust Company, as
certificate registrar and certificate paying agent (the "Certificate
Registrar"), the Purchaser will sell the Mortgage Loans to a Trust designated as
Home Loan Mortgage Loan Trust 2004-2, a Delaware statutory trust (the "Issuer");
and
WHEREAS, pursuant to an Indenture (the "Indenture"), dated as of
December 16, 2004, between Home Loan Mortgage Loan Trust Series 2004-2, a
Delaware business trust, as Issuer (the "Issuer"), and Deutsche Bank National
Trust Company, as Indenture Trustee (the "Indenture Trustee"), relating to Home
Loan Mortgage Loan Trust Series 2004-2, Asset-Backed Notes, Series 2004-2, the
Seller wishes to convey the Subsequent Mortgage Loans (as defined below) to the
Trust, and the Trust wishes to acquire the same for consideration set forth in
Section III below; and
WHEREAS, pursuant to the terms of this Agreement, the Seller shall
pledge the Subsequent Mortgage Loans to the Indenture Trustee; and
WHEREAS, the Seller has timely delivered to the Indenture Trustee, the
Servicer, the Depositor, the Rating Agencies and the Note Insurer an Addition
Notice related to such conveyance as required by Section 2.05 of the Indenture.
NOW, THEREFORE, the Trust and the Seller hereby agree as follows:
Section I. Capitalized terms used herein shall have the meanings
ascribed to them in the Indenture unless otherwise defined herein.
"Cut-Off Date" shall mean, for purposes of this Agreement, the
later of (a) the close of business on February 28, 2005 and (b) the
date of origination of such Subsequent Mortgage Loan
"Purchase Agreement" shall mean, for purposes of this
Agreement, the Mortgage
Loan Purchase Agreement dated as of December 16, 2004 between Financial
Asset Securities Corp., as purchaser, and the Seller.
"Subsequent Mortgage Loans" shall mean, for purposes of this
Agreement, the Subsequent Mortgage Loans listed in the Subsequent
Mortgage Loan Schedule attached hereto as Schedule I.
"Subsequent Transfer Date" shall mean, with respect to the
Subsequent Mortgage Loans transferred hereby, March 4, 2005.
Section II. SUBSEQUENT MORTGAGE LOAN SCHEDULE. The Subsequent Mortgage
Loan Schedule attached hereto as Schedule I is a supplement to the Mortgage Loan
Schedule attached as Exhibit B to the Indenture. The Mortgage Loans listed in
the Subsequent Mortgage Loan Schedule constitute the Subsequent Mortgage Loans
to be transferred pursuant to this Agreement on the Subsequent Transfer Date.
Section III. TRANSFER OF SUBSEQUENT MORTGAGE LOANS. As of the related
Cut-Off Date, subject to and upon the terms and conditions set forth in Section
2.03 of the Servicing Agreement and Section 2.05 of the Indenture and set forth
in this Agreement and the Purchase Agreement, the Seller hereby pledges to the
Indenture Trustee without recourse other than as expressly provided herein and
in the Indenture, all the right, title and interest of the Seller in and to the
(i) Subsequent Mortgage Loans delivered to the Indenture Trustee on the
Subsequent Transfer Date, including the related Cut-Off Date Principal Balance,
all interest accruing thereon after the applicable Cut-Off Date and all
collections in respect of principal received on or after the related Cut-Off
Date (exclusive of payments in respect of interest accrued on the Subsequent
Mortgage Loans through the related Due Date in the month in which the Cut-Off
Date occurs); (ii) property which secured a Subsequent Mortgage Loan and which
is acquired by foreclosure or deed in lieu of foreclosure; (iii) interest of the
Seller in any insurance policies in respect of the Subsequent Mortgage Loans;
and (iv) all proceeds of any of the foregoing.
Section IV. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The
Seller hereby represents and warrants to the Trust that the representations and
warranties of the Seller set forth in Section 3.1 of the Purchase Agreement and
Sections 2.01 and 2.02 of the Servicing Agreement are true and correct as of the
Subsequent Transfer Date.
(b) The Seller hereby affirms, as of the Subsequent Transfer Date, the
representations and warranties set forth in the Purchase Agreement that relate
to the Seller and the Subsequent Mortgage Loans including those representations
and warranties that do not relate exclusively to Initial Mortgage Loans.
(c) The Seller hereby represents and warrants that (i) the aggregate of
the Principal Balances of the Subsequent Mortgage Loans listed on the Subsequent
Mortgage Loan Schedule and conveyed to the Trust pursuant to this Agreement is
$17,186,810.65 as of the related Cut-Off Date, and (ii) the conditions set forth
in Section 2.05 of the Indenture have been satisfied as of the Subsequent
Transfer Date.
Section V. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Purchase Agreement is in all respects ratified and confirmed and
the Purchase Agreement, as so
supplemented by this Agreement, shall be read, taken and construed as one and
the same instrument.
Section VI. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
Section VII. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
OCEAN BANK, FSB (formerly known as HOME LOAN
AND INVESTMENT BANK, F.S.B., the "Seller')
as Seller
By:
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Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By:
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Name:
Title:
By:
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Name:
Title:
SCHEDULE I
SUBSEQUENT MORTGAGE LOANS
[OCEAN BANK]
