TRUST AGREEMENT
______________________________________
AMENDMENT
NO. 1
Dated
as
of September 12, 2006
to
Dated
as
of April 28, 2006
between
ASSET
BACKED SECURITIES CORPORATION,
as
Depositor
and
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
______________________________________
______________________________________
THIS
AMENDMENT NO. 1, dated as of September 12, 2006 (the “Amendment”), to the
Trust
Agreement (the “Trust Agreement”), dated as of April 28, 2006, between ASSET
BACKED SECURITIES CORPORATION, a Delaware corporation, as depositor (the
“Depositor”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
owner trustee (the “Owner Trustee”).
W
I T N E
S S E T H
WHEREAS,
the Depositor and the Owner Trustee entered into the Trust
Agreement;
WHEREAS,
the Depositor and the Owner Trustee desire to amend the Trust
Agreement;
WHEREAS,
clause (b) of Section 10.01 of the Trust Agreement provides that the Trust
Agreement may be amended by the Depositor and the Owner Trustee without the
consent of any of the Certificateholders affected thereby for the purpose of
correcting any mistake;
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. Defined Terms.
For
purposes of this Amendment, unless the context clearly requires otherwise,
all
capitalized terms which are used but not otherwise defined herein shall have
the
respective meanings assigned to such terms in the Trust Agreement.
SECTION
2. The Amendment.
(a)
Section 2.06 of the Trust Agreement shall be deleted in its entirety and
replaced with the following:
Section
2.06 Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholders, subject to the obligations of the Owner Trust under
the
Basic Documents. It is the intention of the parties hereto that the Owner Trust
constitute a statutory trust under the Statutory Trust Statute and that this
Trust Agreement constitute the governing instrument of such statutory trust.
It
is the
intention of the parties hereto that, solely for federal, state and local income
and franchise tax purposes, the Owner Trust shall be treated as a domestic
eligible entity with a single owner electing to be disregarded as a separate
entity. It is the intention of the parties hereto that an election to be treated
as a REMIC (“REMIC”) for federal income tax purposes be made with respect to the
Group 1 Loans together with the proceeds of the Group 1 Loans (“REMIC IA”). It
is also the intention of the parties hereto that elections to be treated as
a
REMIC be made with respect to the REMIC IA Regular Interests
(“REMIC IB”), with respect to the REMIC IB Regular Interests
(“REMIC IC”) and with respect to the REMIC IC Regular Interests
(“REMIC ID”).
It
is
also the intention of the parties hereto that an election to be treated as
a
REMIC (“REMIC”) for federal income tax purposes be made with respect to the
Group 2 Loans together with the proceeds of the Group 2 Loans (“REMIC IIA”). It
is also the intention of the parties hereto that elections to be treated as
a
REMIC be made with respect to the REMIC IIA Regular Interests
(“REMIC IIB”) and with respect to the REMIC IIB Regular Interests
(“REMIC IIC”). Notwithstanding the foregoing, Additional Balances
comprising the Additional Balance Advance Amount shall not be an asset of
REMIC IA, REMIC IB, REMIC IC, REMIC ID, REMIC IIA,
REMIC IIB or REMIC IIC but shall be an asset of the Trust Estate. The
Issuer will provide for the administration of REMIC IA, REMIC IB,
REMIC IC, REMIC ID, REMIC IIA, REMIC IIB and REMIC IIC
pursuant to Article XI of the Indenture. Pursuant to Section 11.01(d) of the
Indenture, the REMIC Administrator will prepare, sign and file certain tax
returns on behalf of the REMICs. The parties agree that, unless otherwise
required by appropriate tax authorities, the Owner Trust will not file or cause
to be filed annual or other returns, reports or other forms. Effective as of
the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Statutory Trust Statute with respect to accomplishing
the purposes of the Owner Trust.
(b)
The
first paragraph of Section 3.03 shall be deleted in its entirety and replaced
with the following:
Section
3.03 The
Certificates.
Initially, the Trust shall issue a single denomination of a 100.00% Certificate
Percentage Interest of the Class 1P Certificates. The Class 1P Certificates
shall represent a 100% beneficial interest in the portion of the Trust relating
to Prepayment Charges on the Group 1 Loans. Initially, the Trust shall issue
a
single denomination of a 100.00% Certificate Percentage Interest of the Class
1X-1 Certificates. The Class 1X-1 Certificates shall represent a 100% beneficial
interest in the portion of the Trust relating to the Group 1 Loans. Initially,
the Trust shall issue a single denomination of a 100.00% Certificate Percentage
Interest of the Class 1X-2 Certificates. The Class 1X-2 Certificates shall
represent a 100% beneficial interest in recoveries on Charged Off Loans in
Loan
Group 1 that become Released Loans. Initially, the Trust shall issue a single
denomination of a 100.00% Certificate Percentage Interest of the Class 1X-S
Certificates. The Class 1X-S Certificates shall represent a 100% beneficial
interest in the portion of the Trust relating to the Excess Servicing Fee with
respect to the Group 1 Loans. Initially, the Trust shall issue a single
denomination of a 100.00% Certificate Percentage Interest of each of the Class
G
Certificates. The Class G Certificates shall represent the residual interest
in
REMIC IIA. Initially, the Trust shall issue a single denomination of a 100.00%
Certificate Percentage Interest of the Class 2P Certificates. The Class 2P
Certificates shall represent a 100% beneficial interest in the portion of the
Trust relating to Prepayment Charges on the Group 2 Loans. Initially, the Trust
shall issue a single denomination of a 100.00% Certificate Percentage Interest
of the Class 2X-1 Certificates. The Class 2X-1 Certificates shall represent
a
100% beneficial interest in the portion of the Trust relating to the Group
2
Loans. Initially, the Trust shall issue a single denomination of a 100.00%
Certificate Percentage Interest of the Class 2X-2 Certificates. The Class 2X-2
Certificates shall represent a 100% beneficial interest in recoveries on Charged
Off Loans in Loan Group 2 that become Released Loans. Initially, the Trust
shall
issue a single denomination of a 100.00% Certificate Percentage Interest of
the
Class 1A-R Certificates. The Class 1A-R Certificates represents beneficial
ownership of the Class R-IA Interest, the Class R-IB Interest, the Class R-IC
Interest and the Class R-ID Interest. Initially, the Trust shall issue a single
denomination of a 100.00% Certificate Percentage Interest of the Class 2A-R
Certificates. The Class 2A-R Certificates represents beneficial ownership of
the
Class R-IIB Interest and the Class R-IIC Interest. The Certificates of each
Class shall be shall be transferable in minimum denominations of 20% Certificate
Percentage Interest.
(c)
Clause (B) of Section 3.05(v) of the Trust Agreement shall be deleted in its
entirety and replaced with the following:
(B)
subject
to Section 10.01(f), an Officers’ Certificate of the Indenture Trustee
stating that the Indenture Trustee has received an Opinion of Counsel, in form
and substance satisfactory to the Indenture Trustee, to the effect that such
modification, addition to or absence of such provisions will not cause any
portion of any of the REMICs to cease to qualify as a REMIC and will not cause
(x) any portion of any of the REMICs to be subject to an entity-level tax
caused by the Transfer of any Class 1A-R Certificate or Class 2A-R
Certificate to a Person that is a Disqualified Organization or (y) a
Certificateholder or another Person to be subject to a REMIC-related tax caused
by the Transfer of a Class 1A-R Certificate or Class 2A-R Certificate to a
Person that is not a Permitted Transferee.
(d)
Clause (e) of Section 5.01 of the Trust Agreement shall be deleted in its
entirety and replaced with the following:
(e) For
federal income tax purposes, distributions on the REMIC IA Regular Interests,
REMIC IB Regular Interests, REMIC IC Regular Interests, REMIC ID Regular
Interests, REMIC IIA Regular Interests, REMIC IIB Regular Interests and REMIC
IIC Regular Interests shall be in the same priority and for the same amounts
as
that provided in Section 11.02 of the Indenture
(e) The
first
sentence of Section 5.03 of the Trust Agreement shall be deleted in its entirety
and replaced with the following:
The
REMIC
Administrator, as agent for the Owner Trustee, shall sign on behalf of the
Trust
the tax returns of REMIC IA, REMIC IB, REMIC IC, REMIC ID, REMIC IIA, REMIC
IIB
and REMIC IIC.
(f)
Clause (a) of Section 8.02 shall be deleted in its entirely and replaced with
the following:
(a)
REMIC
IA, REMIC IB, REMIC IC, REMIC ID, REMIC IIA, REMIC IIB and REMIC IIC
shall be terminated in accordance with the additional requirements set forth
in
Section 10.22 of the Indenture.
(g)
Clause (a)(ii) of Section 10.01 shall be deleted in its entirety and replaced
with the following:
(a)(ii)
will not cause the Trust to be subject to an entity level tax or cause any
of
REMIC
IA,
REMIC IB, REMIC IC, REMIC ID, REMIC IIA, REMIC IIB or REMIC IIC
to fail to qualify as a REMIC for federal income tax purposes.
SECTION
3. Effect of Amendment.
Upon
execution of this Amendment, the Trust Agreement shall be, and be deemed to
be,
modified and amended in accordance herewith and the respective rights,
limitations, obligations, duties, liabilities and immunities of the Depositor
and the Owner Trustee shall hereafter be determined, exercised and enforced
subject in all respects to such modifications and amendments, and all the terms
and conditions of this Amendment shall be deemed to be part of the terms and
conditions of the Trust Agreement for any and all purposes. Except as modified
and expressly amended by this Amendment, the Trust Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
SECTION
4. Binding Effect.
The
provisions of this Amendment shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the
benefit
of the Depositor and the Owner Trustee.
SECTION
5. Governing Law.
This
Amendment shall be construed in accordance with the substantive laws of the
State of New York (without regard to conflict of law principles) and the
obligations, rights and remedies of the parties hereto shall be determined
in
accordance with such laws.
SECTION
6. Severability of Provisions.
If
any
one or more of the provisions or terms of this Amendment shall be for any reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Amendment and shall in no way
affect the validity or enforceability of the other provisions or terms of this
Amendment.
SECTION
7. Section Headings.
The
section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION
8. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
[signature
pages follow]
IN
WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names
to
be signed hereto by their respective officers thereunto duly authorized as
of
the day and year first above written.
|
ASSET
BACKED SECURITIES CORPORATION,
as
Depositor
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Vice
President
|
|
WILMINGTON
TRUST COMPANY,
as
Owner Trustee
|
|
|
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|
Name:
|
Xxxxxxxx
X. Xxxx
|
|
Title:
|
Financial
Services Officer
|
|
Acknowledged
and Agreed:
U.S.
BANK NATIONAL ASSOCIATION,
as
Certificate Registrar, REMIC Administrator,
Certificate
Paying Agent and Indenture Trustee
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Assistant
Vice President
|
|
DLJ
MORTGAGE CAPITAL INC.,
as
Sponsor
|
|
|
By:
|
/s/
Xxx Xxx
|
|
Name:
|
Xxx
Xxx
|
|
Title:
|
Vice
President
|
