Exhibit 4.2
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SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated January 20, 2005
(the "Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor"), and Deutsche Bank National Trust Company as trustee (the
"Trustee") of the Fremont Home Loan Trust 2004-4, Asset-Backed Certificates,
Series 2004-4 and pursuant to the Pooling and Servicing Agreement, dated as of
September 1, 2004 (the "Pooling and Servicing Agreement"), among the Depositor,
Xxxxxx Loan Servicing LP 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.
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 Fremont
Home Loan Trust 2004-4,
Asset-Backed Certificates, Series
2004-4
By:
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Name:
Title:
Attachments
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A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
ATTACHMENT A
ADDITIONAL TERMS OF SALE
A. General
1. Subsequent Cut-off Date: January 1, 2005
2. Subsequent Transfer Date: January 20, 2005
3. Aggregate Stated Principal Balance of the Subsequent Mortgage
Loans as of the Subsequent Cut-off Date: $399,535,043.82
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 following paragraphs 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 60
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 5 months; (vi) such Subsequent Mortgage
Loan, if a Fixed Rate Mortgage Loan, shall have a Mortgage Rate that is not less
than 4.500% per annum or greater than 14.000% per annum; (vii) such Subsequent
Mortgage Loan must have a first payment date occurring on or before December
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 1.000% per annum, will have a Maximum
Mortgage Rate not less than 9.500% per annum and will have a Minimum Mortgage
Rate not less than 3.500% per annum and (ix) such Subsequent Mortgage Loan shall
have been underwritten in accordance with the criteria set forth under "Fremont
Investment & Loan--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 6.000% per annum and not more than 7.750% per annum; (iii) have
a weighted average Loan-to-Value Ratio of not more than 86.00%; (iv) have no
Mortgage Loan with a Stated Principal Balance in excess of Xxxxxx Xxx and
Xxxxxxx Mac limits; (v) will consist of Mortgage Loans with Prepayment Charges
representing no less than 81.00% by aggregate Stated Principal Balance of the
Group I Mortgage Loans; and (vi) have no more than 20.00% 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 4.000% 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 5.750% per annum and not more than 7.750% per
annum; (iii) have a weighted average Loan-to-Value Ratio of not more than
86.00%; (iv) have no Mortgage Loan with a Stated Principal Balance in excess of
$1,100,000; (v) will consist of Mortgage Loans with Prepayment Charges
representing no less than 81.00% by aggregate Stated Principal Balance of the
Group II Mortgage Loans; and (vi) have no more than 19.000% 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 4.000% 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
(b), (c) and (d) above.
ATTACHMENT B
SCHEDULE OF SUBSEQUENT MORTGAGE LOANS
[FILED BY PAPER]
ATTACHMENT A
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ADDITIONAL TERMS OF SALE
ATTACHMENT B
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FILED BY PAPER
ATTACHMENT C
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AVAILABLE UPON REQUEST
