EXCHANGE TRUST AGREEMENT
EXECUTION
COPY
This
EXCHANGE TRUST AGREEMENT (this “Agreement”)
dated
as of August 1, 2007, is executed by and among Structured Asset Securities
Corporation, as depositor (the “Depositor”)
and
U.S. Bank National Association, solely in its capacity as trustee pursuant
to
the Underlying Trust Agreement (as defined below) (the “Trustee”).
WITNESSETH
WHEREAS,
the Depositor, the Trustee and Aurora Loan Services, LLC, as Master Servicer
have entered into a Trust Agreement (the “Underlying
Trust Agreement”)
dated
as of August 1, 2007 establishing Xxxxxx XS Trust 2007-16N (the “Underlying
Trust”);
WHEREAS,
the Underlying Trust has issued a series of certificates known as Mortgage
Pass-Through Certificates, Series 2007-16N, evidencing the entire beneficial
interest in the Underlying Trust;
WHEREAS,
the Exchange Classes and Exchangeable Class (each as defined herein) will be
issued hereunder and will represent ownership interests in the Related REMIC
Classes (as defined herein);
WHEREAS,
all or a portion of the Exchange Classes may be exchanged for the related
Exchangeable Classes and vice versa; and
WHEREAS,
the parties hereto desire to create this Trust to issue the Exchange Classes
and
the Exchangeable Class subject to the terms and conditions set forth
herein.
NOW
THEREFORE, the parties to this Agreement, in the several capacities hereinabove
set forth, do hereby declare and establish this Agreement and do hereby
undertake and otherwise agree as follows:
ARTICLE
I
DEFINED
TERMS
Capitalized
terms used and not defined herein shall have the respective meanings assigned
to
them in the Underlying Trust Agreement and the rules of construction set forth
therein shall apply hereto. In addition, whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
“Aggregate
Denomination”:
As to
any Class and date of determination, the aggregate of the denominations of
the
Outstanding Certificates of such Class on such date.
“Authorized
Officer”:
The
Chairman of the Board, the President or any Executive Vice President, Senior
Vice President or Vice President.
“Certificate”:
A
grantor trust pass-through security issued hereunder in a book-entry form as
authorized by this Agreement.
“Certificate
Registrar”:
For
the purposes of this Agreement, the Trustee appointed pursuant to the Underlying
Trust Agreement which shall act as Certificate Registrar under this Agreement
subject to the terms and conditions and entitled to the same rights, protections
and indemnities set forth in the Agreement.
“Class”:
Each
Class of Certificates issued or issuable hereunder as set forth in Section
2.02
hereto and each REMIC Class issued under the Underlying Trust
Agreement.
“Class
Balance”:
With
respect to any Exchangeable Class or Exchange Class, at any time, the aggregate
of the Certificate Principal Amounts of all Outstanding Certificates of such
Class.
“Class
Distribution Amount”:
As to
each Exchangeable Class and Exchange Class and any Distribution Date, an amount
equal to the aggregate of the Class Interest Distribution Amount and Class
Principal Distribution Amount on such date. As to each Related REMIC Class
on
any Distribution Date, the sum of (i) the interest distributable to such Class
pursuant to the Underlying Trust Agreement on such date; and (ii) the amount
of
principal distributable to such Class pursuant to the Underlying Trust Agreement
on such date.
“Class
Interest Distribution Amount”:
As to
each Exchangeable Class and Exchange Class, and each Distribution Date, an
amount equal to interest distributable for such class.
“Class
Principal Distribution Amount”:
As to
each Exchangeable Class and Exchange Class, and each Distribution Date, an
amount as to principal equal to (i) the concurrent distribution of principal
in
respect of each Related REMIC Class multiplied by (ii) a fraction, the numerator
of which is the Aggregate Denomination of such Class and the denominator of
which is the Initial Authorized Denomination of such Class.
“Code”:
The
Internal Revenue Code of 1986, as amended, including any successor or amendatory
provisions.
“Combination
Group”:
Any
allowable combination of Certificates as set forth on Appendix A.
“Distribution
Date”:
As to
any Exchangeable Class and Exchange Class, the Distribution Date for the Related
REMIC Classes.
“Exchange
Classes”
or
“Exchange
Certificates”:
Each
Class of Certificates identified as such in Appendix A hereto and issued
hereunder.
“Exchangeable
Classes”
or
“Exchangeable
Certificates”:
Each
Class of Certificates identified as such in Appendix A hereto and issued
hereunder.
“Initial
Authorized Denomination”:
With
respect to any Class and Combination Group, the amount set forth with respect
to
such Class and such Combination Group in Appendix A under the heading “Maximum
Balance” or “Maximum Original Balance.”
“Issue
Date”:
August
31, 2007.
2
“Notional
Amount”:
With
respect to any Notional Exchange Classes, as set forth in Appendix
A
hereto.
“Notional
Exchange Classes”:
Not
applicable.
“Outstanding
Certificate”:
Any
Outstanding Exchange Certificate and Outstanding Exchangeable
Certificate.
“Outstanding
Exchangeable Certificate”:
Any
Exchangeable Certificate issued on the Issue Date; provided,
however,
that
upon the exchange of any Exchangeable Certificate pursuant to Section 2.03
hereof, the Exchangeable Certificate so exchanged shall be deemed no longer
to
be an Outstanding Certificate, and each Exchange Certificate issued in exchange
therefor shall be deemed to be an Outstanding Exchange Certificate.
“Outstanding
Exchange Certificate”:
Any
Exchange Certificate issued on the Issue Date; provided,
however,
that
upon the exchange of any Exchange Certificate pursuant to Section 2.03 hereof,
the Exchange Certificate so exchanged shall be deemed no longer to be an
Outstanding Exchange Certificate, and the Exchangeable Certificate issued in
exchange therefor shall be deemed to be an Outstanding Exchangeable
Certificate.
“Paying
Agent”:
For
the purposes of this Agreement, the Trustee appointed pursuant to the Underlying
Trust Agreement which shall act as Paying Agent under this Trust Agreement
subject to the same terms and conditions and entitled to the same rights,
protections and indemnities set forth in the Underlying Trust
Agreement.
“Prospectus”:
The
prospectus dated August 16, 2007, as supplemented by a prospectus supplement
dated August 30, 2007, relating to the Xxxxxx XS Trust, Mortgage Pass-Through
Certificates Series 2007-16N.
“Realized
Loss Allocation Amount”:
As to
each Exchangeable Class or Exchange Class and Distribution Date, an amount
equal
to the aggregate of the Realized Losses on such Distribution Date in respect
of
the Related REMIC Class or Classes multiplied by a fraction, the numerator
of
which is equal to the Aggregate Denomination of such Exchange or Exchangeable
Class at the close of business on the related Record Date and the denominator
of
which is the Initial Authorized Denomination with respect to such Class.
“Related
REMIC Class”:
As to
any Exchange Class (and each Exchangeable Class of the same Combination Group),
the REMIC Class with the identical class designation as such Exchange
Class.
“REMIC
Class”
or
“REMIC
Certificates”:
Each
of the Underlying REMIC Certificates (as defined in the Underlying Trust
Agreement).
“Trust”:
The
trust created by this Agreement, the corpus of which consists of the Trust
Fund.
“Trust
Account”:
As
defined in Section 3.02 hereof.
3
“Trust
Fund”:
The
corpus of the trust created by this Agreement, consisting of the Trust Account
and the uncertificated interests in the REMIC Certificates issued by the
Underlying Trust and all payments thereon and all rights
thereunder.
“Underlying
Trust”:
As
defined in the Preamble hereof.
ARTICLE
II
THE
TRUST
Section
2.01. Acceptance
of REMIC Certificates.
U.S.
Bank National Association, acting in its capacity as Trustee, acknowledges
the
transfer and assignment to it of the uncertificated REMIC Certificates and
hereby declares that it will hold the same in trust for the Certificateholders
on the terms in this Agreement contained.
Section
2.02. Certificates.
The
Certificates authorized by this Agreement shall consist of each Exchange
Class and Exchangeable Class having the characteristics specified or determined
as provided in Appendix A and the Underlying Trust Agreement, and otherwise
shall be subject to the terms and provisions set forth herein.
Section
2.03. Exchanges.
Certificates shall be exchangeable on the books of DTC, on and after the Closing
Date, by notice to the Trustee and under the terms and conditions hereinafter
set forth.
In
the
case of each Combination Group, Exchange Certificates in such Combination Group
shall be exchangeable for Exchangeable Certificates related to such Combination
Group in respective denominations determined based on the proportion that the
initial Certificate Principal Balances of such Exchange Certificates bear to
the
original Certificate Principal Balances of the related Exchangeable
Certificates, as set forth in Appendix A. Upon any such exchange the portions
of
the Exchange Certificates designated for exchange shall be deemed cancelled
and
replaced by the Exchangeable Certificates issued in exchange therefor.
Correspondingly, Exchangeable Certificates related to a Combination Group may
be
further designated for exchange for Certificates of the Exchange Classes in
such
Combination Group in respective denominations determined based on the proportion
that the initial Certificate Principal Balances of such Exchangeable
Certificates bear to the original Certificate Principal Balances of the related
Exchange Certificates, as set forth in Appendix A. There shall be no limitation
on the number of exchanges authorized pursuant to this Section 2.03, and, except
as set forth below, no fee or other charge shall be payable to the Trustee
or
DTC in connection therewith.
Upon
the
presentation and surrender by any Holder of its Certificates in the appropriate
combination as set forth on Appendix A, such Holder shall hereunder transfer,
assign, set over and otherwise convey to the Trustee, all of such Holder’s
right, title and interest in and to such Certificates, including all payments
of
interest thereon received after the month of the date specified in the notice
(as described in the immediately succeeding paragraph) relating to such
exchange.
4
In
order
to effect an exchange of Certificates, the Certificateholder shall provide
notice to the Trustee (substantially in the form of Exhibit I hereto) in writing
or by e-mail at xxxxxxxxxxx@xxxxxx.xxx no
later
than two Business Days before the proposed exchange date. The exchange date
may
be any Business Day from and including the 25th
day of
the month to the second to the last Business Day of the month subject to the
Trustee’s approval. The notice must be on the Certificateholder’s letterhead,
carry a medallion stamp guarantee and set forth the following information:
the
CUSIP number of both Certificates to be exchanged and Certificates to be
received; outstanding Certificate Balance or Notional Amount and the Original
Certificate Balance or Notional Amount of the Certificates to be exchanged;
the
Certificateholder’s DTC participant number; and the proposed exchange date.
After receiving the notice, the Trustee shall e-mail the Certificateholder
with
wire payment instructions relating to the exchange fee. A notice becomes
irrevocable on the second Business Day before the proposed exchange
date.
Notwithstanding
any other provision herein set forth, a fee shall be payable to the Trustee
in
connection with each exchange equal to $5,000 for each exchange
request.
The
Trustee shall make the first distribution on an Exchange Certificate or an
Exchangeable Certificate received in an exchange transaction on the Distribution
Date in the following month to the Certificateholder of record as of the close
of business on the last day of the month of the exchange.
Section
2.04. Delivery
of Instruments.
The
Trustee shall furnish to each Holder, upon request, copies of this Agreement,
without attachments, applicable to the Certificate(s) held by such
Holder.
ARTICLE
III
CERTIFICATES;
DISTRIBUTIONS
Section
3.01. Issuance
of Certificates.
The
Classes of Certificates issued hereunder shall be issued in book-entry form
and
shall be maintained in the names of the record owners thereof as entries on
the
books of DTC. Such Certificates shall be in authorized denominations set forth
herein and in the Underlying Trust Agreement.
Section
3.02. Trust
Account.
On or
before the Issue Date, the Trustee shall either (i) open with a depository
institution one or more trust accounts in the name of the Trustee on behalf
of
the Trust Fund that shall collectively be the “Trust
Account,”
(ii) in lieu of maintaining any such account or accounts, maintain the
Trust Account by means of appropriate entries on its books and records
designating all amounts credited thereto in respect of the REMIC Certificates
and all investments of any such amounts as being held by it in its capacity
as
Trustee for the benefit of the Holders of the Certificates or
(iii) maintain the Trust Account in the form of any combination of accounts
or book entries described in clauses (i) and (ii) above. Any manner or manners
in which the Trust Account is maintained may at any time be changed without
notice to, or the approval of Holders of, the Certificates so long as funds
held
in the Trust Fund by, or for the account of, the Trustee shall at all times
be
identified. To the extent that the Trust Account is maintained by the Trustee
in
the manner provided for in clause (ii) above, all references herein to deposits
and withdrawals from the Trust Account shall be deemed to refer to credits
and
debits to the related books of the Trustee.
5
The
Trustee shall deposit in the Trust Account all distributions in respect of
the
REMIC Certificates received by it as Trustee hereunder. All such distributions
deposited from time to time in the Trust Account and all investments made with
such moneys, including all income or other gain from such investments, shall
be
held by the Trustee in the Trust Account as part of the Trust Fund as herein
provided, subject to withdrawal by the Trustee for distributions on the
Certificates.
Section
3.03. Distributions.
On each
Distribution Date, the Trustee shall withdraw from the Trust Account the Class
Distribution Amount for each Class and shall cause the Paying Agent to make
the
appropriate distributions to the Holders of each such Class. All distributions
of such Class Distribution Amount that are made with respect to a particular
Class shall be made pro
rata
among
all Certificates of such class in proportion to their respective Certificate
Balances, with no preference or priority of any kind. As among any Outstanding
Exchange Classes, distributions shall be made to such Certificates, pro
rata,
in
proportion to the Class Principal Balance of each such Class.
Section
3.04. Allocation
of Realized Losses.
On each
Distribution Date, the Realized Loss Allocation Amount for each Exchange and
Exchangeable Class shall be applied to such Class in reduction of the balances
thereof.
ARTICLE
IV
LIMITATION
OF LIABILITY
The
Trustee shall be entitled to the same rights, protections and indemnities
afforded to it under the Underlying Trust Agreement.
6
ARTICLE
V
THE
TRUSTEE
In
the
event that there shall be any matter arising under the Underlying Trust
Agreement that requires the vote of Holders of Certificates outstanding
thereunder, the Trustee shall vote such REMIC Certificates in such amounts
and
proportions as shall reflect instructions received from Holders of any
Outstanding Exchange Certificates and Outstanding Exchangeable
Certificates.
ARTICLE
VI
TERMINATION
The
obligations and responsibilities of the Trustee shall terminate as to the Trust
upon the same terms and conditions as the Underlying Trust pursuant to the
Underlying Trust Agreement.
ARTICLE
VII
SUPPLEMENTAL
AGREEMENTS
This
Agreement may be amended or supplemented from time to time by the Depositor
and
the Trustee upon the same terms and conditions as the Underlying Trust Agreement
may be amended or supplemented.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01. Certificateholders.
The
death or incapacity of any Certificateholder shall neither operate to terminate
this Agreement, nor entitle such Certificateholder’s legal representative or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding-up of the affairs of the Trust Fund, nor otherwise
affect the rights, duties and obligations of any of the parties to this
Agreement.
Except
as
provided in Article V and Article VII, no Certificateholder shall have any
right
to vote or in any manner otherwise control the operation and management of
the
Trust Fund or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as
to
constitute the Certificateholders from time to time as partners or members
of an
association; nor shall any Certificateholder be under any liability to any
third
person by reason of any action taken by the parties to this Trust Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right, by virtue of any provision of this
Trust
Agreement, to institute any suit, action or proceeding in equity or at law
upon
or under or with respect to this Agreement unless an Event of Default shall
have
occurred and be continuing in respect of this Agreement. It is understood and
intended, and is expressly covenanted by each Certificateholder with every
other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
such Certificates, or to obtain or seek to obtain priority over or preference
to
any other such Holder, or to enforce any right under this Agreement, except
in
the manner herein provided and for the equal, ratable and common benefit of
all
Certificateholders. For the protection and enforcement of the provisions of
this
Section, each and every Certificateholder and the Trustee shall be entitled
to
such relief as can be given either at law or in equity.
7
Section
8.02. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
8.03. Demands,
Notices and Communications.
All
formal demands, notices and communications by and among the Trustee, the
Certificate Registrar, the Paying Agent and the Holder of any Certificate shall
be in writing and delivered in person or by first class mail, postage prepaid,
or by facsimile to the Trustee at its address or facsimile number set forth
in
the Underlying Trust Agreement. Any notice so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have been duly given whether
or not the Person to whom such notice shall have been directed receives such
notice.
Section
8.04. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Trust
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
For
federal income tax purposes, the grantor trust created hereunder shall have
a
calendar year taxable year. The Trustee shall prepare or cause to be prepared
and shall file or cause to be filed with the Internal Revenue Service and
applicable state or local tax authorities, income tax information returns for
each taxable year with respect to the grantor trust.
8
IN
WITNESS WHEREOF, the parties hereto hereby execute this Agreement, as of the
day
and year first above written.
|
U.S.
BANK NATIONAL ASSOCIATION
|
|||
|
solely
in its capacity as Trustee
|
|||
| By: | |||
|
Name:
|
|
STRUCTURED
ASSET SECURITIES
CORPORATION
|
|||
|
in
its capacity as Depositor
|
|||
| By: | |||
|
Name:
|
9
APPENDIX
A
Available
Exchange Combinations
|
Exchange
Certificates
|
Exchangeable
Certificates
|
||||||||||||||||||
|
Combination
|
|
Maximum
Initial Principal Balance
(1)
|
|
Class
|
|
Maximum
Initial Principal Balance
(1)
|
|
Principal
Type
|
|
Interest
Type
|
|
Interest
Rate
|
|||||||
|
Combination
1
|
|
|
|
|
|
|
|||||||||||||
|
2-A3
|
$
|
199,075,000
|
AF2
|
$
|
249,506,000
|
Senior,
Pass-through
|
Floating
Rate
|
LIBOR
+ 0.950%
|
(2)
|
||||||||||
|
3-A2
|
$
|
50,431,000
|
|||||||||||||||||
|
Exchange
Certificates
|
Exchangeable
Certificates
|
||||||||||||||||||
|
Combination
|
Maximum
Initial Principal Balance
(1)
|
Class
|
Maximum
Initial Principal Balance
(1)
|
Principal
Type
|
Interest
Type
|
Interest
Rate
|
|||||||||||||
|
Combination
2
|
|
|
|
|
|
|
|||||||||||||
|
2-A4
|
$
|
89,814,000
|
AF3
|
$
|
112,566,000
|
Senior,
Pass-through
|
Floating
Rate
|
LIBOR
+ 0.950%
|
(3)
|
||||||||||
|
3-A3
|
$
|
22,752,000
|
|||||||||||||||||
(1)
Exchange Certificates and Exchangeable Certificates in any combination may
be
exchanged only in the proportion that the maximum initial principal balances
of
such certificates bear to one another as shown above.
(2)
The
Interest Rate is subject to the AF2 Net Funds Cap. After the Pool 2-3 Initial
Optional Termination Date, the stated margin shall increase to two times its
original value.
(3)
The
Interest Rate is subject to the AF3 Net Funds Cap. After the Pool 2-3 Initial
Optional Termination Date, the stated margin shall increase to two times its
original value.
A-1
EXHIBIT
I
FORM
OF EXCHANGE LETTER
___,
20__
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Corporate Trust Group, LXS 2007-16N
Re:
Xxxxxx
XS
Trust 2007-16N,
Mortgage
Pass-Through Certificates, Series 2007-16N
Ladies
and Gentlemen:
Pursuant
to the terms of the Exchange Trust Agreement dated as of August 1, 2007 (the
“Trust
Agreement”),
by
and among Structured Asset Securities Corporation, as depositor and U.S. Bank
National Association, as trustee (the “Trustee”),
we
hereby present and surrender the Certificates specified on Schedule
I
attached
hereto and transfer, assign, set over and otherwise convey to the Trustee,
all
of our right, title and interest in and to such Certificates, including all
payments of interest thereon received after [___________], 2007, in exchange
for
the related Certificates specified on Schedule
I
attached
hereto.
We
agree
that upon such exchange the portions of the Certificates designated for exchange
shall be deemed cancelled and replaced by the Certificates issued in exchange
therefor. We confirm that we have paid a fee to the Trustee in connection with
such exchange equal to $5,000.
I-1
|
Sincerely,
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Acknowledged
by:
|
|||
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
|
|||
|
By:
|
|||
|
Name:
Title:
|
I-2
SCHEDULE
I
[insert
the information as to the Exchange Class(es) and Exchangeable Class(es) to
be
exchanged required by Section 2.04 of the Trust Agreement]
I-3
