EXHIBIT 4.2
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated August 27, 2004
(the "Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor"), and Xxxxx Fargo Bank, N.A. as trustee (the "Trustee") of the First
Franklin Mortgage Loan Trust 2004-FFH2, Asset-Backed Certificates, Series
2004-FFH2 and pursuant to the Pooling and Servicing Agreement, dated as of June
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 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: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as Trustee
for First Franklin Mortgage Loan
Trust 2004-FFH2, Asset-Backed
Certificates, Series 2004-FFH2
By: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
Title: Vice President
ATTACHMENTS
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
ATTACHMENT A
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ADDITIONAL TERMS OF SALE
A. General
1. Subsequent Cut-off Date: August 1, 2004
2. Subsequent Transfer Date: August 27, 2004
3. Aggregate Stated Principal Balance of the Subsequent Mortgage
Loans as of the Subsequent Cut-off Date: $250,000,000.08
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) the Subsequent Mortgage Loan may not be 30 or more days delinquent as
of the last day of the calendar month preceding the Subsequent Cut-off Date;
(ii) the original term to stated maturity of the Subsequent Mortgage Loan will
not be less than 180 months and will not exceed 360 months; (iii) the Subsequent
Mortgage Loan may not provide for negative amortization; (iv) the 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 2 months; (vi) the
Subsequent Mortgage Loan, if a fixed-rate Subsequent Mortgage Loan, will have a
Mortgage Rate that is not less than approximately 6.000% per annum or greater
than approximately 10.500% per annum; (vii) each of the Subsequent Mortgage
Loans will have a first payment date occurring on or before September 1, 2004
and will include 30 days' interest thereon; (viii) if the Subsequent Mortgage
Loan is an adjustable-rate Subsequent Mortgage Loan, the Subsequent Mortgage
Loan will have a Gross Margin not less than approximately 3.000% per annum, will
have a Maximum Mortgage Rate not less than approximately 9.5% per annum and will
have a Minimum Mortgage Rate not less than approximately 4.75% per annum and
(ix) the Subsequent Mortgage Loan will have been underwritten in accordance with
the criteria set forth under "First Franklin Financial 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) will have a weighted average original term to stated
maturity of not more than 360 months; (ii) will have a weighted average Mortgage
Rate of not less than 7.000% per annum and not more than 7.500% per annum; (iii)
will have a weighted average loan-to-value ratio of not more than 100.00%; (iv)
will 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
approximately 77.00% of the Group I Mortgage Loans and (vi) have no more than
8.25% of fixed-rate Group I Mortgage Loans. In addition, the adjustable-rate
Group I Mortgage Loans will have a weighted average Gross Margin not less than
5.750% per annum. For purposes of the calculations described in this paragraph,
percentages of the Group I Mortgage Loans will be based on the Principal Balance
of the Closing Date Group I Mortgage Loans as of the Cut-off Date and the
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) will have a weighted average original term to stated
maturity of not more than 360 months; (ii) will have a weighted average Mortgage
Rate of not less than 6.750% per annum and not more than 7.500% per annum; (iii)
will have a weighted average loan-to-value ratio of not more than 100.00%; (iv)
will 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
approximately 75.00% of the Group II Mortgage Loans and (vi) have no more than
6.00% of fixed-rate Group II Mortgage Loans. In addition, the adjustable-rate
Group II Mortgage Loans will have a weighted average Gross Margin not less than
5.250% per annum. For purposes of the calculations described in this paragraph,
percentages of the Group II Mortgage Loans will be based on the Principal
Balance of the Closing Date Group II Mortgage Loans as of the Cut-off Date and
the 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
