ASSET BACKED SECURITIES CORPORATION as Depositor and WILMINGTON TRUST COMPANY as Owner Trustee TRUST AGREEMENT Dated as of April 28, 2006 Home Equity Mortgage Trust 2006-2
ASSET
BACKED SECURITIES CORPORATION
as
Depositor
and
WILMINGTON
TRUST COMPANY
as
Owner
Trustee
Dated
as
of April 28, 2006
ARTICLE
I
Definitions
Section
1
|
Section
1.01
|
Definitions
|
|
|
Section
1.02
|
Other
Definitional Provisions.
|
ARTICLE
II
Organization
|
Section
2.01
|
Name
|
|
|
Section
2.02
|
Office
|
|
|
Section
2.03
|
Purposes
and Powers
|
|
|
Section
2.04
|
Appointment
of Owner Trustee
|
|
|
Section
2.05
|
Initial
Capital Contribution
|
|
|
Section
2.06
|
Declaration
of Trust
|
|
|
Section
2.07
|
Title
to Trust Property
|
|
|
Section
2.08
|
Situs
of Trust
|
|
|
Section
2.09
|
Representations
and Warranties of the Depositor
|
ARTICLE
III
Conveyance
of the Owner Trust Estate; The Certificates
|
Section
3.01
|
Conveyance
of the Owner Trust Estate
|
|
|
Section
3.02
|
Initial
Ownership
|
|
|
Section
3.03
|
The
Certificates
|
|
|
Section
3.04
|
Authentication
of Certificate
|
|
|
Section
3.05
|
Registration
of and Limitations on Transfer and Exchange of Certificate
|
|
|
Section
3.06
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
|
Section
3.07
|
Persons
Deemed Certificateholders
|
|
|
Section
3.08
|
Access
to Certificateholders’ Name and Addresses
|
|
|
Section
3.09
|
Maintenance
of Office or Agency
|
|
|
Section
3.10
|
Certificate
Paying Agent
|
|
|
Section
3.11
|
Subordination
|
ARTICLE
IV
Authority
and Duties of Owner Trustee
|
Section
4.01
|
General
Authority
|
|
|
Section
4.02
|
General
Duties
|
|
|
Section
4.03
|
Action
upon Instruction.
|
|
|
Section
4.04
|
No
Duties Except as Specified under Specified Documents or in
Instructions
|
|
|
Section
4.05
|
Restrictions.
|
|
|
Section
4.06
|
Prior
Notice to the Certificateholders with Respect to Certain
Matters
|
|
|
Section
4.07
|
Action
by Certificateholders with Respect to Certain Matters
|
|
|
Section
4.08
|
Action
by Certificateholder with Respect to Bankruptcy
|
|
|
Section
4.09
|
Restrictions
on Certificateholders’ Power
|
|
|
Section
4.10
|
Doing
Business in Other Jurisdictions
|
ARTICLE
V
Application
of Trust Funds
|
Section
5.01
|
Distributions.
|
|
|
Section
5.02
|
Method
of Payment
|
|
|
Section
5.03
|
Signature
on Returns
|
|
|
Section
5.04
|
Statements
to Certificateholders
|
|
|
Section
5.05
|
Tax
Elections
|
ARTICLE
VI
Concerning
the Owner Trustee
|
Section
6.01
|
Acceptance
of Trusts and Duties
|
|
|
Section
6.02
|
Furnishing
of Documents
|
|
|
Section
6.03
|
Representations
and Warranties
|
|
|
Section
6.04
|
Reliance;
Advice of Counsel.
|
|
|
Section
6.05
|
Not
Acting in Individual Capacity
|
|
|
Section
6.06
|
Owner
Trustee Not Liable for Certificates or Related Documents
|
|
|
Section
6.07
|
Owner
Trustee May Own the Certificates and the Notes
|
ARTICLE
VII
Compensation
of Owner Trustee
|
Section
7.01
|
Owner
Trustee’s Fees and Expenses
|
|
|
Section
7.02
|
Indemnification
|
ARTICLE
VIII
Termination
of Trust Agreement
|
Section
8.01
|
Termination
of Trust Agreement.
|
|
|
Section
8.02
|
Additional
Termination Requirements.
|
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
|
Section
9.01
|
Eligibility
Requirements for Owner Trustee
|
|
|
Section
9.02
|
Replacement
of Owner Trustee
|
|
|
Section
9.03
|
Successor
Owner Trustee
|
|
|
Section
9.04
|
Merger
or Consolidation of Owner Trustee
|
|
|
Section
9.05
|
Appointment
of Co-Trustee or Separate Trustee
|
ARTICLE
X
Miscellaneous
|
Section
10.01
|
Amendments.
|
|
|
Section
10.02
|
No
Legal Title to Owner Trust Estate
|
|
|
Section
10.03
|
Limitations
on Rights of Others
|
|
|
Section
10.04
|
Notices.
|
|
|
Section
10.05
|
Severability
|
|
|
Section
10.06
|
Separate
Counterparts
|
|
|
Section
10.07
|
Successors
and Assigns
|
|
|
Section
10.08
|
No
Petition
|
|
|
Section
10.09
|
No
Recourse
|
|
|
Section
10.10
|
Headings
|
|
|
Section
10.11
|
Governing
Law
|
|
|
Section
10.12
|
Integration
|
|
|
Section
10.13
|
Intention
of the Parties
|
|
EXHIBIT
A
|
FORM
OF CLASS [1][2]X-[1][2][S] CERTIFICATES
|
|
EXHIBIT
B
|
FORM
OF CERTIFICATE OF TRUST OF
|
|
EXHIBIT
C
|
FORM
OF RULE 144A INVESTMENT REPRESENTATION
|
|
EXHIBIT
D
|
FORM
OF INVESTOR REPRESENTATION LETTER
|
|
EXHIBIT
E
|
FORM
OF TRANSFEROR REPRESENTATION LETTER
|
|
EXHIBIT
F
|
FORM
OF ERISA REPRESENTATION LETTER
|
|
EXHIBIT
G
|
FORM
OF CERTIFICATE OF NON-FOREIGN STATUS
|
|
EXHIBIT
H
|
[RESERVED]
|
|
EXHIBIT
I
|
FORM
OF CLASS [1][2]A-R CERTIFICATES
|
|
EXHIBIT
J-1
|
FORM
OF TRANSFER AFFIDAVIT AND AGREEMENT
|
|
EXHIBIT
J-2
|
FORM
OF TRANSFEROR CERTIFICATE
|
|
EXHIBIT
K
|
FORM
OF CLASS [1][2]P CERTIFICATES
|
|
EXHIBIT
L
|
FORM
OF CLASS G CERTIFICATES
|
This
Trust Agreement, dated as of April 28, 2006 (as may be amended, modified or
supplemented and in effect from time to time, this “Trust Agreement”), 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”),
WITNESSETH
THAT:
WHEREAS,
pursuant to the terms of the Loan Purchase Agreement, DLJ Mortgage Capital,
Inc.
(in such capacity, the “Sponsor”) will sell to the Depositor the Loans together
with the Related Documents on the Closing Date;
WHEREAS,
pursuant to the terms if this Trust Agreement, the Depositor desires to convey
the Loans to the Trust;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated April 28, 2006 (the “Indenture”), among Home Equity
Mortgage Trust 2006-2, as issuer, and U.S. Bank National Association, as
indenture trustee, as in effect on the date hereof. All other capitalized terms
used herein shall have the meanings specified herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
the term “including” shall mean “including without limitation;” the term “or”
shall include “and/or”; and the term “proceeds” shall have the meaning ascribed
thereto in the UCC.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
Section
2.01 Name.
The
trust shall be known as “Home Equity Mortgage Trust 2006-2” (the “Trust” or the
“Owner Trust”), in which name the Owner Trustee may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Trust and ▇▇▇ and be sued.
Section
2.02 Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03 Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Notes and the Certificates;
(ii) to
purchase the Loans and to pay organizational, start-up and transactional
expenses of the Trust;
(iii) to
assign, grant, transfer, pledge and convey the Loans pursuant to the Indenture
and to hold, manage and distribute to the Certificateholders pursuant to
Section 5.01 any portion of the Loans released from the Lien of, and
remitted to the Trust pursuant to the Indenture;
(iv) to
assign, grant, transfer, own, pledge and convey the Loans in connection with
any
such termination;
(v) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(vi) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith, including, without limitation, to accept additional
contributions of equity that are not subject to the Lien of the Indenture;
and
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Securityholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the Basic
Documents while any Note is outstanding without the consent of the
Certificateholders and the Indenture Trustee.
Section
2.04 Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05 Initial
Capital Contribution.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges, on behalf of the Trust, the receipt in trust of the property
assigned to the Trust pursuant to Section 3.01.
The
Trust
acknowledges the conveyance to the Trust by the Depositor, as of the Closing
Date, of the Owner Trust Estate, including all right, title and interest of
the
Depositor in and to the Owner Trust Estate. Concurrently with such conveyance,
the Trust has pledged the Trust Estate to the Indenture Trustee and has executed
the Certificates and the Notes and caused them to be duly authenticated and
delivered.
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 Loans together with the proceeds of the Loans and the proceeds
on
deposit in the Custodial Accounts and the Payment Account. It is also the
intention of the parties hereto that a second election to be treated as a REMIC
be made with respect to the REMIC I Regular Interests (“REMIC II”). It
is also the intention of the parties hereto that a third election to be treated
as a REMIC be made with respect to the REMIC II Regular Interests
(“REMIC III”). Notwithstanding the foregoing, Additional Balances
comprising the Additional Balance Advance Amount shall not be an asset of
REMIC I, REMIC II or REMIC III but shall be an asset of the Trust
Fund. The Issuer will provide for the administration of REMIC I, REMIC II
and REMIC III 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.
Section
2.07 Title
to Trust Property.
Legal
title to the Owner Trust Estate shall be vested at all times in the Trust as
a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
Section
2.08 Situs
of Trust.
The
Trust will be located and administered in the State of Delaware or Minnesota.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of Delaware or the State of Minnesota. The Trust shall
not have any employees in any state other than Delaware; provided, however,
that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware or taking actions outside
the
State of Delaware in order to comply with Section 2.03. Payments will be
received by the Trust only in Delaware or Minnesota, and payments will be made
by the Trust only from Delaware or Minnesota. The only office of the Trust
will
be at the Corporate Trust Office in Delaware.
Section
2.09 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor and the ability of the
Depositor to perform under this Trust Agreement.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Trust as part of the Trust and the Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action;
and
the execution, delivery and performance of this Trust Agreement have been duly
authorized by the Depositor by all necessary corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor’s knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
ARTICLE
III
Conveyance
of the Owner Trust Estate; The Certificates
Section
3.01 Conveyance
of the Owner Trust Estate.
In
consideration of the delivery to the Depositor of the Securities, the Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
convey, sell and assign to the Trust, on behalf of the Securityholders, without
recourse, all of its right, title and interest, whether now owned or hereafter
acquired, in and to (A) the Initial Loans and all Additional Balances (other
than Excluded Amounts) thereafter arising, including the Mortgage Notes, the
Mortgages, any related insurance policies and all other documents in the related
Loan Files and including any Eligible Substitute Loans; (B) the Certificate
Distribution Account; (C) pool insurance policies, hazard insurance policies
and
any bankruptcy bond relating to the foregoing, if applicable; (D) all amounts
payable after the Cut-off Date to the holders of the Initial Loans in accordance
with the terms thereof; (E) all income, payments, proceeds and products of
the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from
time
to time held or invested in the Certificate Distribution Account, whether in
the
form of cash, instruments, securities or other property; (F) all accounts,
chattel paper, deposit accounts, documents, general intangibles, goods,
instruments, investment property, letter-of-credit rights, letters of credit,
money, and oil, gas, and other minerals, consisting of, arising from, or
relating to, any of the foregoing; and (G) all proceeds of any of the
foregoing.(collectively, the “Owner Trust Estate”).
The
Depositor and the Owner Trustee agree that it is not intended that any Loan
be
included in the Owner Trust Estate that is a “High-Cost Home Loan” as defined in
(i) the New Jersey Home Ownership Security Act effective November 27, 2003,
(ii)
the New Mexico Home Loan Protection Act effective January 1, 2004, (ii) the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004,
(iv)
the Indiana High Cost Home Loan Law Act effective January, 2005 or (v) the
Kentucky Revised Statutes §360.100, in each case as amended from time to
time.
Section
3.02 Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.05 and until the conveyance of the Loans pursuant to
Section 3.01 and the issuance of the Certificates, the Depositor shall be
the sole Certificateholder.
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 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 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 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. 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 I. 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 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 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
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 shall represent the residual interest
in REMIC II. 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 shall represent the residual interest in REMIC III.
The Certificates of each Class shall be shall be transferable in minimum
denominations of 20% Certificate Percentage Interest.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and authenticated in
the
manner provided in Section 3.04. If the Certificates bear the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, it shall
be
validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so
authorized prior to the authentication and delivery of the Certificates or
did
not hold such offices at the date of authentication and delivery of the
Certificates. A Person shall become a Certificateholder and shall be entitled
to
the rights and subject to the obligations of the Certificateholders hereunder
upon such Person’s acceptance of the Certificates duly registered in such
Person’s name, pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of the Certificateholders
hereunder upon such transferee’s acceptance of such Certificate duly registered
in such transferee’s name pursuant to and upon satisfaction of the conditions
set forth in Section 3.05.
Section
3.04 Authentication
of Certificate.
Concurrently with the acquisition of the Loans by the Trust, the Owner Trustee
or the Certificate Paying Agent shall cause each Class of Certificates to be
issued in a Certificate Percentage Interest of 100.00%, to be executed on behalf
of the Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in the authorized
denomination. A Certificate shall not entitle its holder to any benefit under
this Trust Agreement or be valid for any purpose unless there shall appear
on
such Certificate a certificate of authentication substantially in the form
set
forth in Exhibit A, Exhibit I, Exhibit K or Exhibit L executed by the Owner
Trustee or the Certificate Paying Agent, by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. Each Certificate shall
be
dated the date of its authentication.
Section
3.05 Registration
of and Limitations on Transfer and Exchange of Certificate.
The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.09, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of the Certificates and of
transfers and exchanges of the Certificates as herein provided. The Indenture
Trustee shall be the initial Certificate Registrar. If the Certificate Registrar
resigns or is removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Upon
surrender for registration or transfer of a Certificate at the office or agency
maintained pursuant to Section 3.09, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Certificate Registrar as its
authenticating agent to authenticate and deliver) in the name of the designated
transferee or transferees, a new Certificate in authorized denominations of
a
like aggregate amount dated the date of authentication by the Owner Trustee
or
any authenticating agent. At the option of a Certificateholder, such
Certificateholder’s Certificate may be exchanged for another Certificate of
authorized denominations of a like aggregate amount upon surrender of the
Certificate to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the registered holder of such
Certificate or such holder’s attorney duly authorized in writing. When a
Certificate is surrendered for registration of transfer or exchange it shall
be
canceled and subsequently disposed of by the Certificate Registrar in accordance
with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
any
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of any
Certificate.
Except
as
described below, no transfer of any Class G, Class 1A-R and Class 2A-R
Certificate or interest therein shall be made to any Person that is not a United
States Person. Each Class G, Class 1A-R and Class 2A-R Certificateholder shall
establish its non-foreign status by submitting to the Certificate Paying Agent
an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in Exhibit
G
hereto, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor. If a Class G, Class 1A-R
or
Class 2A-R Certificateholder is unable to provide a Certificate of Non-Foreign
Status, such Certificateholder must provide an Opinion of Counsel as described
in the preceding paragraph..
A
Certificate may be transferred to a Class G, Class 1A-R or Class 2A-R
Certificateholder unable to establish its non-foreign status as described in
the
preceding paragraph only if such Certificateholder provides an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor, satisfactory to
the
Depositor, that such transfer (1) will not affect the tax status of the Owner
Trust and (2) will not adversely affect the interests of the Certificateholders
or any Noteholder, including, without limitation, as a result of the imposition
of any United States federal withholding taxes on the Trust (except to the
extent that such withholding taxes would be payable solely from amounts
otherwise distributable to the Certificate of the prospective transferee).
If
such transfer occurs and such foreign Certificateholder becomes subject to
such
United States federal withholding taxes, any such taxes will be withheld by
the
Indenture Trustee. Each Certificateholder unable to establish its non-foreign
status shall submit to the Certificate Paying Agent a copy of its Form W-8BEN
and shall resubmit such Form W-8BEN every three years.
No
transfer, sale, pledge or other disposition of the Class 1P, Class 1X-1, Class
1X-2, Class 1X-S, Class G, Class 2P, Class 2X-1 or Class 2X-2 Certificates
shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute either (i) an investment letter
in substantially the form attached hereto as Exhibit C (or in such form and
substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicers, the Special Servicer
or
the Depositor and which investment letter states that, among other things,
such
transferee (a) is a “qualified institutional buyer” as defined under Rule 144A,
acting for its own account or the accounts of other “qualified institutional
buyers” as defined under Rule 144A, and (b) is aware that the proposed
transferor intends to rely on the exemption from registration requirements
under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicers, the Special Servicer or
the
Depositor and (b) the transferee executes a representation letter,
substantially in the form of Exhibit D hereto, and the transferor executes
a
representation letter, substantially in the form of Exhibit E hereto, each
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor. The
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trust, the Owner Trustee, the Certificate Registrar, the
Servicers, the Special Servicer and the Depositor against any liability that
may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No
transfer of a Certificate or any interest therein shall be made to any Person
using Plan Assets unless the Depositor, the Owner Trustee, the Certificate
Registrar, the Servicers and the Special Servicer are provided with an Opinion
of Counsel which establishes to the satisfaction of the Depositor, the Owner
Trustee, the Certificate Registrar, the Servicers and the Special Servicer
that
the purchase of such Certificate is permissible under applicable law, will
not
constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Owner
Trustee, the Trust, the Certificate Registrar, the Servicers or the Special
Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in
this Trust Agreement, which Opinion of Counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar, the Servicers or the
Special Servicer. In lieu of such Opinion of Counsel, a Plan, any Person acting,
directly or indirectly, on behalf of any such Plan or any Person acquiring
a
Certificate with Plan Assets of a Plan may provide a certification in the form
of Exhibit F to this Trust Agreement, which the Depositor, the Owner Trustee,
the Certificate Registrar, the Servicers and the Special Servicer may rely
upon
without further inquiry or investigation. Neither an Opinion of Counsel nor
a
certification will be required in connection with the initial transfer of the
Certificates by the Depositor to the Underwriter and the Depositor shall be
deemed to have represented that the Underwriter is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee and the Certificate
Registrar shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the
Depositor.
In
addition, no transfer of a Certificate shall be permitted, and no such transfer
shall be registered by the Certificate Registrar or be effective hereunder,
if
such transfer or the registration of such transfer would cause the Trust to
be
classified as a publicly traded partnership, taxable as a corporation for
federal income tax purposes by causing the Trust to have more than 100
Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage pool
for federal and relevant state income tax purposes.
In
addition, with respect to each Class G, Class 1A-R or Class 2A-R Certificate,
(i) each Person who has or who acquires any Ownership Interest in a Class G,
Class 1A-R or Class 2A-R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Certificate Paying
Agent or its designee under clause (iii)(A) below to deliver payments to a
Person other than such Person and to negotiate the terms of any mandatory sale
under clause (iii)(B) below and to execute all instruments of transfer and
to do
all other things necessary in connection with any such sale. The rights of
each
Person acquiring any Ownership Interest in a Class G, Class 1A-R or Class 2A-R
Certificate are expressly subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Class G, Class 1A-R
or
Class 2A-R Certificate shall be a Permitted Transferee and shall promptly notify
the Owner Trustee of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Class
G,
Class 1A-R or Class 2A-R Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of any Class G, Class 1A-R
or Class 2A-R Certificate until its receipt of, (I) an affidavit and agreement
(a “Transfer Affidavit and Agreement,” in the form attached hereto as Exhibit
J-1) from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
it
is a Permitted Transferee, that it is not acquiring its Ownership Interest
in
the Class G, Class 1A-R or Class 2A-R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who is not
a
Permitted Transferee, that for so long as it retains its Ownership Interest
in a
Class G, Class 1A-R or Class 2A-R Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 3.05 and agrees to be bound by them, and (II) a certificate, in the
form attached hereto as Exhibit J-2, from the Certificateholder of a Class
G,
Class 1A-R or Class 2A-R Certificate wishing to transfer the Class G, Class
1A-R
or Class 2A-R Certificate, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that no purpose
of
the proposed Transfer is to impede the assessment or collection of
tax.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Certificate Registrar
who is assigned to this Agreement has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Class G, Class 1A-R or Class 2A-R Certificate to such proposed Transferee
shall be effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Class G, Class 1A-R
or
Class 2A-R Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Class G, Class 1A-R or Class 2A-R Certificate and (y)
not to transfer its Ownership Interest unless it provides a certificate to
the
Certificate Registrar in the form attached hereto as Exhibit J-2.
(E) Each
Person holding or acquiring an Ownership Interest in a Class G, Class
1A-R or Class 2A-R Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Certificate Registrar written notice that it is a “pass-through interest holder”
within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class 1A-R or Class 2A-R Certificate, if it is, or is holding
an
Ownership Interest in a Class 1A-R or Class 2A-R Certificate on behalf of,
a
“pass-through interest holder.”
(ii) The
Certificate Registrar will register the Transfer of any Class G, Class 1A-R
or
Class 2A-R Certificate only if it shall have received the Transfer Affidavit
and
Agreement, a certificate of the Certificateholder of a Class G, Class 1A-R
or
Class 2A-R Certificate requesting such transfer in the form attached hereto
as
Exhibit J-2 and all of such other documents as shall have been reasonably
required by the Certificate Registrar as a condition to such registration.
Transfers of the Class 1A-R or Class 2A-R Certificates to Non-United States
Persons and Disqualified Organizations (as defined in Section 860E(e)(5) of
the Code) are prohibited.
(iii) (1) If
any
Disqualified Organization shall become a holder of a Class 1A-R or Class 2A-R
Certificate, then the last preceding Permitted Transferee shall be restored,
to
the extent permitted by law, to all rights and obligations as Certificateholder
of a Class G, Class 1A-R or Class 2A-R Certificate thereof retroactive to the
date of registration of such Transfer of such Class 1A-R or Class 2A-R
Certificate. If a Non-United States Person shall become a holder of a Class
G,
Class 1A-R or Class 2A-R Certificate, then the last preceding United States
Person shall be restored, to the extent permitted by law, to all rights and
obligations as Certificateholder of a Class G, Class 1A-R or Class 2A-R
Certificate thereof retroactive to the date of registration of such Transfer
of
such Class G, Class 1A-R or Class 2A-R Certificate. If a transfer of a Class
Class G, Class 1A-R or Class 2A-R Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or
Section 1.860G-3, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Certificateholder of a Class G, Class 1A-R or Class 2A-R Certificate thereof
retroactive to the date of registration of such Transfer of such Class G, Class
1A-R or Class 2A-R Certificate. The Certificate Registrar shall be under no
liability to any Person for any registration of Transfer of a Class G, Class
1A-R or Class 2A-R Certificate that is in fact not permitted by this
Section 3.05 or for making any payments due on such Certificate to the
holder thereof or for taking any other action with respect to such holder under
the provisions of this Agreement.
(B) If
any
purported Transferee shall become a Certificateholder of a Class G, Class 1A-R
or Class 2A-R Certificate in violation of the restrictions in this
Section 3.05 and to the extent that the retroactive restoration of the
rights of the Certificateholder of such Class G, Class 1A-R or Class 2A-R
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Certificate Registrar shall have the right, without
notice to the holder or any prior holder of such Class G, Class 1A-R or Class
2A-R Certificate, to sell such Class G, Class 1A-R or Class 2A-R Certificate
to
a purchaser selected by the Certificate Registrar on such terms as the
Certificate Registrar may choose. Such purported Transferee shall promptly
endorse and deliver each Class G, Class 1A-R or Class 2A-R Certificate in
accordance with the instructions of the Certificate Registrar. Such purchaser
may be the Servicer itself or any Affiliate of the Servicer. The proceeds of
such sale, net of the commissions (which may include commissions payable to
the
Servicer or its Affiliates), expenses and taxes due, if any, will be remitted
by
the Certificate Registrar to such purported Transferee. The terms and conditions
of any sale under this clause (iii)(B) shall be determined in the sole
discretion of the Certificate Registrar, and the Certificate Registrar shall
not
be liable to any Person having an Ownership Interest in a Class G, Class 1A-R
or
Class 2A-R Certificate as a result of its exercise of such
discretion.
(iv) The
Certificate Paying Agent shall make available, upon written request from the
Internal Revenue Service and any potentially affected Person, all information
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Class G, Class 1A-R or Class 2A-R Certificate to any
Person who is a Disqualified Organization, including the information regarding
“excess inclusions” of such Class 1A-R or Class 2A-R Certificates required to be
provided to the Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as
a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Class G,
Class 1A-R or Class 2A-R Certificate having as among its record holders at
any
time any Person who is a Disqualified Organization. Reasonable compensation
for
providing such information may be required by the REMIC Administrator before
it
will provide such information to any such potentially affected
Person.
(v) The
provisions of this Section 3.05 set forth prior to this clause (v) may be
modified, added to or eliminated, provided that there shall have been delivered
to the Owner Trustee the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings, if any, if determined without regard
to
the Policy, of any Class of the Notes below the lower of the then-current rating
or the rating assigned to such Notes as of the Closing Date by such Rating
Agency, if determined without regard to the Policy; and
(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 either of the REMICs to cease to qualify as a REMIC and will not
cause (x) any portion of either of the REMICs to be subject to an
entity-level tax caused by the Transfer of any Class A-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 A-R Certificate to a Person that is not a Permitted
Transferee.
Section
3.06 Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them and the Trust from harm, then
in
the absence of notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a protected purchaser, the Owner Trustee
shall execute on behalf of the Trust and the Owner Trustee or the Certificate
Paying Agent, as the Trust’s authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or
stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this
Section 3.06, the Owner Trustee or the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.06 shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section
3.07 Persons
Deemed Certificateholders.
Prior
to due presentation of the Certificates for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Trust, the Owner Trustee, the Certificate Registrar or any Certificate
Paying Agent shall be bound by any notice to the contrary.
Section
3.08 Access
to Certificateholders’ Name and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor
or
the Owner Trustee, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Depositor or the Owner Trustee,
a list, in such form as the Depositor or the Owner Trustee, as the case may
be,
may reasonably require, of the names and addresses of the Certificateholders
as
of the most recent Record Date. Each Certificateholder, by receiving and holding
the Certificates, shall be deemed to have agreed not to hold any of the Trust,
the Depositor, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from
which such information was derived.
Section
3.09 Maintenance
of Office or Agency.
The
Certificate Registrar shall maintain in the City of New York an office or
offices or agency or agencies where the Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trust in respect of the Certificates and the Basic Documents may be served.
The Certificate Registrar initially designates the Corporate Trust Office of
the
Indenture Trustee as its office for such purposes. The Indenture Trustee shall
give prompt written notice to the Depositor and the Certificateholders of any
change in the location of the Certificate Register or any such office or
agency.
Section
3.10 Certificate
Paying Agent.
(a) The
Certificate Paying Agent shall make distributions to the Certificateholders
from
the Certificate Distribution Account on behalf of the Trust in accordance with
the provisions of the Certificates and Section 5.01 hereof from payments
remitted to the Certificate Paying Agent by the Indenture Trustee pursuant
to
Section 3.05 of the Indenture. The Trust hereby appoints the Indenture
Trustee as Certificate Paying Agent. The Certificate Paying Agent
shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which it has actual
knowledge in the making of any payment required to be made with respect to
the
Certificates;
(iii) at
any
time during the continuance of any such default by the Trust, upon the written
request of the Owner Trustee forthwith pay to the Owner Trustee on behalf of the
Trust all sums held in trust by the Certificate Paying Agent pursuant to clause
(i) above;
(iv) immediately
resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on
behalf of the Trust all sums held by it in trust for the payment of the
Certificates if at any time it ceases to meet the standards required to be
met
by the Certificate Paying Agent at the time of its appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on the Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) deliver
to the Owner Trustee a copy of the report to Certificateholders prepared with
respect to each Payment Date by the Indenture Trustee.
(b) The
Trust
may revoke such power and remove the Certificate Paying Agent if the Owner
Trustee determines in its sole discretion that the Certificate Paying Agent
shall have failed to perform its obligations under this Trust Agreement in
any
material respect. The Indenture Trustee shall be permitted to resign as
Certificate Paying Agent upon 30 days written notice to the Owner Trustee;
provided the Indenture Trustee is also resigning as Paying Agent and Indenture
Trustee under the Indenture at such time and Administrator under the
Administration Agreement. In the event that the Indenture Trustee shall no
longer be the Certificate Paying Agent under this Trust Agreement and Paying
Agent under the Indenture, the Owner Trustee shall appoint a successor to act
as
Certificate Paying Agent (which shall be a bank or trust company) and which
shall also be the successor Paying Agent under the Indenture. The Owner Trustee
shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee to execute and deliver
to the Owner Trustee an instrument to the effect set forth in this
Section 3.10 as it relates to the Certificate Paying Agent. The Certificate
Paying Agent shall return all unclaimed funds to the Trust and upon removal
of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Trust. The provisions of Sections 6.01, 6.04,
6.05, 6.06, 6.07, 7.01 and 7.02 shall apply to the Certificate Paying Agent
to
the extent applicable. Any reference in this Trust Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The
Certificate Paying Agent shall establish and maintain with itself the
Certificate Distribution Account in which the Certificate Paying Agent shall
deposit, on the same day as it is received from the Indenture Trustee, each
remittance received by the Certificate Paying Agent with respect to payments
made pursuant to the Indenture. The Certificate Paying Agent shall make all
distributions on the Certificates from moneys on deposit in the Certificate
Distribution Account.
Section
3.11 Subordination.
Except
as otherwise provided in the Basic Documents, for so long as any Notes are
outstanding or unpaid, the Certificateholders will generally be subordinated
in
right of payment, under the Certificates or otherwise, to payments to the
Noteholders under, or otherwise related to, the Indenture. If an Event of
Default has occurred and is continuing under the Indenture, the Certificates
will be fully subordinated to obligations owing by the Trust to the Noteholders
under, or otherwise related to, the Indenture, and no distributions will be
made
on the Certificates until the Noteholders, the Administrator, the Servicers
and
the Indenture Trustee have been irrevocably paid in full.
ARTICLE
IV
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
Section
4.01 General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee’s execution
thereof.
Section
4.02 General
Duties.
The
Owner Trustee shall be responsible to administer the Trust pursuant to the
terms
of this Trust Agreement and in the interest of the Certificateholders, subject
to the Basic Documents and in accordance with the provisions of this Trust
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to
have discharged its duties under this Trust Agreement and the other Basic
Documents to the extent that the Sponsor or the Administrator shall have agreed
in the Administration Agreement to perform the duties of the Owner Trustee
or
the Trust, and the Owner Trustee shall not be responsible for monitoring the
performance of such duties by the Sponsor or the Administrator, nor shall the
Owner Trustee be liable for the acts or omissions of the Sponsor or the
Administrator. In no event shall the Owner Trustee be obligated to assume the
duties of the Sponsor in the event of the Sponsor’s resignation, removal,
insolvency or other incapacity.
Section
4.03 Action
upon Instruction.
(a) Subject
to this Article IV and in accordance with the terms of the Basic Documents,
holders of a majority of the Certificate Percentage Interest or each class
of
Certificates may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of a majority of the Certificate Percentage Interest or each class
of Certificates pursuant to this Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide or is unable to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee
is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document or any such provision is ambiguous as to its application, or
is,
or appears to be, in conflict with any other applicable provision, or in the
event that this Trust Agreement permits any determination by the Owner Trustee
or is silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting direction as to the course
of action to be adopted and to the extent the Owner Trustee acts in good faith
in accordance with any written instructions received from such
Certificateholders pursuant to Section 4.03(a) above, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04 No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly required by this Trust Agreement;
and no implied duties or obligations shall be read into this Trust Agreement
or
any Basic Document against the Owner Trustee. The Owner Trustee shall have
no
responsibility to prepare or file any financing or continuation statement in
any
public office at any time or to otherwise perfect or maintain the perfection
of
any security interest or lien granted to it hereunder or to prepare or file
any
Securities and Exchange Commission filing for the Trust or to record this Trust
Agreement or any Basic Document. The Owner Trustee nevertheless agrees that
it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee in its individual capacity
that
are not related to the ownership or the administration of the Owner Trust
Estate.
Section
4.05 Restrictions.
(a) The
Owner
Trustee shall not take any action (x) that is inconsistent with the purposes
of
the Trust set forth in Section 2.03 or (y) that, to the actual knowledge of
the Owner Trustee, would result in the Trust becoming taxable as a corporation
for federal income tax purposes. The Certificateholders shall not direct the
Owner Trustee to take action that would violate the provisions of this
Section 4.05.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust’s properties or assets,
including those included in the Owner Trust Estate, to any person unless (a)
it
shall have received an Opinion of Counsel to the effect that such transaction
will not have any material adverse tax consequence to the Trust or any
Certificateholder and (b) such conveyance or transfer shall not violate the
provisions of Section 3.15(b) of the Indenture.
Section
4.06 Prior
Notice to the Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have notified the Certificateholders of the proposed action and the holders
of a
majority of the Certificate Percentage Interest shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such holders have withheld consent or provided alternative
direction:
(a) the
initiation of any claim or lawsuit by the Trust and the compromise of any
action, claim or lawsuit brought by or against the Trust;
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07 Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, to (a) remove the Servicers under the Servicing
Agreement pursuant to Sections 7.01 and 8.05 thereof or (b) except as expressly
provided in the Basic Documents, sell the Loans after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the
Certificateholders.
Section
4.08 Action
by Certificateholder with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the
Certificateholders and the delivery to the Owner Trustee by each
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section
4.09 Restrictions
on Certificateholders’ Power.
The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be obligated to follow any such direction, if given.
Section
4.10 Doing
Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington
Trust Company nor the Owner Trustee shall be required to take any action in
any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Wilmington Trust Company, or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other
than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE
V
Application
of Trust Funds
Section
5.01 Distributions.
(a) On
each
Payment Date, the Certificate Paying Agent shall distribute from amounts on
deposit in the Certificate Distribution Account, the Class G Certificate
Distribution Amount with respect to such Payment Date to the holders of the
Class G Certificates. On each Payment Date, the Certificate Paying Agent shall
distribute from amounts on deposit in the Certificate Distribution Account,
the
Class 1A-R Certificate Distribution Amount with respect to such Payment
Date to the holders of the Class 1A-R Certificates. On each Payment Date,
the Certificate Paying Agent shall distribute from amounts on deposit in the
Certificate Distribution Account, the Class 2A-R Certificate Distribution
Amount with respect to such Payment Date to the holders of the Class 2A-R
Certificates. On each Payment Date, the Certificate Paying Agent shall
distribute from amounts on deposit in the Certificate Distribution Account,
the
Class 1P Certificate Distribution Amount with respect to such Payment Date
to
the holders of the Class 1P Certificates. On each Payment Date, the Certificate
Paying Agent shall distribute from amounts on deposit in the Certificate
Distribution Account, the Class 1X-1 Distribution Amount with respect to
such Payment Date to the holders of the Class 1X-1 Certificates. On each
Payment Date, the Certificate Paying Agent shall distribute from amounts on
deposit in the Certificate Distribution Account, the Class 1X-2
Distribution Amount with respect to such Payment Date to the holders of the
Class 1X-2 Certificates. On each Payment Date, the Certificate Paying Agent
shall distribute from amounts on deposit in the Certificate Distribution
Account, the Class 1X-S Certificate Distribution Amount with respect to
such Payment Date to the holders of the Class 1X-S Certificates. On each
Payment Date, the Certificate Paying Agent shall distribute from amounts on
deposit in the Certificate Distribution Account, the Class 2P Certificate
Distribution Amount with respect to such Payment Date to the holders of the
Class 2P Certificates. On each Payment Date, the Certificate Paying Agent
shall distribute from amounts on deposit in the Certificate Distribution
Account, the Class 2X-1 Distribution Amount with respect to such Payment
Date to the holders of the Class 2X-1 Certificates. On each Payment Date,
the Certificate Paying Agent shall distribute from amounts on deposit in the
Certificate Distribution Account, the Class 2X-2 Certificate Distribution
Amount with respect to such Payment Date to the holders of the Class 2X-2
Certificates. In the event that there are any funds remaining in the Certificate
Distribution Account on any Payment Date after the distribution of the Class
G
Certificate Distribution Amount, the Class 1A-R Certificate Distribution
Amount, the Class 2A-R Certificate Distribution Amount, the Class 1P
Certificate Distribution Amount, the Class 1X-1 Distribution Amount, the
Class 1X-2 Distribution Amount, the Class 1X-S Certificate
Distribution Amount, the Class 2P Certificate Distribution Amount, the
Class 2X-1 Distribution Amount and the Class 2X-2 Certificate Distribution
Amount, such amounts shall be distributed to the holders of the Class 1A-R
Certificates.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to the Certificateholders, such tax shall reduce the amount otherwise
distributable to the Certificateholders in accordance with this
Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax that
is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to any
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Certificate Paying Agent. The amount of any
such withholding tax shall be remitted by the Certificate Paying Agent, as
required, to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Certificate Paying Agent
may
in its sole discretion withhold such amounts in accordance with this paragraph
(b).
(c) Distributions
to the Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders.
(d) Allocations
of profits, income and losses, as determined for federal income tax purposes,
shall be made among the Classes R Certificates in accordance with the REMIC
provisions and within each Class of Certificates to the Certificateholders
on a
pro rata basis based on the Certificate Percentage Interests
thereof.
(e) For
federal income tax purposes, distributions on the REMIC I Regular Interests
and
REMIC II Regular Interests shall be in the same priority and for the same
amounts as that provided in Section 11.02 of the Indenture.
Section
5.02 Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to the
Certificateholders on any Payment Date as provided in Section 5.01 shall be
made to the Certificateholders of record on the preceding Record Date by wire
transfer, in immediately available funds, to the account of each
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholders shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior
to
such Payment Date or, if not, by check mailed to such Certificateholder at
the
address of such Certificateholder appearing in the Certificate
Register.
Section
5.03 Signature
on Returns.
The
REMIC Administrator, as agent for the Owner Trustee, shall sign on behalf of
the
Trust the tax returns of REMIC I, REMIC II and REMIC III. The Owner
Trustee shall give the REMIC Administrator all such powers of attorney as are
needed to enable the REMIC Administrator to prepare and sign such tax
returns.
Section
5.04 Statements
to Certificateholders.
On each
Payment Date, the Certificate Paying Agent shall make available on its website
the statement or statements provided to the Owner Trustee and the Certificate
Paying Agent by the Indenture Trustee.
Section
5.05 Tax
Elections.
Each
Certificateholder agrees by its purchase of a Certificate to treat the Trust,
other than the portion of the Trust Estate constituting the REMICs, as a
domestic eligible entity with a single owner electing to be disregarded as
a
separate entity for purposes of federal and state income tax, franchise tax
and
any other tax measured in whole or in part by income, with the Notes being
debt
of the Trust, as further set forth in Section 2.06. For income tax purposes
the parties hereto intend that the transaction set forth herein shall not be
a
taxable event.
ARTICLE
VI
CONCERNING
THE OWNER TRUSTEE
Section
6.01 Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by it constituting part of the Owner
Trust
Estate upon the terms of the Basic Documents and this Trust Agreement. The
Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to
the
exceptions set forth in the preceding sentence):
(a) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(b) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(c) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, or the Certificates, other
than the certificate of authentication on the Certificates, if executed by
the
Owner Trustee and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(d) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(e) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee or the Servicers under any of the Basic Documents or otherwise
and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Trust Agreement or the Basic Documents
that
are required to be performed by the Indenture Trustee under the Indenture,
the
Servicers under the Servicing Agreement or the Sponsor or the Administrator
under the Administration Agreement; and
(f) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of the Certificateholders, unless the Certificateholders have offered
to the Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence, bad faith or willful misconduct in the performance
of
any such act.
Section
6.02 Furnishing
of Documents.
The
Owner Trustee shall furnish to the Securityholders promptly upon receipt of
a
written reasonable request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trust under the Basic Documents.
Section
6.03 Representations
and Warranties.
The
Owner Trustee hereby represents and warrants to the Depositor, for the benefit
of the Certificateholders, that:
(a) It
is a
banking corporation duly organized and validly existing in good standing under
the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust
Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This
Trust Agreement, assuming due authorization, execution and delivery by the
Depositor, constitutes a valid, legal and binding obligation of the Owner
Trustee, enforceable against it in accordance with the terms hereof subject
to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors’ rights generally and to general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of the Owner Trustee’s knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust
Agreement.
Section
6.04 Reliance;
Advice of Counsel.
(a) The
Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact
or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it at the expense of the Trust. The Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith
by it in accordance with the opinion or advice of any such counsel, accountants
or other such Persons.
Section
6.05 Not
Acting in Individual Capacity.
Except
as provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section
6.06 Owner
Trustee Not Liable for Certificates or Related Documents.
The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall not be taken as the statements
of
the Owner Trustee, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Basic Document or of
the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee
shall
at no time have any responsibility or liability with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to the Certificateholders under this Trust Agreement or the
Noteholders under the Indenture, including, the compliance by the Depositor
or
the Sponsor with any warranty or representation made under any Basic Document
or
in any related document or the accuracy of any such warranty or representation,
or any action of the Certificate Paying Agent, the Certificate Registrar or
the
Indenture Trustee taken in the name of the Owner Trustee.
Section
6.07 Owner
Trustee May Own the Certificates and the Notes.
The
Owner Trustee in its individual or any other capacity may become the owner
or
pledgee of the Certificates or the Notes and may deal with the Depositor, the
Sponsor, the Certificate Paying Agent, the Certificate Registrar and the
Indenture Trustee in transactions with the same rights as it would have if
it
were not Owner Trustee.
ARTICLE
VII
COMPENSATION
OF OWNER TRUSTEE
Section
7.01 Owner
Trustee’s Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder such
fees
as have been separately agreed upon before the date hereof (the “Owner Trustee
Fee”) from the Sponsor, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the Basic Documents, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the Basic Documents which shall be payable by the
Sponsor.
Section
7.02 Indemnification.
The
Sponsor, the Depositor and the Trust (on a joint and several basis) shall
indemnify, defend and hold harmless the Owner Trustee, both as Owner Trustee
and
in its individual capacity, and its successors, assigns, agents and servants
(collectively, the “Indemnified Parties”) from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
“Expenses”) which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Trust Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, provided, that:
(i) the
Sponsor, the Depositor, and the Trust shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from the Owner Trustee’s willful misconduct, gross negligence or bad faith or as
a result of any inaccuracy of a representation or warranty contained in
Section 6.03 expressly made by the Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Sponsor,
the Depositor, and the Trust written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof;
(iii) while
maintaining control over its own defense, the Sponsor shall consult with the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Trust Agreement to the contrary, the Sponsor, the Depositor,
and the Trust shall not be liable for settlement of any claim by an Indemnified
Party entered into without the prior consent of the Sponsor, the Depositor,
or
the Trust, as applicable, which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or
removal of the Owner Trustee or the termination of this Trust Agreement. In
the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section 7.02, the Owner Trustee’s choice of legal counsel,
if other than the legal counsel retained by the Owner Trustee in connection
with
the execution and delivery of this Trust Agreement, shall be subject to the
approval of the Sponsor, which approval shall not be unreasonably withheld.
In
addition, upon written notice to the Owner Trustee and with the consent of
the
Owner Trustee which consent shall not be unreasonably withheld, the Sponsor
has
the right to assume the defense of any claim, action or proceeding against
the
Owner Trustee.
ARTICLE
VIII
TERMINATION
OF TRUST AGREEMENT
Section
8.01 Termination
of Trust Agreement.
(a) The
Trust
shall dissolve upon the earlier of (i) the final distribution of all moneys
or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and this Trust Agreement or (ii) the Final Maturity
Date.
The bankruptcy, liquidation, dissolution, death or incapacity of a
Certificateholder shall not (x) operate to terminate this Trust Agreement or
the
Trust or (y) entitle such Certificateholder’s legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or the Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Neither
the Depositor nor any Certificateholder shall be entitled to revoke or terminate
the Trust.
(c) Notice
of
any dissolution of the Trust, specifying the Payment Date upon which the
Certificateholders shall surrender its Certificate to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to the Certificateholders mailed within
five Business Days of receipt of notice of such dissolution from the Owner
Trustee, stating (i) the Payment Date upon or with respect to which final
payment of the Certificates shall be made upon presentation and surrender of
the
Certificates at the office of the Certificate Paying Agent therein designated,
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Payment Date is not applicable, payments being
made
only upon presentation and surrender of the Certificates at the office of the
Certificate Payment Agent therein specified. The Certificate Paying Agent shall
give such notice to the Owner Trustee and the Certificate Registrar at the
time
such notice is given to the Certificateholders. Upon presentation and surrender
of the Certificates, the Certificate Paying Agent shall cause to be distributed
to the Certificateholders amounts distributable on such Payment Date pursuant
to
Section 5.01.
In
the
event that a Certificateholder shall not surrender its Certificate for
cancellation within six months after the date specified in the above mentioned
written notice, the Certificate Paying Agent shall give a second written notice
to such Certificateholder to surrender the Certificate for cancellation and
receive the final distribution with respect thereto. Subject to applicable
laws
with respect to escheat of funds, if within one year following the Payment
Date
on which final payment of such Certificate was to have been made pursuant to
Section 5.01, such Certificate shall not have been surrendered for
cancellation, the Certificate Paying Agent may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of such Certificate, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Certificate
Distribution Account after exhaustion of such remedies shall be distributed
by
the Certificate Paying Agent to the Class G Certificateholder.
(d) Upon
the
completion of the winding up of the Trust and notification to the Owner Trustee
from the Servicer, who shall be responsible for liquidating the Trust, as to
the
satisfaction of the obligations of the Trust, the Owner Trustee shall cause
the
Certificates of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of
Section 3810(c) of the Statutory Trust Statute, upon which filing the Trust
shall terminate.
Section
8.02 Additional
Termination Requirements.
(a) REMIC I,
REMIC II and REMIC III shall be terminated in accordance with the additional
requirements set forth in Section 10.22 of the Indenture.
(b) Each
Holder of a Security and the Owner Trustee hereby irrevocably approves and
appoints the Indenture Trustee as its attorney-in-fact to adopt a plan of
complete liquidation prepared by the Depositor for each REMIC at the expense
of
the Trust Estate in accordance with the terms and conditions of this
Agreement.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01 Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) long term debt obligations
with a rating of at least A (or the equivalent) by Standard & Poor’s, Fitch
and/or Moody’s. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising
or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital
and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with
the provisions of this Section 9.01, the Owner Trustee shall resign
immediately in the manner and with the effect specified in
Section 9.02.
Section
9.02 Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Depositor and
the
Indenture Trustee. Upon receiving such notice of resignation, the Indenture
Trustee shall promptly appoint a successor Owner Trustee, by written instrument,
in duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee or any
Certificateholder may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Indenture Trustee, or if at any time the Owner Trustee shall
be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property
or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the
Depositor shall remove the Owner Trustee. If the Depositor shall remove the
Owner Trustee under the authority of the immediately preceding sentence, the
Depositor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee,
and shall pay all fees owed to the outgoing Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee.
Section
9.03 Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Owner Trustee
an
instrument accepting such appointment under this Trust Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed
or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect
as
if originally named as Owner Trustee. The predecessor Owner Trustee shall
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Trust Agreement; and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this
Section 9.03, the successor Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
Section
9.04 Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger
or
consolidation to the Rating Agencies.
Section
9.05 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Owner Trust Estate
or any part thereof and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to
Section 9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01 Amendments.
(a) This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section 10.01, provided that any amendment, except as
provided in subparagraph (e) below, be accompanied by an Opinion of Counsel,
to
the Owner Trustee to the effect that such amendment (i) complies with the
provisions of this Section or (ii) will not cause the Trust to be subject
to an entity level tax or cause any of REMIC I, REMIC II or REMIC III to fail
to
qualify as a REMIC for federal income tax purposes.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties), it shall not be
necessary to obtain the consent of the Certificateholders, but the Owner Trustee
shall be furnished with (A) a letter from the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned
to
any of the Notes and (B) an Opinion of Counsel to the effect that such action
will not adversely affect in any material respect the interests of any
Certificateholder shall be obtained.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding (i.e. technical in nature),
it shall not be necessary to obtain the consent of any Securityholder, but
the
Owner Trustee shall be furnished with an Opinion of Counsel that such amendment
is necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Securityholder.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel to the effect that such action will
not
adversely affect in any material respect the interests of any Securityholder
and
(B) either (a) a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
of
the Notes or (b) the consent of the Certificateholders and the Indenture
Trustee; provided, however, that no such amendment shall reduce in any manner
the amount of, or delay the timing of, payments received that are required
to be
distributed on the Certificates without the consent of the
Certificateholders.
(e) If
the
purpose of the amendment is to provide for the holding of the Certificates
in
book-entry form, it shall require the consent of the Certificateholders;
provided, that the Opinion of Counsel specified in subparagraph (a) above shall
not be required.
(f) If
the
purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary
to
obtain the consent of any Securityholder, but the Owner Trustee shall be
furnished with (A) an Opinion of Counsel to the effect that such action will
not
adversely affect in any material respect the interests of any Securityholder
and
(B) a letter from the Rating Agencies that the amendment will not result in
the
downgrading or withdrawal of the rating then assigned to of the
Notes.
(g) Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent
to
the Certificateholders, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Certificateholders or the
Indenture Trustee pursuant to this Section 10.01 to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consent of the Certificateholders provided for in this
Trust Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by the Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may
prescribe.
(h) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents
for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02 No
Legal Title to Owner Trust Estate.
The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and VIII. No transfer, by operation of law or otherwise, of any
right, title or interest of the Certificateholders to and in their beneficial
interest in the Owner Trust Estate shall operate to terminate this Trust
Agreement or the trusts hereunder or entitle any transferee to an accounting
or
to the transfer to it of legal title to any part of the Owner Trust
Estate.
Section
10.03 Limitations
on Rights of Others.
The
provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, and, to the extent expressly
provided herein, the Sponsor, the Indenture Trustee and the Noteholders, and
nothing in this Trust Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim in
the
Owner Trust Estate or under or in respect of this Trust Agreement or any
covenants, conditions or provisions contained herein.
Section
10.04 Notices.
(a) Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, if to the Owner
Trustee, addressed to Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to U.S. Bank National
Association, Structured Finance, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Structured Finance-Home Equity Mortgage Trust
2006-2; if to the Indenture Trustee, U.S. Bank National Association, Corporate
Trust Services, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mailcode: EP-MN-WS3D, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance - ABSC HEMT 2006-2, if to the
Depositor, addressed to Asset Backed Securities Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to the Rating Agencies, addressed
to ▇▇▇▇▇’▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ and to Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; or, as to each party,
at
such other address as shall be designated by such party in a written notice
to
each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Certificateholder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Trust Agreement shall be conclusively presumed to have been
duly given, whether or not such Certificateholder receives such
notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05 Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06 Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07 Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors and the Certificateholders and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
Section
10.08 No
Petition.
The
Owner Trustee, by entering into this Trust Agreement and each Certificateholder,
by accepting a Certificate, hereby covenants and agrees that they will not,
prior to the day that is one year and one day after the date this Trust
Agreement terminates, institute against the Depositor or the Trust, or join
in
any institution against the Depositor or the Trust of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations under the Certificates, the Notes, this
Trust
Agreement or any of the Basic Documents.
Section
10.09 No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that the Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Sponsor, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Trust Agreement, the Certificates or the Basic
Documents.
Section
10.10 Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11 GOVERNING
LAW.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, 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.
Section
10.12 Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understanding pertaining thereto.
Section
10.13 Intention
of the Parties.
b)
It is
the express intent of the parties hereto that the conveyance by the Depositor
to
the Trust pursuant to this Trust Agreement of the Owner Trust Estate be, and
be
construed as, an absolute sale and assignment by the Depositor to the Trust.
Further, it is not intended that the conveyance be deemed to be the grant of
a
security interest in the Loans by the Depositor to the Trust to secure a debt
or
other obligation. However, in the event that the Loans are held to be property
of the Depositor, or if for any reason this Trust Agreement is held or deemed
to
create a security interest in the Loans, then (i) this Trust Agreement shall
be
a security agreement within the meaning of Article 9 of the UCC; (ii) the
conveyances provided for in Section 3.01 shall be deemed to be a grant by
the Depositor to the Trust of, and the Depositor hereby grants to the Trust,
a
security interest in all of the Depositor’s right, title and interest, whether
now owned or hereafter acquired, in and to (A) the Owner Trust Estate; (B)
all accounts, chattel paper, deposit accounts, documents, general intangibles,
goods, instruments, investment property, letter-of-credit rights, letters of
credit, money, and oil, gas, and other minerals, consisting of, arising from,
or
relating to, any of the foregoing; and (C) all proceeds of any of the foregoing;
(iii) the possession or control by the Trust or any other agent of the Trust
of
any of the foregoing property shall be deemed to be possession or control by
the
secured party, or possession or control by a purchaser, for purposes of
perfecting the security interest pursuant to the UCC (including, without
limitation, Sections 9-104, 9-106, 9-313 or 9-314 thereof); and (iv)
notifications to persons holding such property, and acknowledgments, receipts
or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for, the Trust, as
applicable, for the purpose of perfecting such security interest under
applicable law.
(b) The
parties hereto, shall, to the extent consistent with this Trust Agreement,
take
such reasonable actions as may be necessary to ensure that, if this Trust
Agreement were deemed to create a security interest in the Loans, such security
interest would be deemed to be a perfected security interest of first
priority.
IN
WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names
to
be signed hereto by their respective officers thereunto duly authorized, all
as
of the day and year first above written.
|
ASSET BACKED SECURITIES CORPORATION,
as Depositor
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Title:
|
Vice President | |
|
WILMINGTON
TRUST COMPANY,
as Owner Trustee
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Title:
|
Vice President | |
Acknowledged
and Agreed:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Certificate Registrar, REMIC Administrator,
Certificate
Paying Agent and Indenture Trustee
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Title:
|
Assistant Vice President | |
DLJ
MORTGAGE CAPITAL INC.,
as
Sponsor
|
By:
|
/s/ ▇▇▇ ▇▇▇ | |
|
Name:
|
▇▇▇ ▇▇▇ | |
|
Title:
|
Vice President |
EXHIBIT
A
FORM
OF CLASS [1][2]X-[1][2][S] CERTIFICATES
[THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS DESCRIBED IN
THE
TRUST AGREEMENT DATED AS OF APRIL 28, 2006, BETWEEN ASSET BACKED SECURITIES
CORPORATION AND WILMINGTON TRUST COMPANY (THE “AGREEMENT”).][THIS CERTIFICATE
HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY PAYMENTS IN RESPECT OF
PRINCIPAL.]
THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON SATISFACTION OF THE CONDITIONS
IN
SECTION 3.05 OF THE AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND STATE LAWS OR
IS
SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER IN THE FORM OF EXHIBIT
F
TO THE AGREEMENT FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), ANY
PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON
USING “PLAN ASSETS,” WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS
SECTION 2510.3-101, TO ACQUIRE THIS CERTIFICATE (COLLECTIVELY A “PLAN
INVESTOR”), OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICERS AND
THE CERTIFICATE REGISTRAR, OR A CERTIFICATION IN THE FORM OF EXHIBIT F TO THE
AGREEMENT, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT THE
DEPOSITOR, THE OWNER TRUSTEE, THE SERVICERS OR THE CERTIFICATE REGISTRAR TO
ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SPONSOR,
THE
DEPOSITOR, THE SERVICERS, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES.
|
Certificate
No. 1
|
Interest
Rate: [Variable][0.00%]
|
|
Cut-off
Date:
|
[Initial
Notional Amount: $[_________]]
Initial
Class Principal Balance: $0.00
|
|
April
1, 2006
|
Assumed
Final Payment Date: July 2036
|
|
First
Payment Date:
|
Certificate
Percentage Interest of this Certificate: 100%
|
|
May
25, 2006
|
CUSIP:
|
Asset-Backed
Certificate, Series 2006-2, Class [1][2]X-[1][2][S]
evidencing
a percentage interest in [the distribution allocable to the certificates of
the
above-referenced Class with respect to a Trust Estate evidenced by the loans
created by ASSET BACKED SECURITIES CORPORATION (hereinafter called the
“Depositor” which term includes any successor entity under the Agreement
referred to below)][the distribution allocable to the Certificates of the
above-referenced Class with respect to certain Loans (the
“Loans”)].
This
Certificate is payable solely from [certain Loans that are initially][the]
assets of the Trust Estate, and does not represent an obligation of or interest
in the Depositor, the Sponsor, the Servicers, the Special Servicer, the
Indenture Trustee, the Owner Trustee or any of their affiliates. Neither this
Certificate nor any of the Loans is guaranteed or insured by any governmental
agency or instrumentality or by the Depositor, the Sponsor, the Servicers,
the
Special Servicer, the Indenture Trustee, the Owner Trustee or any of their
affiliates. None of the Depositor, the Sponsor, the Servicers, the Special
Servicer, the Indenture Trustee, the Owner Trustee, or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that [__________________]
is the
registered owner of the Certificate Percentage Interest evidenced by this
Certificate (as set forth on the face hereof) in certain distributions with
respect to the Trust Estate, consisting primarily of the Loans conveyed by
the
Depositor. The Trust Estate (as defined herein) was created pursuant to a Trust
Agreement dated April 28, 2006 (as amended and supplemented from time to time,
the “Agreement”) between the Depositor and Wilmington Trust Company, as owner
trustee (the “Owner Trustee,” which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which the such holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Payment Date”), commencing on the first Payment Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the month
immediately preceding the month of such distribution (the “Record Date”)[, in an
amount equal to the pro rata portion evidenced by this Certificate (based on
the
Certificate Percentage Interest stated on the face hereof) of the Class
[1][2]X-[1][2][S] Certificate Distribution Amount required to be distributed
to
the registered holder of this Certificate on such Payment Date]. Distributions
on this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer or check mailed to the Certificateholders of
record in the Certificate Register without the presentation or surrender of
this
Certificate or the making of any notation hereon.
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose in the City and State
of New York.
No
transfer of this Certificate will be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended, and
any
applicable state securities laws or is made in accordance with said Act and
laws. In the event that such a transfer is to be made, (i) the Certificate
Registrar or the Depositor may require an opinion of counsel acceptable to
and
in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer is exempt (describing the applicable exemption
and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described in the Agreement and (iii) the Certificate Registrar
shall
require the transferee to execute an investment letter in the form described
by
the Agreement, which investment letter shall not be at the expense of the Trust,
the Owner Trustee, the Certificate Registrar or the Depositor. If a
Certificateholder desires to effect such transfer, it shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Depositor, the Servicers,
the Special Servicer, the Indenture Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws. In connection with any
transfer of this Certificate, the Certificate Registrar (unless otherwise
directed by the Depositor) will require either (i) a representation letter,
in
the form of Exhibit F to the Agreement, stating that the transferee is not
an
employee benefit or other plan subject to the prohibited transaction
restrictions or the fiduciary responsibility requirements of ERISA or Section
4975 of the Code (“Plan”), any person acting, directly or indirectly, on behalf
of any such plan or any person using the “plan assets,” within the meaning of
the Department of Labor regulations at 29 C.F.R. §2510.3-101, to effect such
acquisition (collectively, a “Plan Investor”) or (ii) if such transferee is
a Plan Investor, an opinion of counsel acceptable to and in form and substance
satisfactory to the Depositor, the Owner Trustee, the Servicers and the
Certificate Registrar to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Servicers or the Certificate
Registrar to any obligation or liability in addition to those undertaken in
the
Agreement.
This
Certificate is one of a duly authorized Certificate designated as Home Equity
Mortgage Trust 2006-2, Asset-Backed Certificates, Class [1][2]X-[1][2][S],
of
the Series specified hereon. All terms used in this Certificate which are
defined in the Agreement shall have the meanings assigned to them in the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the [funds on deposit in the Certificate Distribution Account
that have been released from the Lien of the Indenture][Loans] for payment
hereunder and that neither the Owner Trustee in its individual capacity nor
the
Depositor is personally liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
[The
Certificateholder acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of April 28, 2006,
between Home Equity Mortgage Trust 2006-2 (the “Trust”) and U.S. Bank National
Association, as Indenture Trustee (the “Indenture”).]
The
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that such Certificateholder will not, prior to the day one year and one day
after the date the Trust Agreement terminates, institute against the Depositor
or the Trust, or join in any institution against the Depositor or the Trust
of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the Basic
Documents.
The
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Agreement and
will not cause the Trust to be subject to an entity level tax. If the purpose
of
the amendment is to correct any mistake, eliminate any inconsistency, cure
any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Securityholder, but the Owner Trustee shall be
furnished with a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
of
the Notes. If the purpose of the amendment is to prevent the imposition of
any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Securityholder, but the Owner
Trustee shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Securityholder. If the purpose of the amendment is
to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any of the Notes or
(b)
the consent of the Certificateholders and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the time of, payments received that are required to be distributed on
the
Certificates without the consent of the Certificateholders, or (ii) reduce
the aforesaid Certificate Percentage Interest required to consent to any such
amendment without the consent of 100% of the Certificate Percentage
Interest.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies of the Certificate Registrar maintained in the City of and State of
New
York, accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the registered holder of this
Certificate or the such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Certificate Percentage Interest will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Agreement is the Indenture Trustee.
No
service charge will be made for any such registration of transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a
sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of Delaware.
The
obligations created by the Agreement in respect of the Certificates and the
Trust created thereby shall terminate upon the earlier of (i) the final
distribution of all moneys or other property or proceeds of the Trust Estate
in
accordance with the terms of the Indenture and the Agreement or (ii) the Final
Maturity Date.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
|
By
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
|
| Dated: April 28, 2006 |
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [1][2]X-[1][2][S] Certificates referred to in the within
mentioned Agreement.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as Owner Trustee
|
By:
|
||
| Authorized Signatory |
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
(Please
print or type name and address, including postal zip code, of
assignee)
|
|
the
within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
|
|
to
transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the
premises
|
Dated:
| */ | |||
|
*/
|
_________________
*/
NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other “signature guarantee program” as may be
determined by the Certificate Registrar in addition to, or in substitution
for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
______________________
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
EXHIBIT
B
FORM
OF CERTIFICATE OF TRUST
OF
[____________________________________]
THIS
Certificate of Trust of [______________] (the “Trust”), is being duly executed
and filed by the undersigned, as trustee, to form a statutory trust under the
Delaware Statutory Trust Act (12 Del.
C.§
3801
et seq.)
(the
“Act”).
1. Name.
The
name of the statutory trust formed hereby is
[____________________].
2. Delaware
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is [____________________], Attention: [________________________].
3. Effective
Date.
This
Certificate of Trust shall be effective [__________________].
IN
WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust
in
accordance with Section 3811(a) of the Act.
[________________________________],
as
trustee
By:_______________________________
Name:
Title:
EXHIBIT
C
FORM
OF RULE 144A INVESTMENT REPRESENTATION
DESCRIPTION
OF RULE 144A SECURITIES, INCLUDING NUMBERS:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and
that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another “qualified institutional buyer” as defined in Rule
144A under the ▇▇▇▇ ▇▇▇.
2.
The
Buyer, pursuant to Section 3.05 of the Agreement, warrants and represents
to, and covenants with the Owner Trustee, the Depositor and the Indenture
Trustee (as such terms are defined in the Trust Agreement (the “Agreement”),
dated as of April 28, 2006 between Asset Backed Securities Corporation, as
Depositor, and Wilmington Trust Company, as Owner Trustee) as
follows:
a. The
Buyer
understands that the Rule 144A Securities have not been registered under the
1933 Act or the securities laws of any state.
b. The
Buyer
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The
Buyer
has been furnished with all information regarding the Rule 144A Securities
that
it has requested from the Seller, the Indenture Trustee, the Owner Trustee,
the
Servicers or the Special Servicer.
d. Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, nor
will it act, nor has it authorized or will it authorize any person to act,
in
such manner with respect to the Rule 144A Securities.
e. The
Buyer
is a “qualified institutional buyer” as that term is defined in Rule 144A under
the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale
to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule
144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or
(ii) pursuant to another exemption from registration under the 1933
Act.
3.
The
Buyer represents that:
(i) either
(a) or (b) is satisfied, as marked below:
____ a. The
Buyer
is not any employee benefit or other plan subject to the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), a Person acting,
directly or indirectly, on behalf of any such plan or any Person acquiring
such
Certificates with “plan assets” of a Plan within the meaning of the Department
of Labor regulation promulgated at 29 C.F.R. §2510.3-101; or
____ b. The
Buyer
has provided the Depositor, the Owner Trustee, the Certificate Registrar and
the
Servicers with an opinion of counsel, satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer, to the effect that the
purchase and holding of a Certificate by or on behalf of the Buyer is
permissible under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicers to
any
obligation or liability (including liabilities under ERISA or Section 4975
of the Code) in addition to those undertaken in the Trust Agreement, which
opinion of counsel shall not be an expense of the Depositor, the Owner Trustee,
the Certificate Registrar or the Servicers; and
(ii) the
Buyer
is familiar with the prohibited transaction restrictions and fiduciary
responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this certification is made is relying and will continue to rely on the
statements made in this paragraph 3.
4.
This
document 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 document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
|
Print
Name of Seller
|
Print
Name of Buyer
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
|||
|
No:
|
No:
|
|||
|
Date:
|
Date:
|
|||
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2.
In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $_________ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
|
____
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
|
|
____
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any state, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised
by the
state or territorial banking commission or similar official or
is a
foreign bank or equivalent institution, and (b) has an audited
net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
|
|
____
|
QIB.
An entity, all of the equity owners of which are “qualified institutional
buyers.”
|
|
____
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a state or federal
authority having supervision over any such institutions or is a
foreign
savings and loan association or equivalent institution and (b)
has an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
|
____
|
Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
|
|
____
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant
business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a
state or
territory or the District of Columbia.
|
|
____
|
state
or Local Plan.
The Buyer is a plan established and maintained by a state, its
political
subdivisions, or any agency or instrumentality of the state or
its
political subdivisions, for the benefit of its employees.
|
|
____
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of 1974.
|
|
____
|
Investment
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
|
|
____
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301 (c) or (d)
of the Small Business Investment Act of 1958.
|
|
____
|
Business
Development Company.
The Buyer is a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of
1940.
|
|
____
|
Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans established and maintained
by
a state, its political subdivisions, or any agency or instrumentality
of
the state or its political subdivisions, for the benefit of its
employees,
or (b) employee benefit plans within the meaning of Title I of
the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or
H.R. 10
plans.
|
____________________________
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
3.
The
term “securities” as used herein does not include (i) securities of issuers that
are affiliated with the Buyer, (ii) securities that are part of an unsold
allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii)
bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5.
The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties related to the Rule 144A Securities are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer may be in reliance on Rule 144A.
____ ____ Will
the
Buyer be purchasing the Rule 144A
Yes No
Securities
only for the Buyer’s own account?
6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7.
The
Buyer will notify each of the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice is given,
the Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of
this certification as of the date of such purchase.
|
|
Print
Name of Buyer
|
|||
|
|
By:
|
|||
|
|
Name:
|
|||
|
|
Title:
|
|||
| Date: | ||||
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer’s Family of Investment Companies, owned at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer’s Family of
Investment Companies, the cost of such securities was used.
|
____
|
|
The
Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer’s most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
| ____ | The Buyer is part of a Family of Investment Companies which owned in the aggregate $_________ in securities (other than the excluded securities referred to below) as of the end of the Buyer’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
3.
The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4.
The
term “securities” as used herein does not include (i) securities of issuers that
are affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject
to
a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The
Buyer
is familiar with Rule 144A and understands that each of the parties to which
this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer’s
own account.
6.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
IF
AN ADVISER:
|
||
| Print Name of Buyer | ||
| Date:____________________________________________________ | ||
EXHIBIT
D
FORM
OF INVESTOR REPRESENTATION LETTER
________,
20_
Asset
Backed Securities Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Worldwide Securities Services/ Structured Finance Services-Home Equity Mortgage
Trust 2006-2
| Re: |
Home
Equity Mortgage Trust 2006-2, Asset-Backed
Certificates,
Series 2006-2, Class
[1P][1X-1][1X-2][1X-S][G][2P][2X-1][2X-2]
|
Ladies
and Gentlemen:
_____________
(the “Purchaser”) intends to purchase from_________(the “Seller”) _____%
Certificate Percentage Interest of the Home Equity Mortgage Trust 2006-2,
Asset-Backed Certificates, Series
2006-2,
Class
[1P][1X-1][1X-2][1X-S][G][2P][2X-1][2X-2]
(the
“Certificate”), issued pursuant to the Trust Agreement (the “Trust Agreement”),
dated as of April 28, 2006 between Asset Backed Securities Corporation (the
“Depositor”) and Wilmington Trust Company, as owner trustee (the “Owner
Trustee”), as acknowledged and agreed by U.S. Bank National Association, as
Certificate Registrar. All terms used herein and not otherwise defined shall
have the meanings set forth in the Trust Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the
Certificate Registrar that:
1.
The
Purchaser understands that (a) the Certificate has not been and will not be
registered or qualified under the Securities Act of 1933, as amended (the “Act”)
or any state securities law, (b) the Depositor is not required to so register
or
qualify the Certificate, (c) the Certificate may be resold only if registered
and qualified pursuant to the provisions of the Act or any state securities
law,
or if an exemption from such registration and qualification is available, (d)
the Trust Agreement contains restrictions regarding the transfer of the
Certificate and (e) the Certificate will bear a legend to the foregoing
effect.
2.
The
Purchaser is acquiring the Certificate for its own account for investment only
and not with a view to or for sale in connection with any distribution thereof
in any manner that would violate the Act or any applicable state securities
laws.
3.
The
Purchaser is (a) a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters, and, in particular,
in such matters related to securities similar to the Certificate, such that
it
is capable of evaluating the merits and risks of investment in the Certificate,
(b) able to bear the economic risks of such an investment and (c) an
“accredited investor” within the meaning of Rule 501 (a) promulgated pursuant to
the Act.
4.
The
Purchaser has been furnished with, and has had an opportunity to review (a)
a
copy of the Trust Agreement and (b) such other information concerning the
Certificate, the Loans and the Depositor as has been requested by the Purchaser
from the Depositor or the Seller and is relevant to the Purchaser’s decision to
purchase the Certificate. The Purchaser has had any questions arising from
such
review answered by the Depositor or the Seller to the satisfaction of the
Purchaser.
5.
The
Purchaser has not and will not nor has it authorized or will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in the Certificates or any other similar security
to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of the Certificates, any interest in the
Certificates or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest
in
any Certificate or any other similar security with any person in any manner,
(d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of the Certificates under the Act, that would
render the disposition of the Certificates a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or otherwise
transfer the Certificates, except in compliance with the provisions of the
Trust
Agreement.
6.
The
Purchaser represents:
(iii) that
either (a) or (b) is satisfied, as marked below:
____ a.
The
Purchaser is not any employee benefit or other plan subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
a Person acting, directly or indirectly, on behalf of any such plan or any
Person acquiring the Certificate with “plan assets” of a Plan within the meaning
of the Department of Labor regulation promulgated at 29 C.F.R. §2510.3-101;
or
____ b.
The
Purchaser has provided the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicers with an opinion of counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicers,
to
the effect that the purchase and holding of the Certificate by or on behalf
of
the Purchaser is permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or Section 4975
of the Code (or comparable provisions of any subsequent enactments) and will
not
subject the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense of the Depositor,
the Owner Trustee, the Certificate Registrar or the Servicers; and
(iv) the
Purchaser is familiar with the prohibited transaction restrictions and fiduciary
responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this certification is made is relying and will continue to rely on the
statements made in this paragraph 6.
7.
The
Purchaser is not a non-United States person.
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Very
truly yours,
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By:
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Name:
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Title:
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EXHIBIT
E
FORM
OF TRANSFEROR REPRESENTATION LETTER
_________,
20__
Asset
Backed Securities Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Worldwide Securities Services/ Structured Finance Services-Home Equity Mortgage
Trust 2006-2
| Re: |
Home
Equity Mortgage Trust 2006-2, Asset-Backed
Certificates,
Series 2006-2, Class
[1P][1X-1][1X-2][1X-S][G][2P][2X-1][2X-2]
|
Ladies
and Gentlemen:
______________
(the “Purchaser”) intends to purchase from ________ (the “Seller”) _____%
Certificate Percentage Interest of the Home Equity Mortgage Trust 2006-2,
Home-Equity Loan-Backed Certificates, Series 2006-2 Class [1P][1X-1][1X-2][1X-S]
[G][2P][2X-1][2X-2] (the “Certificate”), issued pursuant to the Trust Agreement
(the “Trust Agreement”), dated as of April 28, 2006 between Asset Backed
Securities Corporation, as depositor (the “Depositor”) and Wilmington Trust
Company, as owner trustee (the “Owner Trustee”), as acknowledged and agreed by
U.S. Bank National Association, as certificate registrar (the “Certificate
Registrar”). All terms used herein and not otherwise defined shall have the
meanings set forth in the Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Depositor and the
Certificate Registrar that:
Neither
the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred the Certificate, any interest in the
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in the Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to the Certificate, any interest in the Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificate under the Securities Act of 1933
(the “Act”), that would render the disposition of the Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in
any
manner set forth in the foregoing sentence with respect to the Certificate.
The
Seller has not and will not sell or otherwise transfer any of the Certificate,
except in compliance with the provisions of the Trust Agreement.
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Very
truly yours,
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By:
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Name:
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Title:
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EXHIBIT
F
FORM
OF ERISA REPRESENTATION LETTER
____________,
20__
Asset
Backed Securities Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Worldwide Securities Services/ Structured Finance Services-Home Equity Mortgage
Trust 2006-2
| Re: |
Home
Equity Mortgage Trust 2006-2, Asset-Backed
Certificates,
Series 2006-2, Class
[1P][1X-1][1X-2][1X-S][G][2P][2X-1][2X-2]
|
Dear
Sirs:
____________________________
(the “Transferee”) intends to acquire from ______________(the “Transferor”)
$_______ of Home Equity Mortgage Trust 2006-2, Asset-Backed Certificates, Series
2006-2, Class [1P][1X-1][1X-2][1X-S][G][2P][2X-1][2X-2] (the “Certificates”),
issued pursuant to a Trust Agreement (the “Trust Agreement”) dated April 28,
2006 among Asset Backed Securities Corporation, as depositor (the “Depositor”)
and Wilmington Trust Company, as trustee (the “Owner Trustee”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
thereto in the Trust Agreement.
The
Transferee hereby certifies, represents and warrants to, and covenants with,
the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicers that
the Certificate (i) is not being acquired by, and will not be transferred to,
any employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or other retirement
arrangement, including individual retirement accounts and annuities, ▇▇▇▇▇
plans
and bank collective investment funds and insurance company general or separate
accounts in which such plans, accounts or arrangements are invested, that is
subject to Section 406 of ERISA or Section 4975 of the Internal
Revenue Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not
being acquired with “plan assets” of a Plan within the meaning of the Department
of Labor (“DOL”) regulation, 29 C.F.R. § 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation, 29 C.F.R. § 2510.3-101; and
(2) The
Transferee is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this certification is made is relying and will continue to rely on the
statements made herein.
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Very
truly yours,
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By:
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||
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Name:
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||
|
Title:
|
||
EXHIBIT
G
FORM
OF CERTIFICATE OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status is delivered pursuant to Section 3.05 of
the Trust Agreement dated as of April 28, 2006 (the “Trust Agreement”), between
Asset Backed Securities Corporation, as depositor (the “Depositor”), and
Wilmington Trust Company, as owner trustee, in connection with the acquisition
of, transfer to or possession by the undersigned, whether as beneficial owner
(the “Beneficial Owner”), or nominee on behalf of the Beneficial Owner of Home
Equity Mortgage Trust 2006-2, Asset-Backed Certificates, Series 2006-2, Class
[G] [[1][2]A-R] (the “Certificates”). Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each holder shall submit with the Certificate an IRS Form W-9 relating
to such holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificates held by the undersigned, the undersigned
hereby certifies:
Part
I
- Complete
Either A or B
A. Individual
as Beneficial Owner
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1.
|
I
am (the Beneficial Owner is ) not a non-resident alien for purposes
of
U.S. income taxation;
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| 2. |
My
(the Beneficial Owner’s) name and home address
are:
|
|
________________________________
________________________________
________________________________ ;
and
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3.
|
My
(the Beneficial Owner’s) U.S. taxpayer identification number (Social
Security Number) is
_______________________.
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B. Corporate,
Partnership or Other Entity as Beneficial Owner
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1.
|
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
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2..
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The
Beneficial Owner’s office address and place of incorporation (if
applicable) is
|
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________________________________
________________________________
________________________________ ;
and
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3.
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The
Beneficial Owner’s U.S. employer identification number is .
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Part
II
- Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this Certificate has been made in reliance upon information contained
in:
an IRS
Form W-9
a form
such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certificate of Non-Foreign Status
to the Trust promptly after such change.
Part
III
- Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this certificate may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
_____________________________________
Name
_____________________________________
Title
(if
applicable)
_____________________________________
Signature
and Date
*NOTE:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
H
RESERVED
EXHIBIT
I
FORM
OF CLASS [1][2]A-R CERTIFICATES
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRUST AGREEMENT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE DEPOSITOR AND THE
INDENTURE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
INDENTURE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR
ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO
TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING,
(C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED
ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS
PARAGRAPH.
|
Certificate
No. 1
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Interest
Rate: Variable
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Cut-off
Date:
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Class
Certificate Balance: $100
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April
1, 2006
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Assumed
Final Payment Date: July 2036
|
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First
Payment Date:
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Certificate
Percentage Interest of this Certificate: 100%
|
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May
25, 2006
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CUSIP:
|
Home
Equity Mortgage Trust 2006-2,
Asset-Backed
Certificate, Series 2006-2, Class [1][2]A-R
evidencing
percentage interest in the distribution allocable to the certificates of the
above-referenced Class with respect to a Trust Estate evidenced by the loans
created by ASSET BACKED SECURITIES CORPORATION (hereinafter called the
“Depositor” which term includes any successor entity under the Agreement
referred to below).
This
Certificate is payable solely from the assets of the Trust Estate, and does
not
represent an obligation of or interest in the Depositor, the Sponsor, the
Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee or
any
of their affiliates. Neither this Certificate nor any of the Loans is guaranteed
or insured by any governmental agency or instrumentality or by the Depositor,
the Sponsor, the Servicers, the Special Servicer, the Indenture Trustee, the
Owner Trustee or any of their affiliates. None of the Depositor, the Sponsor,
the Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee,
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that [_________________] is the registered owner of the Certificate
Percentage Interest evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Trust Estate, consisting
primarily of the Loans conveyed by the Depositor. The Trust Estate (as defined
herein) was created pursuant to a Trust Agreement dated April 28, 2006 (as
amended and supplemented from time to time, the “Agreement”) between the
Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee,”
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which the such holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Payment Date”), commencing on the first Payment Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the month
immediately preceding the month of such distribution (the “Record Date”), in an
amount equal to the pro rata portion evidenced by this Certificate (based on
the
Certificate Percentage Interest stated on the face hereof) of the Class
[1][2]A-R Certificate Distribution Amount required to be distributed to the
registered holder of this Certificate on such Payment Date. Distributions on
this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer or check mailed to the Certificateholders of
record in the Certificate Register without the presentation or surrender of
this
Certificate or the making of any notation hereon.
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose in the City and State
of New York.
Each
Certificateholder of this Certificate will be deemed to have agreed to be bound
by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must
be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery
to
the Indenture Trustee of, among other things, an affidavit to the effect that
it
is a United States Person and Permitted Transferee, (iii) any attempted or
purported transfer of any Ownership Interest in this Certificate in violation
of
such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have
the
right, in its sole discretion and without notice to the Certificateholder of
this Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may
choose.
In
connection with any transfer of this Certificate, the Certificate Registrar
(unless otherwise directed by the Depositor) will require either (i) a
representation letter, in the form of Exhibit J-1 to the Agreement, stating
that
the transferee is not an employee benefit or other plan subject to the
prohibited transaction restrictions or the fiduciary responsibility requirements
of ERISA or Section 4975 of the Code (“Plan”), any person acting, directly or
indirectly, on behalf of any such plan or any person using the “plan assets,”
within the meaning of the Department of Labor regulations at 29 C.F.R.
§2510.3-101, to effect such acquisition (collectively, a “Plan Investor”) or
(ii) if such transferee is a Plan Investor, an opinion of counsel
acceptable to and in form and substance satisfactory to the Depositor, the
Owner
Trustee, the Servicers and the Certificate Registrar to the effect that the
purchase or holding of this Certificate is permissible under applicable law,
will not constitute or result in a prohibited transaction under Section 406
of
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the Servicers
or the Certificate Registrar to any obligation or liability in addition to
those
undertaken in the Agreement.
This
Certificate is one of a duly authorized Certificate designated as Home Equity
Mortgage Trust 2006-2, Asset-Backed Certificates, Class [1][2]A-R, of the Series
specified hereon. All terms used in this Certificate which are defined in the
Agreement shall have the meanings assigned to them in the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Certificate Distribution Account
that
have been released from the Lien of the Indenture for payment hereunder and
that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
The
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that such Certificateholder will not, prior to the day one year and one day
after the date this Trust Agreement terminates, institute against the Depositor
or the Trust, or join in any institution against the Depositor or the Trust
of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the Basic
Documents.
The
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Agreement and
will not cause the Trust to be subject to an entity level tax. If the purpose
of
the amendment is to correct any mistake, eliminate any inconsistency, cure
any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Securityholder, but the Owner Trustee shall be
furnished with a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
of
the Notes. If the purpose of the amendment is to prevent the imposition of
any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Securityholder, but the Owner
Trustee shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Securityholder. If the purpose of the amendment is
to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any of the Notes or
(b)
the consent of the Certificateholders and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the time of, payments received that are required to be distributed on
the
Certificates without the consent of the Certificateholders, or (ii) reduce
the aforesaid Certificate Percentage Interest required to consent to any such
amendment without the consent of 100% of the Certificate Percentage
Interest.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies of the Certificate Registrar maintained in the City of and State of
New
York, accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the registered holder of this
Certificate or the such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Certificate Percentage Interest will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Agreement is the Indenture Trustee.
No
service charge will be made for any such registration of transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a
sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of Delaware.
The
obligations created by the Agreement in respect of the Certificates and the
Trust created thereby shall terminate upon the earlier of (i) the final
distribution of all moneys or other property or proceeds of the Trust Estate
in
accordance with the terms of the Indenture and the Agreement or (ii) the Final
Maturity Date.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
HOME
EQUITY MORTGAGE TRUST
2006-2
|
By
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
|
| Dated: April 28, 2006 |
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [1][2]A-R Certificates referred to in the within mentioned
Agreement.
WILMINGTON
TRUST COMPANY, not in its
individual
capacity but solely as Owner Trustee
By:__________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED THE UNDERSIGNED HEREBY SELLS, ASSIGNS AND TRANSFERS UNTO
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
(Please
print or type name and address, including postal zip code, of
assignee)
|
|
the
within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
|
|
to
transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the
premises
|
Dated:
_____________________________________ */
Signature
Guaranteed:
___________________________
*/
*/
NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other “signature guarantee program” as may be
determined by the Certificate Registrar in addition to, or in substitution
for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
|
EXHIBIT
J-1
FORM
OF TRANSFER AFFIDAVIT AND AGREEMENT
[NAME
OF
OFFICER], being first duly sworn, deposes and says:
1. That
he
is [Title of Officer] of [Name of Owner] (record or beneficial owner of the
Home
Equity Mortgage Trust 2006-2,
2. Asset-Backed
Certificate, Series 2006-2, Class [G] [[1][2]A-R] (the “Owner”)), a
[savings institution] [corporation] duly organized and existing under the laws
of [the State of ]
[the
United States], on behalf of which he makes this affidavit and
agreement.
3. That
the
Owner (i) is not and will not be a “disqualified organization” or an electing
large partnership as of [date of transfer] within the meaning of Sections
860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986, as
amended (the “Code”) or an electing large partnership under Section 775(a)
of the Code, (ii) will endeavor to remain other than a disqualified organization
for so long as it retains its ownership interest in the Class [G]
[[1][2]A-R] Certificates, and (iii) is acquiring the Class [G] [[1][2]A-R]
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a “disqualified organization”
means an electing large partnership under Section 775 of the Code, the
United States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality all
of
the activities of which are subject to tax and, except for the Federal Home
Loan
Mortgage Corporation, a majority of whose board of directors is not selected
by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers’ cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
4. That
the
Owner is aware (i) of the tax that would be imposed on transfers of
Class [G] [[1][2]A-R] Certificates to disqualified organizations or
electing large partnerships, under the Code, that applies to all transfers
of
Class [G] [[1][2]A-R] Certificates after March 31, 1988; (ii) that such tax
would be on the transferor (or, with respect to transfers to electing large
partnerships, on each such partnership), or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a disqualified
organization, on the agent; (iii) that the person (other than with respect
to
transfers to electing large partnerships) otherwise liable for the tax shall
be
relieved of liability for the tax if the transferee furnishes to such person
an
affidavit that the transferee is not a disqualified organization and, at the
time of transfer, such person does not have actual knowledge that the affidavit
is false; and (iv) that the Class [G] [[1][2]A-R] Certificates may be
“noneconomic residual interests” within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
5. That
the
Owner is aware of the tax imposed on a “pass-through entity” holding
Class [G] [[1][2]A-R] Certificates if either the pass-through entity is an
electing large partnership under Section 775 of the Code if at any time
during the taxable year of the pass-through entity a disqualified organization
is the record holder of an interest in such entity. (For this purpose, a “pass
through entity” includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
6. The
Owner
is a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in, or under the laws of, the United States
or
any political subdivision thereof (except in the case of a partnership, to
the
extent provided in Treasury regulations), or an estate that is described in
Section 7701(a)(30)(D) of the Code, or a trust that is described in
Section 7701(a)(30)(E) of the Code.
7. That
the
Owner is aware that the Certificate Registrar will not register the transfer
of
any Class [G] [[1][2]A-R] Certificates unless the transferee, or the
transferee’s agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows
or believes that any of the representations contained in such affidavit and
agreement are false.
8. That
the
Owner has reviewed the restrictions set forth on the face of the Class [G]
[[1][2]A-R] Certificates and the provisions of Section 3.05 of the Trust
Agreement under which the Class [G] [[1][2]A-R] Certificates were issued
(in particular, clause (i)(A) and (i)(B) of Section 3.05 which authorize
the Certificate Registrar to deliver payments to a person other than the Owner
and negotiate a mandatory sale by the Indenture Trustee in the event the Owner
holds such Certificates in violation of Section 3.05). The Owner expressly
agrees to be bound by and to comply with such restrictions and
provisions.
9. That
the
Owner consents to any additional restrictions or arrangements that shall be
deemed necessary upon advice of counsel to constitute a reasonable arrangement
to ensure that the Class [G] [[1][2]A-R] Certificates will only be owned,
directly or indirectly, by an Owner that is not a disqualified
organization.
10. The
Owner’s Taxpayer Identification Number is .
11. This
affidavit and agreement relates only to the Class [G] [[1][2]A-R]
Certificates held by the Owner and not to any other holder of the Class [G]
[[1][2]A-R] Certificates. The Owner understands that the liabilities described
herein relate only to the Class [G] [[1][2]A-R] Certificates.
12. That
no
purpose of the Owner relating to the transfer of any of the Class [G]
[[1][2]A-R] Certificates by the Owner is or will be to impede the assessment
or
collection of any tax.
13. That
the
Owner has no present knowledge or expectation that it will be unable to pay
any
United States taxes owed by it so long as any of the Certificates remain
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the person from whom it acquired the Class [G] [[1][2]A-R] Certificate
that the Owner intends to pay taxes associated with holding such Class [G]
[[1][2]A-R] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the
Class [G] [[1][2]A-R] Certificate.
14. That
the
Owner has no present knowledge or expectation that it will become insolvent
or
subject to a bankruptcy proceeding for so long as any of the Class [G]
[[1][2]A-R] Certificates remain outstanding.
15. The
Purchaser is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the “Code”), or an investment manager, named fiduciary or a
trustee of any such plan, or any other Person acting, directly or indirectly,
on
behalf of or purchasing any Certificate with “plan assets” of any such
plan.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title
of
Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ____ day of __________, ____________.
|
|
By:
|
|||
|
|
|
[Name
of Officer]
|
||
|
|
|
[Title
of Officer]
|
||
[Corporate
Seal]
ATTEST:
_______________________________-
[Assistant]
Secretary
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Owner, and acknowledged to me that he executed the same as
his
free act and deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, ____________.
|
NOTARY
PUBLIC
|
||
|
COUNTY
OF
|
||
|
STATE
OF
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|
My
Commission expires the
day of ,
20 .
|
||
EXHIBIT
J-2
FORM
OF TRANSFEROR CERTIFICATE
,
20
Asset
Backed Securities Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Worldwide Securities Services/ Structured Finance Services-Home Equity Mortgage
Trust 2006-2
| Re: |
Home
Equity Mortgage Trust 2006-2, Asset-Backed Certificate,
Series 2006-2, Class [G] [[1][2]A-R]
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the transfer by
(the
“Seller”) to
(the
“Purchaser”) of a [__]% Percentage Interest in the Home Equity Mortgage Trust
2006-2, Asset-Backed Certificates, Series 2006-2, Class [G] [[1][2]A-R]
(the “Certificates”), pursuant to Section 3.05 of the Trust Agreement (the
“Trust Agreement”), dated as of April 28, 2006, between Asset Backed Securities
Corporation, as seller (the “Company”), and Wilmington Trust Company, as owner
trustee (the “Trustee”). All terms used herein and not otherwise defined shall
have the meanings set forth in the Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
1. No
purpose of the Seller relating to the transfer of the Certificate by the Seller
to the Purchaser is or will be to impede the assessment or collection of any
tax.
2. The
Seller understands that the Purchaser has delivered to the Indenture Trustee
and
the Servicers a transfer affidavit and agreement in the form attached to the
Trust Agreement as Exhibit J-1. The Seller does not know or believe that any
representation contained therein is false.
3. The
Seller has at the time of the transfer conducted a reasonable investigation
of
the financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the
Seller has determined that the Purchaser has historically paid its debts as
they
become due and has found no significant evidence to indicate that the Purchaser
will not continue to pay its debts as they become due in the future. The Seller
understands that the transfer of a Class [G] [[1][2]A-R] Certificate may
not be respected for United States income tax purposes (and the Seller may
continue to be liable for United States income taxes associated therewith)
unless the Seller has conducted such an investigation.
4. The
Seller has no actual knowledge that the proposed Transferee is not both a United
States Person and a Permitted Transferee.
|
Very
truly yours,
|
||
|
(Seller)
|
||
|
By:
|
||
|
Name:
|
||
EXHIBIT
K
FORM
OF CLASS [1][2]P CERTIFICATES
THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON SATISFACTION OF THE CONDITIONS
IN
SECTION 3.05 OF THE AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND STATE LAWS OR
IS
SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER IN THE FORM OF EXHIBIT
F
TO THE AGREEMENT FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), ANY
PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON
USING “PLAN ASSETS,” WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS
SECTION 2510.3-101, TO ACQUIRE THIS CERTIFICATE (COLLECTIVELY A “PLAN
INVESTOR”), OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER AND
THE
CERTIFICATE REGISTRAR, OR A CERTIFICATION IN THE FORM OF EXHIBIT F TO THE
AGREEMENT, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT THE
DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER OR THE CERTIFICATE REGISTRAR TO
ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SPONSOR,
THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES.
|
Certificate
No. 1
|
Interest
Rate: Variable
|
|
Cut-off
Date:
|
Class
Certificate Balance: $100
|
|
April
1, 2006
|
Assumed
Final Payment Date: July 25, 2036
|
|
First
Payment Date:
|
Certificate
Percentage Interest of this Certificate: 100%
|
|
May
25, 2006
|
CUSIP:
|
Home
Equity Mortgage Trust 2006-2,
Asset-Backed
Certificate, Series 2006-2, Class [1][2]P
evidencing
percentage interest in the distribution allocable to the certificates of the
above-referenced Class with respect to a Trust Estate evidenced by the loans
created by ASSET BACKED SECURITIES CORPORATION (hereinafter called the
“Depositor” which term includes any successor entity under the Agreement
referred to below).
This
Certificate is payable solely from the assets of the Trust Estate, and does
not
represent an obligation of or interest in the Depositor, the Sponsor, the
Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee or
any
of their affiliates. Neither this Certificate nor any of the Loans is guaranteed
or insured by any governmental agency or instrumentality or by the Depositor,
the Sponsor, the Servicers, the Special Servicer, the Indenture Trustee, the
Owner Trustee or any of their affiliates. None of the Depositor, the Sponsor,
the Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee,
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that [____________________] is the registered owner of the Certificate
Percentage Interest evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Trust Estate, consisting
primarily of the Loans conveyed by the Depositor. The Trust Estate (as defined
herein) was created pursuant to a Trust Agreement dated April 28, 2006 (as
amended and supplemented from time to time, the “Agreement”) between the
Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee,”
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which the such holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Payment Date”), commencing on the first Payment Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the month
immediately preceding the month of such distribution (the “Record Date”), in an
amount equal to the pro rata portion evidenced by this Certificate (based on
the
Certificate Percentage Interest stated on the face hereof) of the Class [1][2]P
Certificate Distribution Amount required to be distributed to the registered
holder of this Certificate on such Payment Date. Distributions on this
Certificate will be made as provided in the Agreement by the Certificate Paying
Agent by wire transfer or check mailed to the Certificateholders of record
in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon.
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose in the City and State
of New York.
No
transfer of this Certificate will be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended, and
any
applicable state securities laws or is made in accordance with said Act and
laws. In the event that such a transfer is to be made, (i) the Certificate
Registrar or the Depositor may require an opinion of counsel acceptable to
and
in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer is exempt (describing the applicable exemption
and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described in the Agreement and (iii) the Certificate Registrar
shall
require the transferee to execute an investment letter in the form described
by
the Agreement, which investment letter shall not be at the expense of the Trust,
the Owner Trustee, the Certificate Registrar or the Depositor. If a
Certificateholder desires to effect such transfer, it shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Depositor, the Servicers,
the Special Servicer, the Indenture Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws. In connection with any
transfer of this Certificate, the Certificate Registrar (unless otherwise
directed by the Depositor) will require either (i) a representation letter,
in
the form of Exhibit F to the Agreement, stating that the transferee is not
an
employee benefit or other plan subject to the prohibited transaction
restrictions or the fiduciary responsibility requirements of ERISA or Section
4975 of the Code (“Plan”), any person acting, directly or indirectly, on behalf
of any such plan or any person using the “plan assets,” within the meaning of
the Department of Labor regulations at 29 C.F.R. §2510.3-101, to effect such
acquisition (collectively, a “Plan Investor”) or (ii) if such transferee is
a Plan Investor, an opinion of counsel acceptable to and in form and substance
satisfactory to the Depositor, the Owner Trustee, the Servicer and the
Certificate Registrar to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Servicer or the Certificate
Registrar to any obligation or liability in addition to those undertaken in
the
Agreement.
This
Certificate is one of a duly authorized Certificate designated as Home Equity
Mortgage Trust 2006-2, Asset-Backed Certificates, Class 1P, of the Series
specified hereon. All terms used in this Certificate which are defined in the
Agreement shall have the meanings assigned to them in the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Certificate Distribution Account
that
have been released from the Lien of the Indenture for payment hereunder and
that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
The
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that such Certificateholder will not, prior to the day one year and one day
after the date the Trust Agreement terminates, institute against the Depositor
or the Trust, or join in any institution against the Depositor or the Trust
of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the Basic
Documents.
The
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Agreement and
will not cause the Trust to be subject to an entity level tax. If the purpose
of
the amendment is to correct any mistake, eliminate any inconsistency, cure
any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Securityholder, but the Owner Trustee shall be
furnished with a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
of
the Notes. If the purpose of the amendment is to prevent the imposition of
any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Securityholder, but the Owner
Trustee shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Securityholder. If the purpose of the amendment is
to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any of the Notes or
(b)
the consent of the Certificateholders and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the time of, payments received that are required to be distributed on
the
Certificates without the consent of the Certificateholders, or (ii) reduce
the aforesaid Certificate Percentage Interest required to consent to any such
amendment without the consent of 100% of the Certificate Percentage
Interest.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies of the Certificate Registrar maintained in the City of and State of
New
York, accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the registered holder of this
Certificate or the such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same class and aggregate Certificate Percentage Interest will be issued
to
the designated transferee. The initial Certificate Registrar appointed under
the
Agreement is the Indenture Trustee.
No
service charge will be made for any such registration of transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a
sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of Delaware.
The
obligations created by the Agreement in respect of the Certificates and the
Trust created thereby shall terminate upon the earlier of (i) the final
distribution of all moneys or other property or proceeds of the Trust Estate
in
accordance with the terms of the Indenture and the Agreement or (ii) the Final
Maturity Date.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
HOME
EQUITY MORTGAGE TRUST 2006-2
|
By
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
|
| Dated: April 28, 2006 |
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [1][2]P Certificates referred to in the within mentioned
Agreement.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as Owner Trustee
By:
____________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
(Please
print or type name and address, including postal zip code, of
assignee)
|
|
the
within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
|
|
to
transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the
premises
|
Dated:
| */ | |||
|
*/
|
_________
*/
NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other “signature guarantee program” as may be
determined by the Certificate Registrar in addition to, or in substitution
for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
|
EXHIBIT
L
FORM
OF CLASS G CERTIFICATES
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRUST AGREEMENT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE DEPOSITOR AND THE
INDENTURE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE INDENTURE TRUSTEE
TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND STATE LAWS OR
IS
SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
INDENTURE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR
ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO
TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING,
(C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED
ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS
PARAGRAPH.
|
Certificate
No. 1
|
Interest
Rate: Adjustable
|
|
Cut-off
Date:
|
Class
Certificate Balance: $0.00
|
|
April
1, 2006
|
Assumed
Final Payment Date: July 25, 2036
|
|
First
Payment Date:
|
Certificate
Percentage Interest of this Certificate: 100%
|
|
May
25, 2006
|
CUSIP:
|
Home
Equity Mortgage Trust 2006-2,
Asset-Backed
Certificate, Series 2006-2, Class G
evidencing
percentage interest in the distribution allocable to the certificates of the
above-referenced Class with respect to a Trust Estate evidenced by the loans
created by ASSET BACKED SECURITIES CORPORATION (hereinafter called the
“Depositor” which term includes any successor entity under the Agreement
referred to below).
This
Certificate is payable solely from the assets of the Trust Estate, and does
not
represent an obligation of or interest in the Depositor, the Sponsor, the
Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee or
any
of their affiliates. Neither this Certificate nor any of the Loans is guaranteed
or insured by any governmental agency or instrumentality or by the Depositor,
the Sponsor, the Servicers, the Special Servicer, the Indenture Trustee, the
Owner Trustee or any of their affiliates. None of the Depositor, the Sponsor,
the Servicers, the Special Servicer, the Indenture Trustee, the Owner Trustee,
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that [____________________] is the registered owner of the Certificate
Percentage Interest evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Trust Estate, consisting
primarily of the Loans conveyed by the Depositor. The Trust Estate (as defined
herein) was created pursuant to a Trust Agreement dated April 28, 2006 (as
amended and supplemented from time to time, the “Agreement”) between the
Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee,”
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which the such holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Payment Date”), commencing on the first Payment Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the related
Accrual Period (the “Record Date”), in an amount equal to the pro rata portion
evidenced by this Certificate (based on the Certificate Percentage Interest
stated on the face hereof) of the Class G Certificate Distribution Amount
required to be distributed to the registered holder of this Certificate on
such
Payment Date. Distributions on this Certificate will be made as provided in
the
Agreement by the Certificate Paying Agent by wire transfer or check mailed
to
the Certificateholders of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon.
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose in the City and State
of New York.
Each
Certificateholder of this Certificate will be deemed to have agreed to be bound
by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must
be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery
to
the Indenture Trustee of, among other things, an affidavit to the effect that
it
is a United States Person and Permitted Transferee, (iii) any attempted or
purported transfer of any Ownership Interest in this Certificate in violation
of
such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have
the
right, in its sole discretion and without notice to the Certificateholder of
this Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may
choose.
No
transfer of this Certificate will be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended, and
any
applicable state securities laws or is made in accordance with said Act and
laws. In the event that such a transfer is to be made, (i) the Certificate
Registrar or the Depositor may require an opinion of counsel acceptable to
and
in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer is exempt (describing the applicable exemption
and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described in the Agreement and (iii) the Certificate Registrar
shall
require the transferee to execute an investment letter in the form described
by
the Agreement, which investment letter shall not be at the expense of the Trust,
the Owner Trustee, the Certificate Registrar or the Depositor. If a
Certificateholder desires to effect such transfer, it shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Depositor, the Servicers,
the Special Servicer and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws. In connection with any transfer of this
Certificate, the Certificate Registrar (unless otherwise directed by the
Depositor) will require either (i) a representation letter, in the form of
Exhibit J-1 to the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction restrictions or
the
fiduciary responsibility requirements of ERISA or Section 4975 of the Code
(“Plan”), any person acting, directly or indirectly, on behalf of any such plan
or any person using the “plan assets,” within the meaning of the Department of
Labor regulations at 29 C.F.R. §2510.3-101, to effect such acquisition
(collectively, a “Plan Investor”) or (ii) if such transferee is a Plan
Investor, an opinion of counsel acceptable to and in form and substance
satisfactory to the Depositor, the Owner Trustee, the Servicer and the
Certificate Registrar to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Servicer or the Certificate
Registrar to any obligation or liability in addition to those undertaken in
the
Agreement.
This
Certificate is one of a duly authorized Certificate designated as Home Equity
Mortgage Trust 2006-2, Asset-Backed Certificates, Class G, of the Series
specified hereon. All terms used in this Certificate which are defined in the
Agreement shall have the meanings assigned to them in the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Certificate Distribution Account
that
have been released from the Lien of the Indenture for payment hereunder and
that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
The
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that such Certificateholder will not, prior to the day one year and one day
after the date this Trust Agreement terminates, institute against the Depositor
or the Trust, or join in any institution against the Depositor or the Trust
of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the Basic
Documents.
The
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Agreement and
will not cause the Trust to be subject to an entity level tax. If the purpose
of
the amendment is to correct any mistake, eliminate any inconsistency, cure
any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Securityholder, but the Owner Trustee shall be
furnished with a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
of
the Notes. If the purpose of the amendment is to prevent the imposition of
any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Securityholder, but the Owner
Trustee shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Securityholder. If the purpose of the amendment is
to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any of the Notes or
(b)
the consent of the Certificateholders and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the time of, payments received that are required to be distributed on
the
Certificates without the consent of the Certificateholders, or (ii) reduce
the aforesaid Certificate Percentage Interest required to consent to any such
amendment without the consent of 100% of the Certificate Percentage
Interest.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies of the Certificate Registrar maintained in the City of and State of
New
York, accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the registered holder of this
Certificate or the such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Certificate Percentage Interest will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Agreement is the Indenture Trustee.
No
service charge will be made for any such registration of transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a
sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of Delaware.
The
obligations created by the Agreement in respect of the Certificates and the
Trust created thereby shall terminate upon the earlier of (i) the final
distribution of all moneys or other property or proceeds of the Trust Estate
in
accordance with the terms of the Indenture and the Agreement or (ii) the Final
Maturity Date.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
HOME
EQUITY MORTGAGE TRUST 2006-2
|
By
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
|
| Dated: April 28, 2006 |
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class G Certificates referred to in the within mentioned
Agreement.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as Owner Trustee
By:
______________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
(Please
print or type name and address, including postal zip code, of
assignee)
|
|
the
within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
|
|
to
transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the
premises
|
Dated:
| */ | |||
|
*/
|
_____
*/
NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other “signature guarantee program” as may be
determined by the Certificate Registrar in addition to, or in substitution
for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
|
|