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pdfGINNIE MAE MULTICLASS SECURITIES PROGRAM
Government National Mortgage Association
[
GINNIE MAE®
MULTICLASS SECURITIES GUIDE
Part II:
Ginnie Mae Multiclass Securities Transactions:
Additional Selected Transaction Documents
April 1, 2008
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
MULTICLASS SECURITIES GUIDE
(April 1, 2008 Edition)
Page
PART I: GINNIE MAE MULTICLASS SECURITIES TRANSACTIONS:
GUIDELINES AND SELECTED TRANSACTION DOCUMENTS
A.
INTRODUCTION TO THE GINNIE MAE MULTICLASS SECURITIES PROGRAM .......................... I-1
B.
TRANSACTION GUIDELINES FOR THE GINNIE MAE MULTICLASS SECURITIES PROGRAM
C.
1.
General Overview .......................................................................................................................... I-2
2.
Transaction Information Web-Based Application - e-Access........................................................ I-3
3.
Ginnie Mae Multiclass Securities Program Conventions............................................................... I-4
4.
Ginnie Mae Multiclass Securities Transaction Participants........................................................... I-5
5.
Trust Counsel’s Responsibilities.................................................................................................... I-6
6.
Post-Closing Matters with respect to Ginnie Mae Multiclass Securities Transactions .................. I-7
GINNIE MAE REMIC AND MX TRANSACTION DOCUMENTS
1.
Form of Transaction Initiation Letter (with attached Financial Advisor Checklist for
Sponsor) for REMIC and MX Transactions .................................................................................. I-8
2.
Sponsor Agreement for REMIC and MX Transactions
a.
Form of Sponsor Agreement for REMIC and MX Transactions ..................................... I-9
b.
Standard Sponsor Provisions for REMIC and MX Transactions (including Supplemental
Statement, Sponsor Certification and Accountants’ Certification) ................................ I-10
3.
Base Offering Circular for Single Family REMIC and MX Transactions ................................... I-11
4.
Form of Offering Circular Supplement for Single Family REMIC and MX Transactions .......... I-12
5.
Form of Transfer Affidavit for REMIC Transactions .................................................................. I-13
6.
Form of Guaranty Agreement for Single Family REMIC and MX Transactions ........................ I-14
7.
Accountants’ Agreed-Upon Procedures Reports for Single Family REMIC and MX
Transactions
a.
Form of Accountants’ Agreed-Upon Procedures Report for Single Family REMIC and
MX transactions concerning the Offering Circular........................................................ I-15
(i)
b.
8.
E.
Accountants’ Agreed-Upon Procedures Report for Single Family REMIC and MX
Transactions as of Closing Date .................................................................................... I-16
Form of Closing Flow of Funds Instruction Letter for REMIC and MX Transactions................ I-17
GLOSSARY............................................................................................................................................... I-18
PART II: GINNIE MAE MULTICLASS SECURITIES TRANSACTIONS:
ADDITIONAL SELECTED TRANSACTION DOCUMENTS
A.
INTRODUCTION.......................................................................................................................................II-1
B.
CLOSING CHECKLIST AND TABLE OF CONTENTS FOR REMIC TRANSACTIONS ....................II-2
C.
TRUST AGREEMENTS FOR REMIC TRANSACTIONS
D.
E.
F.
1.
Form of Trust Agreement for REMIC Trusts (including Form of Waiver Agreement)................II-3
2.
REMIC Standard Trust Provisions................................................................................................II-4
3.
Form of MX Trust Agreement ......................................................................................................II-5
4.
MX Standard Trust Provisions......................................................................................................II-6
TRANSFER OF GINNIE MAE CERTIFICATES AND CREATION OF REMIC SECURITIES
1.
Form of Trustee’s Receipt and Safekeeping Agreement for REMIC Transactions ......................II-7
2.
Form of Issuance Statement for REMIC and MX Transactions ...................................................II-8
LEGAL OPINIONS for REMIC and MX Transactions
1.
Form of Transaction Opinion of Trust Counsel for REMIC and MX Transactions......................II-9
2.
Form of Opinion of Sponsor for REMIC and MX Transactions.................................................II-10
3.
Form of Tax Opinions of Trust Counsel for REMIC and MX Transactions
a.
Single REMIC ..............................................................................................................II-11
b.
Double REMIC: One Residual Security .......................................................................II-12
c.
Double REMIC: Two Residual Securities ....................................................................II-13
d.
MX (Grantor) Trust ......................................................................................................II-14
4.
Form of Opinion of Trustee’s Counsel for REMIC and MX Transactions.................................II-15
5.
Opinion of HUD General Counsel..............................................................................................II-16
GINNIE MAE REMIC TRUST ADMINISTRATION AND TAX REPORTING...................................II-17
(ii)
PART III: GINNIE MAE PLATINUM SECURITIES TRANSACTIONS
PART IV: GINNIE MAE MULTIFAMILY TRANSACTIONS:
MULTIFAMILY TRANSACTION DOCUMENTS*
A.
GENERAL OVERVIEW: MULTIFAMILY TRANSACTIONS ............................................................. IV-1
B.
GINNIE MAE MULTIFAMILY TRANSACTION DOCUMENTS........................................................ IV-2
1.
Form of Offering Circular Supplement for Multifamily Transactions........................................ IV-3
4.
Multifamily Base Offering Circular............................................................................................ IV-4
5.
Form of Guaranty Agreement for Multifamily Transactions ...................................................... IV-5
6.
Accountants’ Agreed-Upon Procedures Reports for Multifamily Transactions
a.
Form of Accountants’ Agreed-Upon Procedures Report concerning the Offering Circular
for Multifamily Transactions ...................................................................................................... IV-6
b.
Agreed-Upon Procedures Report as of Closing Date for Multifamily Transactions .... IV-7
* For multifamily transactions, additional transaction documents found in Parts I and II of the Multiclass
Securities Guide must be delivered, including the Transaction Initiation Letter, Sponsor Agreement, Transfer
Affidavit, Closing Flow of Funds Instruction Letter, Supplemental Statement, if applicable, REMIC Trust
Agreement, MX Trust Agreement, if applicable, Trustee’s Receipt and Safekeeping Agreement and the Issuance
Statement. In addition, opinions of counsel found in Part II of the Multiclass Securities Guide must be delivered,
including the Transaction Opinion, Sponsor Opinion, relevant Tax Opinions, Trustee’s Opinion and Opinion of
HUD General Counsel.
PART V: GINNIE MAE MULTICLASS SECURITIES TRANSACTIONS:
CALLABLE SECURITIES
A.
GENERAL OVERVIEW: CALLABLE TRANSACTIONS .....................................................................V-1
B.
GINNIE MAE CALLABLE TRANSACTION DOCUMENTS
1.
Form of Offering Circular for Callable Securities ........................................................................V-2
2.
Form of Trust Agreement for Callable Trusts...............................................................................V-3
3.
Standard Trust Provisions for Callable Trusts ..............................................................................V-4
4.
Form of Sponsor Agreement for Callable Trusts ..........................................................................V-5
5.
Standard Sponsor Provisions for Callable Trusts..........................................................................V-6
6.
Form of Ginnie Mae Callable Securities Guaranty Agreement ....................................................V-7
7.
Form of Transaction Initiation Letter for Callable Securities .......................................................V-8
(iii)
8.
Form of Accountant’s Agreed-Upon Procedures Report Concerning the Offering Circular
for Callable Securities...................................................................................................................V-9
9.
Form of Trustee’s Receipt and Safekeeping Agreement for Callable Securities ........................V-10
10.
Form of Issuance Statement for Callable Securities ...................................................................V-11
11.
Form of Transaction Opinion of Trust Counsel for Callable Securities......................................V-12
12.
Form of Tax Opinion of Trust Counsel for Callable Securities ..................................................V-13
13.
Form of Opinion of Sponsor for Callable Securities...................................................................V-14
14.
Form of Opinion of Trustee’s Counsel for Callable Securities ...................................................V-15
15.
Form of Accountants’ Agreed-Upon Procedures Report as of the Closing Date for
Callable Securities.......................................................................................................................V-16
16.
Form of Closing Flow of Funds Instruction Letter for Callable Securities.................................V-17
17.
Form of Closing Checklist and Table of Contents for Callable Securities..................................V-18
PART VI: GINNIE MAE MULTICLASS SECURITIES TRANSACTIONS:
STRIPPED MORTGAGE-BACKED SECURITIES (“SMBS”)
A.
GENERAL OVERVIEW: SMBS TRANSACTIONS ............................................................................. VI-1
B.
GINNIE MAE SMBS TRANSACTION DOCUMENTS
1.
Pricing Checklist for SMBS Transactions .................................................................................. VI-2
2.
Standard Sponsor Provisions for SMBS Transactions ................................................................ VI-3
3.
Form of Sponsor Agreement for SMBS Transactions ................................................................ VI-4
4.
Base Offering Circular for SMBS Transactions.......................................................................... VI-5
5.
Form of Offering Circular Supplement for SMBS Transactions ................................................ VI-6
6.
Form of Accountants’ Agreed-Upon Procedures Report concerning the Offering Circular
for SMBS Transactions............................................................................................................................VI-7
7.
Form of Guaranty Agreement for SMBS Transactions............................................................... VI-8
8.
Form of Issuance Statement for SMBS Transactions.................................................................. VI-9
9.
Form of Trustee’s Receipt and Safekeeping Agreement for SMBS Transactions .................... VI-10
10.
Form of Closing Flow of Funds Letter for SMBS Transactions ............................................... VI-11
11.
Form of Trust Agreement for SMBS Transactions ................................................................... VI-12
12.
Standard Trust Provisions for Ginnie Mae SMBS Trusts ......................................................... VI-13
(iv)
13.
Form of Form of Transaction Opinion of Trust Counsel for SMBS Transactions.................... VI-14
14.
Form of Opinion of Sponsor for SMBS Transactions............................................................... VI-15
15.
Form of Tax Opinion of Trust Counsel for SMBS Transactions .............................................. VI-16
16.
Form of Opinion of Trustee’s Counsel for SMBS Transactions ............................................... VI-17
17.
Form of Accountants’ Agreed-Upon Procedures Report as of Closing Date for SMBS
Transactions .............................................................................................................................. VI-18
(v)
GINNIE MAE MULTICLASS SECURITIES GUIDE
Introduction to Part II
Part I of this Ginnie Mae Multiclass Securities Guide contains under Heading C., entitled
GINNIE MAE REMIC AND MX TRANSACTION DOCUMENTS, a selection of the forms of
documents specifically for use in Ginnie Mae REMIC and MX transactions. The forms for the
remainder of the documents required to complete single family Ginnie Mae REMIC and MX
transactions are included in this Part II of the Guide. For additional forms of documents specific
to Ginnie Mae Multifamily REMIC and MX transactions, see Part IV of the Guide.
II-1-1
CLOSING CHECKLIST
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED [MULTIFAMILY] REMIC PASS-THROUGH SECURITIES [AND MX
SECURITIES]
GINNIE MAE REMIC TRUST 20_-_
[AND GINNIE MAE MX TRUST 20_-_]
$___________ Aggregate Principal Amount
_______, 20_
______________________
PARTIES TO THE TRANSACTION
“Ginnie Mae”
Government National Mortgage Association
“Financial Advisor” or “FA”
ERNST & YOUNG LLP
“Legal Advisor” or “LA”
_________________________
“Sponsor” or “S”
_________________________
“Co-Sponsor”
_________________________
“Trust Counsel” or TC”
_________________________
“Co-Trust Counsel”
_________________________
“Accountant” or “A”
_________________________
“Trustee” or “T”
_________________________
“Trustee’s Counsel” or “TeeC”
_________________________
“Information Agent”
The Bank of New York
“Book-Entry Depository”
The Federal Reserve Bank of New York
“Trust Asset Depository” (if any)
_________________________
“Printer”
_________________________
II-2-1
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED [MULTIFAMILY] REMIC PASS-THROUGH SECURITIES [AND MX SECURITIES]
GINNIE MAE REMIC TRUST 20_-_
[AND GINNIE MAE MX TRUST 20_-_]
$___________ Aggregate Principal Amount
_______, 20_
__________________________________________________
TABLE OF CONTENTS
(Incorporating by Reference the April 1, 2008 Edition of the Guide
[, as amended through_____________, 20 ])
Document
I.
II.
III.
Responsible
Party
Signatures
Tab
A. Transaction Initiation Letter.....................................................................
GNMA
GNMA, S
1
B. Sponsor Agreement ..................................................................................
TC
GNMA, S
2
C. Standard Sponsor Provisions....................................................................
LA
N/A
*
A. Offering Circular Supplement..................................................................
TC/LA
N/A
3
B. Base Offering Circular ............................................................................
LA
N/A
*
C. Accountants’ Agreed-Upon Procedures Report
Concerning the Offering Circular ............................................................
A
A
4
A. Trustee’s Receipt and Safekeeping Agreement
(with Exhibit provided by Trustee) ..........................................................
TC
T
5
B. [REMIC] Trust Agreement, dated as of Closing Date, between
The Trustee and the Sponsor....................................................................
TC
S, T
6
C. REMIC Standard Trust Provisions...........................................................
LA
N/A
*
[D. MX Trust Agreement, dated as of Closing Date, between the
Trustee and the Sponsor...........................................................................
TC
S, T
7]
[E. MX Standard Trust Provisions.................................................................
LA
N/A
*]
[D.] [F.] GNMA Guaranty Agreement .........................................................
LA
GNMA
[7] [8]
[E.] [G.] OID Prices Letter ...........................................................................
S
S
[8] [9]
[F.] [H.] Transfer Affidavit(s) relating to the Residual Securities ................
TC
Residual
Holder(s)
[9] [10]
TRANSACTION INITIATION AND SPONSOR AGREEMENT
OFFERING DOCUMENTS
ESTABLISHMENT OF THE TRUST AND ISSUANCE OF THE
SECURITIES
2
II-2-2
Document
IV.
Responsible
Party
Signatures
Tab
[H.] [J.] Issuance Statement ..........................................................................
TC
S
[10] [11]
[I.] [K.] Sponsor Certification and Accountants’ Certification.....................
S
S, A
[11] [12]
1. Transaction Opinion................................................................................
TC
TC
[11] [12]
2. [REMIC] Tax Opinion............................................................................
TC
TC
[12] [13]
[3. MX (Grantor Trust) Tax Opinion ...........................................................
TC
TC
[14]]
B. Opinion of Sponsor ..................................................................................
S
S
[12] [15]
C. Opinion of Trustee’s Counsel...................................................................
TeeC
TeeC
[15] [17]
D. Opinion of HUD General Counsel...........................................................
LA
[Already
Signed]
[16] [18]
E. Accountants’ Agreed-Upon Procedures Report
as of the Closing Date ..............................................................................
A
A
[17] [19]
[F. Economic Representation Letter .............................................................
S
S
[18] [20]]
A. Closing Flow of Funds Instruction Letter ................................................
TC
S
[18] [20]
[21]
B. Glossary ...................................................................................................
LA
N/A
*
C. Working Group List .................................................................................
TC
N/A
[19] [21]
[22]
OPINIONS OF COUNSEL AND ACCOUNTANTS’ AGREED-UPON
PROCEDURES REPORT
A. Opinions of Trust Counsel
V.
MISCELLANEOUS
________________________________________________
*Available in the Ginnie Mae Multiclass Securities Guide (April 1, 2008 Edition, as amended).
3
II-2-3
FORM OF TRUST AGREEMENT FOR REMIC TRANSACTIONS
II-3-0
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED [MULTIFAMILY] REMIC PASS-THROUGH SECURITIES
GINNIE MAE REMIC TRUST 20__-_
TRUST AGREEMENT
between
______________________________,
as Sponsor,
and
_____________________________,
as Trustee
DATED AS OF
____________ __, 20__
II-3-1
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of ______________ __, 20__, is entered into by
and between _____________________________________ , a ______________________ (the
“Sponsor”), and _____________________________, a _______________, as trustee (the
“Trustee”).
Section 1.
Standard Trust Provisions. The Standard Trust Provisions for
Guaranteed REMIC Pass-Through Securities, as set forth in the Ginnie Mae Multiclass
Securities Guide, April 1, 2008 Edition (the “Standard Trust Provisions”,) [, as amended through
__________, 20__], are herein incorporated by reference and shall be considered a part of this
Trust Agreement as if set forth herein in full.
Section 2.
Defined Terms. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Glossary contained in the Ginnie Mae Multiclass
Securities Guide, April 1, 2008 Edition, [as amended through ___________ __, 20_,] as
supplemented by both the Terms Sheet in the 20__-_ Offering Circular Supplement attached
hereto as Schedule C and the definitions set forth below.
[“Accrual Amount”: The Accrual Amount, on any given Distribution Date, for Class
[Z].]
[“Accrual Class[es]”:]
[“Additional Interest Amount”: As to each CC Class, and the Final Distribution Date
therefor, if by reason of an Underlying Redemption, interest at the related Interest Rate from the
first day of the month of such Distribution Date to such Distribution Date, calculated on a
reduced Class Principal Balance based on “Class Factors” that would have been calculated for
such final Distribution Date had no Underlying Redemption occurred.]
[“Book-Entry Securities”: The Securities identified as REMIC Classes in the Issuance
Statement attached hereto as Exhibit 1.]
[“CC Class”: Each Class of Securities [in Security Group 4].]
[“Callable Trust REMIC”: The assets described in Section 1.03 of the Standard Trust
Provisions, as modified by Section 4 hereof, for which a REMIC election will be made.]
“Closing Date”: ____________ __, 20__.
[“Component Class[es]”: Class[es] _____ and _____.]
[“Contracted Security Purchaser”: With respect to any Ginnie Mae Construction Loan
Certificate, the entity bound under contract with the related Ginnie Mae Issuer to purchase all of
the Ginnie Mae Construction Loan Certificates related to the particular multifamily project.]
“Corporate Trust Office”: ____________________________.
2
II-3-2
“Co-Trust Counsel”: _________________________________.
[“Deposited Ginnie Mae Construction Loan Certificate”: Each Ginnie Mae Construction
Loan Certificate delivered by the Sponsor to the Trust on the Closing Date.]
“Distribution Date”: [[For the Group 1 [and Group 4] Securities, the] [The] 16th day of
each month or, if the 16th day is not a Business Day, the first Business Day thereafter,
commencing in ______________ 20__.] [[For the Group 2 [and Group 4] Securities and the
Class R Securities, the] [The] 20th day of each month or, if the 20th day is not a Business Day,
the first Business Day thereafter, commencing in ______________ 20__.] [[For the Group 3
Securities, the] [The] [__ day of each month, or, if the ___ day is not a Business Day, the first
Business Day following such ___ date, commencing in __________ 20__.
“Final Data Statement”: The statement attached to the Accountants’ Agreed-Upon
Procedures Report as of the Closing Date as Schedule A, a copy of which is attached
hereto. [The Final Data Statement separately identifies the Trust Assets in each Trust Asset
Group.]
[“Group 1 Principal Distribution Amount”: The portion of the Principal Distribution
Amount attributable to the Group 1 Trust Assets.
“Group 2 Principal Distribution Amount”: The portion of the Principal Distribution
Amount attributable to the Group 2 Trust Assets.
“Group 3 Principal Distribution Amount”: The portion of the Principal Distribution
Amount attributable to the Group 3 Trust Assets.
“Group 4 Principal Distribution Amount”: The portion of the Principal Distribution
Amount attributable to the Group 4 Trust Assets.]
[“Group 1 Trust Assets”: The Trust Assets underlying Security Group 1.
“Group 2 Trust Assets”: The Trust Assets underlying Security Group 2.
“Group 3 Trust Assets”: The Trust Assets underlying Security Group 3.
“Group 4 Trust Assets”: The Trust Assets underlying Security Group 4.
“Group T Trust Assets”: The Trust Assets underlying Group T, as identified on Schedule
A.]
“Increased Minimum Denomination Class[es]”: As set forth under “Increased Minimum
Denomination Class[es]” in Schedule C.
[“Issuing REMIC”: The assets described as such in Section 1.03 of the Standard Trust
Provisions, for which a REMIC election will be made.]
3
II-3-3
[“Non-Callable Trust REMIC”: The assets described in Section 1.03 of the Standard
Trust Provisions, as modified by Section 4 hereof, for which a REMIC election will be made.]
“Offering Circular Supplement”: The Offering Circular Supplement dated _______ __,
20__, relating to Ginnie Mae REMIC Trust 20__-_.
[“Pooling REMIC”: The assets described as such in Section 1.03 of the Standard Trust
Provisions, for which a REMIC election will be made.]
[“Pooling REMIC Subaccount”: Each of the following subaccounts, established for
purposes of the REMIC Provisions by the Trustee, which have the following interest rates and
initial principal balances and which correspond to the indicated Classes of Securities:
Pooling REMIC
Subaccount1
Initial [Notional]
Principal Balance
Interest Rate
Corresponding
Classes
[and Components]
“Registrar”: The Trustee.
“Regular Securities”: Each of the Securities other than the Class [R] [RR] [RI and
Class RP] Securities.
1
NOTE TO TRUST COUNSEL: No Pooling REMIC Subaccount is created for the Pooling REMIC
Residual Interest.
To the extent possible, a separate Pooling REMIC Subaccount should be created for each Class of Regular
Securities. In that case, the initial principal balance and interest rate of the Pooling REMIC Subaccount
will equal the Original Class Principal Balance and Interest Rate of the corresponding Class.
Do not create, however, a separate Subaccount for a Class that receives a strip from certain other Classes
(as opposed to a strip from the entire pool of collateral). Instead, list the stripped Class as a second
“corresponding Class” to the Subaccount for each of those other Classes. For example, assume that Class
J, a Notional Class, receives interest otherwise allocable to Classes A and B. You will need to create a
Pooling REMIC Subaccount to correspond to Classes A and J, and a second Pooling REMIC Subaccount to
correspond to Classes B and J.
There is no need to lump together an Accrual Class and the related Accretion Directed Classes into one
Pooling REMIC Subaccount. Create a separate Pooling REMIC Subaccount for each Accrual Class and
each Accretion Directed Class. The Subaccount corresponding to the Accrual Class will accrue interest
without receiving current interest distributions, as provided in section 7(b).
There may be structures that require you to deviate from these rules. If so, please consult the Legal
Advisor to discuss the matter.
4
II-3-4
“Residual Securities”: The Class [R] [RR] [RI and Class RP] Securities issued by the
Trust. [The Class RI Securities represent the Issuing REMIC Residual Interest, and the Class RP
Securities represent the Pooling REMIC Residual Interest.] [The Class RR Securities, which
represent the beneficial ownership in the [Non-Callable Trust REMIC Residual Interest and the
beneficial ownership in the Callable Trust REMIC Residual Interest,] [Pooling REMIC Residual
Interest and the beneficial ownership in the Issuing REMIC Residual Interest,] may be separated
into their component parts by the registered Holders thereof as described in Section 2.05 of the
Standard Trust Provisions.]
[“Security Group 1”: Classes , , and .
“Security Group 2”: Classes , , and .
“Security Group 3”: Classes , , and .]
“Security Group 4”: Classes , , and .]
“Sponsor”: The entity identified as such on the cover page hereof.
“Sponsor Agreement”: The Sponsor Agreement relating to Ginnie Mae REMIC Trust
20__ - __, by and between the Sponsor and Ginnie Mae, dated ______________ __, 20__.
“Tax Administrator”: The Trustee.
“Trust Assets”: [Collectively,] [the certificates listed in the Final Data Statement] [the
Ginnie Mae Multifamily Certificates listed on Exhibit A to the Offering Circular Supplement, a
copy of which is attached hereto as Schedule A [and each Ginnie Mae Project Loan Certificate
issued upon the conversion of any Deposited Ginnie Mae Construction Loan Certificate].]
“Trust Counsel”: ______________________________.
“Trustee”: The entity identified as such on the cover page hereof, or its successor in
interest, or any successor trustee appointed as herein provided.
“Trustee Fee”: ______________________________ [of all principal and interest
distributions received on the [Group [ ]] Trust Assets, which is retained by the Trustee.
“Trust Fund”: The corpus of the trust established hereby, consisting of: (a) the Trust
Assets and all distributions thereon on or after the first day of the month following the month in
which the Closing Date occurs, (b) all of the Sponsor’s right, title and interest in, but none of the
Sponsor’s obligations under, the Sponsor Agreement, (c) the Trust Accounts, and (d) any
proceeds of the foregoing.
“Trust REMIC”: [Each of the Pooling REMIC and the Issuing REMIC.] [NOTE TO
TRUST COUNSEL: In the event of a Double REMIC Series issued in conjunction with a
Single REMIC Series, or in the event of a Double REMIC Series issued in respect of more than
one Issuing REMIC, each Trust REMIC should be separately defined with reference, to the
5
II-3-5
extent possible, to the Group of Trust Assets to which it relates (e.g., the Group 1 Pooling
REMIC, the Group 1 Issuing REMIC, the Group 2 REMIC, etc.)]. [The assets described in
Section 1.03 of the Standard Trust Provisions, for which a REMIC election will be made.]
[“Underlying Callable Securities”: Ginnie Mae Guaranteed Pass-Through Securities,
Ginnie Mae Callable Trust ____/20__-C , Class [A1].]
[“Underlying Redemption”: Any redemption of the Underlying Callable Securities in
accordance with their terms.]
[“WACR”: Weighted Average Certificate Rate of the Trust Assets.]
[“Waiver Agreement”: The agreement executed by the Sponsor or the Contracted
Security Purchaser, as applicable, dated as of ___________, 20__ or ________, 20__, that is
substantially in the form attached hereto as Exhibit 2.]
[“Z[ ] Accrual Amount”: The Accrual Amount, on any given Distribution Date, for Class
Z[ ]. NOTE TO TRUST COUNSEL: Include similar definitions for each Class Accrual
Amount in a transaction.]
Section 3.
Conveyance to the Trustee. In consideration of all of the Securities
issued hereunder, the receipt of which is hereby acknowledged by the Sponsor, the Sponsor does
hereby sell, assign, transfer and convey to the Trustee, in trust for the benefit of the Holders, all
of the Sponsor’s right, title and interest in and to the Trust Fund.
Section 4.
REMIC Election. This Series shall be a [Single][Double] REMIC Series
[with [two] side-by-side [Trust] [Pooling] REMICs]. The Trustee shall designate the [Group 1,
Group 2 and Group 3 Trust Assets as assets of the Non-Callable Trust REMIC, and shall
designate the Group 4 Trust Assets as assets of the Callable Trust REMIC. The Trustee shall
designate the Residual Interest of the Non-Callable Trust REMIC as the sole class of residual
interest in the Non-Callable Trust REMIC and shall designate the Residual Interest in the
Callable Trust REMIC as the sole class of residual interest in the Callable Trust REMIC.] [The
Trustee shall designate the Pooling REMIC Residual Interest as the sole class of residual interest
in the Pooling REMIC and shall designate the Residual Interest in the Issuing REMIC as the sole
class of residual interest in the Issuing REMIC.]
Section 5.
Acceptance by the Trustee. By its execution of this Trust Agreement,
the Trustee acknowledges receipt of the Trust Fund and declares that it holds and will hold the
Trust Fund in trust for the exclusive use and benefit of all present and future Holders pursuant to
the terms of this Trust Agreement. The Trustee represents and warrants that (a) the Trustee
holds the Trust Assets through the facilities of the applicable Depository, [each of] which has
credited the Trust Assets to the related Depository Account, (b) the information relating to the
Trust Assets set forth on [the Final Data Statement] [Schedule A] conforms to information
provided to the Trustee by the applicable Depository, (c) the Trustee acquired the Trust Assets
on behalf of the Trust from the Sponsor in good faith, for value, and without notice or knowledge
of any adverse claim, lien, charge, encumbrance or security interest (including, without
6
II-3-6
limitation, federal tax liens or liens arising under ERISA), (d) except as permitted in this Trust
Agreement, the Trustee has not and will not, in any capacity, assert any claim or interest in the
Trust Assets, and (e) the Trustee has not encumbered or transferred its right, title or interest in
the Trust Assets[.][, (f) with respect to each Deposited Ginnie Mae Construction Loan
Certificate, the right of the Trustee and each future holder of any such Ginnie Mae Construction
Loan Certificate to withhold its consent to one or more extensions of the applicable Maturity
Date for a period that, in the aggregate, may not exceed the term of the underlying Mortgage
Loan insured by FHA, has been irrevocably waived by the Sponsor or the Contracted Security
Purchaser pursuant to the applicable Waiver Agreement and (g) with respect to each Deposited
Ginnie Mae Construction Loan Certificate, the Trustee will not consent to any extension of the
Maturity Date for a period in excess of the term of the underlying Mortgage Loan insured by
FHA.]
Section 6.
The Securities.
(a)
The Securities will be designated generally as Ginnie Mae REMIC Trust 20__
_. The aggregate principal amount of Securities that may be executed and delivered under this
Trust Agreement is limited to $__________________, except for Securities executed and
delivered upon registration of, or transfer of, or in exchange for, or in lieu of, other
Securities. The (i) designation, (ii) Original Class Principal Balance [(or original Class Notional
Balance)], (iii) Interest Rate, (iv) Principal Type, (v) Interest Type, (vi) Final Distribution Date
and (vii) CUSIP Number for each Class are set forth in the table on the front cover of the
Offering Circular Supplement, attached hereto as Schedule B [, or under “Interest Rates” in
Schedule C]. [The Component Classes shall consist of the Components having the designations
and characteristics set forth under “Component Classes” in Schedule C.] [The Securities
comprise [ ] Security Groups; each Security Group will relate solely to the Trust Asset Group
with the corresponding numerical designation.]
(b)
[The Class [R] [RR] [ ] Securities] [initially] shall be Certificated Securities and
shall be substantially in the form of Exhibit [R][RR] [ ]attached hereto. [NOTE TO TRUST
COUNSEL: Use the word “initially” only when referring to a Certificated Security that is not a
residual class.]
[(c)
The Increased Minimum Denomination Classes shall be offered in the minimum
denominations set forth under “Description of the Securities — Form of Securities” in the
Offering Circular Supplement.]
[(d) Each of Classes [ ], [ ] and [ ] shall be issued in uncertificated form directly to
the Trustee for Ginnie Mae MX Trust 20__-_ on behalf of the Sponsor. The Trustee hereby
acknowledges delivery of such Securities.] [NOTE TO TRUST COUNSEL: REMIC Classes
that correspond to MX Classes will be issued in uncertificated form to the MX Trust.]
(e)
The Book-Entry Securities shall be issued in book-entry form in the
denominations specified in the Issuance Statement attached hereto as Exhibit 1.
7
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Section 7.
Distributions to Holders. [NOTE TO TRUST COUNSEL: Include the
references to Security Groups herein if you have more than one Security Group with different
Distribution Dates.] On each Distribution Date [with respect to a Security Group], the Trustee
(or the Paying Agent on behalf of the Trustee) shall withdraw the Distribution Amount[s] [and
Prepayment Penalties, if any,] [for that Security Group] from the Trust Accounts in accordance
with Section 3.04 of the Standard Trust Provisions and shall distribute the [such] [that]
Distribution Amount[s] [and Prepayment Penalties, if any,] in the following manner:
[THE FOLLOWING IS FOR ILLUSTRATIVE PURPOSES ONLY. TRUST COUNSEL
WILL NEED TO MODIFY THIS LANGUAGE, PERHAPS SIGNIFICANTLY,
DEPENDING ON THE SECURITIES STRUCTURE.]
(a)
The Interest Distribution Amount[s] shall be allocated to the payment of interest
currently due on each Pooling REMIC Subaccount [and the Class RP Security] at the Interest
Rate [in effect for the related Accrual Period determined as] set forth in the definition of
“Pooling REMIC Subaccount” in Section 2 hereof [or, in the case of the Class RP Security, set
forth in Schedule B].
(b)
The Principal Distribution Amount[s] (net of the portion thereof payable as part of
the Trustee Fee) [and the Accrual Amount [Amounts]] shall be allocated to the payment of
principal on the Pooling REMIC Subaccounts [and on the Class RP Security as set forth under
“Allocation of Principal” in [the Terms Sheet in the Offering Circular Supplement, attached
hereto as] Schedule C] in a manner such that the principal amount of each Pooling REMIC
Subaccount will at all times equal the Class Principal Balance or the aggregate Class Principal
Balances of the corresponding Securities (other than Securities of a Notional Class) identified in
the definition of “Pooling REMIC Subaccount” in Section 2 hereof. [In a case in which a Class
of Securities (other than a Notional Class) corresponds to more than one Pooling REMIC
Subaccount, the Class Principal Balance of that Class shall be allocated among the corresponding
Pooling REMIC Subaccounts in proportion to their initial principal balances.] [To the extent of
the Accrual Amount for the corresponding Accrual Class,] [I/i]nterest will accrue on, and
distributions will be made to, the Pooling REMIC Subaccount[s] that correspond[s] to the [Class
[Z]] [Class [ZA] and Class [ZB]] Securities in the same manner that interest accrues on, and
distributions are made to, the [Class [Z]] [Class [ZA] and Class [ZB]] Securities[.] [, and]
[interest will accrue on, and distributions will be made to, the Pooling REMIC Subaccount[s]
that correspond[s] to the Class [ ] Securities in the same manner that interest accrues on, and
distributions are made to, the related Class [ ] Securities.] [NOTE TO TRUST COUNSEL:
Use as necessary to the extent that there is a possibility for deferral of interest with respect to an
HMBS-Backed Class.]
[(c)] Any Prepayment Penalties [with respect to the Group [ ] Trust Assets] received
and identified by the Trustee shall be allocated to [each] [the] Pooling REMIC Subaccount[[s] [
] through [ ]] in proportion to the Principal Distribution Amount (net of any portions thereof
payable as part of the Trustee Fee) allocated thereto. [Any Prepayment Penalties [with respect to
the Group [ ] Trust Assets] received and identified by the Trustee shall be allocated to [each]
[the] Pooling REMIC Subaccount[[s] [ ] through [ ]] in proportion to the Principal Distribution
Amount (net of any portions thereof payable as part of the Trustee Fee) allocated thereto.]
8
II-3-8
[(c)][(d)]
Subaccounts:
From the aggregate amounts on deposit in the Pooling REMIC
(i)
[The [Fixed Rate] Class[es] [other than the [Partial] Accrual Class[es]
[Class [ ] Security]2] shall receive interest for the related Accrual Period at the [respective]
Interest Rate[s] set forth in Schedule B.]
(ii)
[The [Floating Rate] [and] [Inverse Floating Rate] Class[es] shall receive
interest for the related Accrual Period at the [respective] Interest Rate[s], in effect for such
Accrual Period, determined as set forth under “Interest Rates” in Schedule C.]
(iii) [The Variable Rate Classes shall receive interest for the related Accrual
Period at the respective Interest Rates, in effect for such Accrual Period, determined as set forth
in Schedule C.]
(iv)
[The WAC Class[es] [(other than the Accrual Class [Class [ ] Security]2)]
shall receive interest for the related Accrual Period at the [respective] Interest Rate[s] determined
as set forth under “Interest Rates” in Schedule [ ].]
(v)
[The Notional Class[es] shall receive interest for the related Accrual
Period at the [respective] Interest Rate[s] [(a)][set forth in Schedule B] [or] [(b)] [in effect for
such Accrual Period determined as set forth under “Interest Rates” in Schedule C] [, as
applicable,] on [its] [their] Class Notional Balance[s], which shall be reduced with reductions in
the Class Principal Balance[s] of certain other Classes as set forth under “Notional Classes” in
Schedule C[, notwithstanding any references therein to the words “Approximate” or
“Approximately”]. The [___% PSA] [Jump] Balances are attached hereto as Schedule [ ].]
(v)
The allocation of principal distributions on the Classes of Securities on
each Distribution Date shall be as set forth under “Allocation of Principal” in Schedule C. [The
[Scheduled Principal Balances] [or][Aggregate Scheduled Principal Balances] for the [PAC,
[PAC I,] [PAC II,]] [Scheduled] [and] [TAC] Class [or Component] [or Segment] are attached
hereto as Schedule D.]
(vi)
Prepayment Penalties shall be allocated from Pooling REMIC
Subaccount[s] [ ] and [ ] as follows: 100% to Class [IO].
(d)
[Class [Z] is an] [Classes [ZA] and [ZB] are] [Partial] Accrual Class[es]. Interest
will accrue on, and distributions will be made to [(or added to the principal amount of)], such
Class[es] as set forth under “Accrual Class[es]” in Schedule C.
[(e)
Class[es] [ ] [is an] are HMBS-Backed Class[es]. Interest will accrue on, and
distributions will be made to [(or added to the principal amount of)], such Class[es] as set forth
2
NOTE TO TRUST COUNSEL: Insert as necessary for HMBS-Backed Class.
9
II-3-9
under “Accrual Class[es]” in Schedule [ ].] [NOTE TO TRUST COUNSEL: Use as necessary
to the extent that there is the possibility of deferral on an HMBS-Backed Class.]
[(f)
On the Distribution Date coinciding with an Underlying Redemption of
Underlying Callable Securities, the Additional Interest Amount shall be distributed to the related
CC Class Securities, in addition to amounts otherwise distributable thereto.]
(g)
Any amounts described in Sections 3.04(i) and [7.05(a)] [7.05(b)] of the Standard
Trust Provisions shall be allocated to the Residual Securities in accordance with those Sections.
[(h)
In the event that the Class RR Security is separated into a Class [RP] [R1]
Security and a Class [RI] [R2] Security in accordance with Section 2.05 of the Standard Trust
Provisions, the Class [RP] [R1] Security will receive all distributions with respect to the [Pooling
REMIC] [Non-Callable Trust REMIC] Residual Interest, and the Class RI [R2] Security will
receive all distributions with respect to the [Issuing REMIC] [Callable Trust REMIC] Residual
Interest.]
(i)
Notwithstanding the foregoing, distributions on any Certificated Securities will be
made on the Business Day following the Distribution Date.
Section 8.
Modification of Standard Trust Provisions. The following
modifications of the Standard Trust Provisions shall apply to the Securities:
[NONE]
[NOTE TO TRUST COUNSEL: Insert modifications, if necessary]
[NOTE TO TRUST COUNSEL: Additional modifications may be needed for the
definitions of Accrual Class, Partial Accrual Class, Interest Distribution Amount, Principal
Distribution Amount and any other definitions related to payments to Holders to the extent that
any Trust Asset Group consists primarily of HECM MBS or Underlying Certificates backed
ultimately by HECM MBS.]
Section 9.
Schedules and Exhibits. Each of the Schedules and Exhibits attached
hereto or referenced herein is incorporated herein by reference.
[Section 10. Double REMIC Series Administration. The [Group [ ]] Pooling
REMIC will pay all Trust REMIC expenses [of the related Trust REMICs] and will make
distributions on the Regular Interests of [the] [such] Pooling REMIC to the [related] Issuing
REMIC. The [Group [ ]] Issuing REMIC will make all distributions on the [related] Regular
Securities.]
10
II-3-10
IN WITNESS WHEREOF, the Sponsor and the Trustee have caused this Trust
Agreement to be duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
[SPONSOR]
By: _____________________________
Its: ______________________________
[TRUSTEE], as Trustee
By: _____________________________
Its: _____________________________
11
II-3-11
STATE OF [NEW YORK]
COUNTY OF [NEW YORK]
)
) ss.:
)
The foregoing instrument was acknowledged before me in the County of [New York,
New York], this ____ day of ______________, 20__, by _______________________,
_____________ of ______________________, a __________________ [corporation], on behalf
of the [corporation].
_______________________________
Notary Public
My Commission expires: _________________
12
II-3-12
STATE OF [NEW YORK]
COUNTY OF [NEW YORK]
)
) ss.:
)
The foregoing instrument was acknowledged before me in the County of [New York,
New York], this ____ day of ________________, 20__, by ________________, ____________
of _______________________, a ___________________ banking corporation, on behalf of the
corporation.
_______________________________
Notary Public
My Commission expires: _________________
13
II-3-13
LIST OF SCHEDULES AND EXHIBITS
Schedule A:
Schedule B:
Schedule C:
[Schedule D:
[Schedule E:
[Exhibit 1:
[Exhibit 2:
Exhibit [R] [RR] [RI]:**
[Exhibit RP:
[Copy of the Final Data Statement] [NOTE TO TRUST
COUNSEL: This is a photocopy of Schedule A to the
Accountants’ Closing Letter.] [Exhibit A to Offering Circular
Supplement]
Front Cover of Offering Circular Supplement
Terms Sheet of Offering Circular Supplement
Final Scheduled Principal Balances]
Jump Balances]
Issuance Statement]
Form of Waiver Agreement]
Form of Class [R] [RR] [RI] Security
Form of Class RP Security]
*[NOTE TO TRUST COUNSEL: The exhibit designation should be the same as the Class
designation (e.g., “Exhibit SA” for “Form of Class SA Security”).]
**[NOTE TO TRUST COUNSEL: In a transaction in which Class RR Securities are issued at
closing, exhibits for Class RI and Class RP Securities do not need to be attached as exhibits
hereto.]
14
II-3-14
Exhibit 1
Issuance Statement
See Section D. 2. of this Part II of the Guide for the Form of Issuance Statement for REMIC
Transactions.
15
II-3-15
Exhibit 2
FORM OF WAIVER AGREEMENT
FOR MULTIFAMILY TRANSACTIONS WITH TRUST ASSETS
THAT INCLUDE CONSTRUCTION LOAN CERTIFICATES
[Sponsor Letterhead]
[
], 20[ ]
To the Ginnie Mae Issuer identified on
Schedule I hereto (the “Ginnie Mae CLC Issuer”)
With respect to Ginnie Mae Construction Loan Certificates issued on or prior to December 31,
2002, Chapter 32 of the Ginnie Mae Mortgage-Backed Securities Guide 5500.3, as amended (the
“MBS Guide”) requires that the record holders of all related Ginnie Mae Construction Loan
Certificates consent to any request of the related Ginnie Mae Issuer to extend the applicable
Maturity Date. With respect to Ginnie Mae Construction Loan Certificates issued after
December 31, 2002, the MBS Guide requires that the contracted security purchaser, the entity
bound under contract with the related Ginnie Mae Issuer to purchase all of the Ginnie Mae
Construction Loan Certificates related to a specific property, consent to any request of the related
Ginnie Mae Issuer to extend the applicable Maturity Date. These consent requirements restrict
the use of Ginnie Mae Construction Loan Certificates as Trust Assets in Government National
Mortgage Association (“Ginnie Mae”) multiclass securities transactions. For the purpose of
ensuring the efficient commencement and continued operation of the Ginnie Mae Multiclass
Securities Program as it relates to Ginnie Mae Construction Loan Certificates and in
consideration of Ginnie Mae’s guaranty of the Ginnie Mae REMIC Securities to be issued
pursuant to the trust agreement relating to the Ginnie Mae REMIC Trust [ ]-[ ] dated as of [ ],
20[ ] (such trust, the “Trust” and such trust agreement, the “Trust Agreement”), [ ] (“[ ]”),
in its capacity as record holder or contracted security purchaser, as applicable, of (x) the Ginnie
Mae Construction Loan Certificates identified on Schedule I hereto and each related Ginnie Mae
Construction Loan Certificate, if any, outstanding as of the date hereof (the "Outstanding CLCs")
and (y) any Ginnie Mae Construction Loan Certificate related to any Outstanding CLC that may
be issued in the future (the “Future CLCs,” together with the Outstanding CLCs, the “Ginnie
Mae CLCs”), waives its right and the right of all future holders of each Ginnie Mae CLC,
including [ ] as Trustee, (the “REMIC Trustee”) and the assignee of [ ] right in certain of
the Outstanding CLCs, to withhold consent to any request that may be made by the Ginnie Mae
CLC Issuer, in its capacity as the issuer of the related Ginnie Mae CLCs, to extend the applicable
Maturity Date of any such Ginnie Mae CLCs (provided that, the length of any such extension,
together with all previously granted extensions in respect of the applicable Ginnie Mae CLCs,
may not exceed the term of the underlying Mortgage Loan insured by the Federal Housing
Administration). The waiver and the agreements contained herein shall bind and inure to the
benefit of [ ] and the REMIC Trustee, as an assignee of [ ], and their successors and assigns,
and shall inure to the benefit of Ginnie Mae and the Trust.
II-3-16
[ ] hereby agrees to notify the REMIC Trustee of the foregoing waiver and to take any further
action as may be reasonably requested by the Ginnie Mae CLC Issuer or Ginnie Mae to give
effect to the foregoing waiver.
Nothing contained herein shall be deemed or construed to constrain or otherwise limit any rights
Ginnie Mae may have to deny a request for the extension of the Maturity Date of any Ginnie
Mae CLC for any reason (other than the failure of the Ginnie Mae CLC Issuer to obtain the
consent of the contracted security purchaser or the record holders, as the case may be, of the
applicable Ginnie Mae CLCs for any extension within the scope of this waiver).
Nothing contained herein shall be deemed or construed to relieve the Ginnie Mae CLC Issuer of
its obligation to pay [
] any extension fee that may become payable under the Trade
Confirmation between the Ginnie Mae CLC Issuer and [
] with respect to the related
Outstanding CLCs (and any Future CLCs) set forth on Schedule I.
In the event the Ginnie Mae CLC Issuer requests an extension of the Maturity Date of any
related Ginnie Mae CLCs, the Ginnie Mae CLC Issuer may submit this waiver to Ginnie Mae in
lieu of any document evidencing the consent of the contracted security purchaser or the record
holders, as the case may be, of the Ginnie Mae CLCs to any such extension request.
This agreement shall be governed by and construed in accordance with the laws of the United
States of America. Insofar as there may be no applicable law of the United States, the internal
laws of the State of New York (without giving regard to conflict of laws principles) shall be
deemed reflective of the laws of the United States of America, insofar as to do so would not
frustrate the purposes of any provision of the Trust Agreement or the transactions governed
thereby.
Capitalized terms used herein and not otherwise defined shall have the meaning assigned thereto
in Appendix II to the Ginnie Mae Multifamily Base Offering Circular dated as of [ ].
Please do not hesitate to contact [
matter.
] at [
] at [ ] if you have any questions regarding this
Respectfully yours,
[
]
By:
17
II-3-17
Its:
Acknowledged:
[Ginnie Mae CLC Issuer]
By:
Its:
18
II-3-18
cc:
Government National Mortgage Association
Potomac Center
550 12th Street, S.W.
3rd Floor
Washington, D.C. 20024
[ ], as Trustee
[Trustee Address]
Attention: [ ]
Ginnie Mae REMIC Trust 20[ ]-[ ]
c/o [ ], as Trustee
[Trustee Address]
Attention: [ ]
II-3-19
Schedule I
OUTSTANDING CLCs
Each Ginnie Mae Construction Loan Certificate having any of the following Pool
Numbers, as described in greater detail on Exhibit A to the Ginnie Mae REMIC Trust 20[ ]- [ ]
Offering Circular Supplement, a copy of which is attached hereto:
Ginnie Mae Issuer
Outstanding CLCs
Acknowledged
By:_____________________
Its:______________________
20
II-3-20
REMIC STANDARD TRUST PROVISIONS
II-4-0
STANDARD TRUST PROVISIONS
FOR REMIC TRUSTS
——————————————
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITIES
——————
April 1, 2008 Edition
11-4-1
TABLE OF CONTENTS
ARTICLE I ESTABLISHMENT OF TRUST.................................................................................1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 1.06.
Establishment of Trust. ................................................................................1
Sale of Trust Assets. ....................................................................................1
Designation of REMIC Assets.....................................................................1
Registration of Trust Assets.........................................................................2
Delivery of Securities. .................................................................................2
Board Approval of Trust Agreement. ..........................................................2
ARTICLE II THE SECURITIES.....................................................................................................3
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
The Securities...............................................................................................3
Registration of Transfer and Exchange of Securities. .................................5
Mutilated, Destroyed, Lost or Stolen Securities. .........................................6
Special Transfer Restrictions Relating to Residual Interests.......................6
Residual Interest Securities..........................................................................8
Voting Rights. ..............................................................................................9
ARTICLE III DISTRIBUTIONS ON THE SECURITIES .............................................................9
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
Section 3.06.
Section 3.07.
Section 3.08.
Section 3.09.
Section 3.10.
Section 3.11.
Establishment of Accounts. .........................................................................9
Certificate and Class Factors. ....................................................................10
Payments on the Trust Assets. ...................................................................12
Distributions on the Securities. ..................................................................13
Conversion of Deposited Ginnie Mae Construction Loan
Certificates. ................................................................................................16
Ginnie Mae Guaranties and Guaranty Fee; Trustee Fee............................16
Reconciliation Process. ..............................................................................17
Determination of Interest Rate Indices. .....................................................17
Appointment of Information Agent. ..........................................................20
Annual Reports. .........................................................................................20
Operational Guidelines. .............................................................................20
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS ............................20
Section 4.01. Representations and Warranties of the Sponsor. .......................................20
Section 4.02. Representations and Warranties of the Trustee. ........................................21
Section 4.03. Sponsor Breach; Repurchase Obligation; Substitution..............................22
ARTICLE V CONCERNING THE TRUSTEE ............................................................................23
Section 5.01. Duties of Trustee........................................................................................23
Section 5.02. Certain Matters Affecting the Trustee. ......................................................24
Section 5.03. Trustee Not Liable for Securities...............................................................25
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i
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5.10.
Section 5.11.
Section 5.12.
Section 5.13.
Trustee May Own Securities......................................................................25
Payment of Trustee’s Fees and Expenses. .................................................25
Eligibility Requirements for Trustee. ........................................................25
Resignation and Removal of the Trustee. ..................................................26
Successor Trustee.......................................................................................27
Appointment of Co-Trustee. ......................................................................28
Merger or Consolidation of Trustee...........................................................28
Indemnification of HUD and Ginnie Mae. ................................................28
Voting of the Underlying Certificates........................................................29
Performance Reviews by Ginnie Mae. ......................................................29
ARTICLE VI TERMINATION.....................................................................................................29
Section 6.01. Termination by the Trustee........................................................................29
Section 6.02. Termination of Agreement.........................................................................31
Section 6.03. Termination Account. ................................................................................31
ARTICLE VII REMIC TAX PROVISIONS.................................................................................32
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
REMIC Administration..............................................................................32
Resignation and Removal of the Tax Administrator. ................................34
Prohibited Activities. .................................................................................36
Double REMIC Series. ..............................................................................36
Final Residual Proceeds.............................................................................37
ARTICLE VIII MISCELLANEOUS PROVISIONS....................................................................38
Section 8.01. Limitation of Rights of Holders.................................................................38
Section 8.02. Control by Holders.....................................................................................38
Section 8.03. Amendment of Trust Agreements..............................................................39
Section 8.04. Persons Deemed Owners. ..........................................................................39
Section 8.05. Third-Party Beneficiary; Ginnie Mae Subrogation....................................40
Section 8.06. Preemption. ................................................................................................40
Section 8.07. Governing Law. .........................................................................................40
Section 8.08. Successors. .................................................................................................40
Section 8.09. Headings. ...................................................................................................41
Section 8.10. Notice and Demand....................................................................................41
Section 8.11. Severability of Provisions. .........................................................................42
Section 8.12. Counterparts...............................................................................................42
Exhibit 1
Form of Transfer Affidavit
Exhibit 2
Form of Regular Security
Exhibit 3
Form of Class R Security
Exhibit 4
Form of Class RR Security
Exhibit 5
Form of Class RP Security
Exhibit 6
Form of Class RI Security
11-4-3
ii
STANDARD TRUST PROVISIONS FOR REMIC TRUSTS
THESE STANDARD TRUST PROVISIONS FOR REMIC TRUSTS are to be
incorporated by reference in each Trust Agreement entered into by and between a Sponsor and a
Trustee in connection with each Series of Ginnie Mae REMIC Securities and shall apply to each
Series of Ginnie Mae REMIC Securities except as otherwise provided in such Trust Agreement.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the
related Trust Agreement and the Glossary of the Ginnie Mae Multiclass Securities Guide in
effect as of the date of the Trust Agreement.
ARTICLE I
ESTABLISHMENT OF TRUST
Section 1.01. Establishment of Trust.
As of the Closing Date, the Sponsor will establish the Trust by depositing the Trust
Assets identified in the related Trust Agreement with the Trust, and the Trust will issue the
Securities, representing the entire beneficial ownership interest in the Trust, to the Sponsor as
consideration for the Trust Assets.
Section 1.02. Sale of Trust Assets.
The deposit of Trust Assets by a Sponsor to a Trust pursuant to the related Trust
Agreement shall occur upon the Closing Date for such Series and shall constitute a sale,
assignment, transfer and conveyance by the Sponsor to the Trust of all right, title and interest in
such Trust Assets as of the first day of the month of the Closing Date, notwithstanding any
provision of federal or state law to the contrary.
Section 1.03. Designation of REMIC Assets.
(a)
Single REMIC Series. In the case of a Single REMIC Series (other than a Single
REMIC Series issued in conjunction with a Double REMIC Series) in respect of a single Trust
REMIC, the assets of the Trust REMIC will consist of the Trust Assets acquired from the
Sponsor, the Segregated Portion of each Trust REMIC Account corresponding to the related
Trust REMIC, and amounts held in such Segregated Portion of such Trust REMIC Accounts
from time to time in accordance with Article 3 hereof. In the case of a Single REMIC Series
consisting of two or more side-by-side Trust REMICs or a Single REMIC Series issued in
conjunction with a Double REMIC Series, the assets of each Trust REMIC (having the
numerical or other designation specified in the Trust Agreement) shall consist of a portion of the
Trust Assets corresponding to the Trust Asset Groups specified in the Trust Agreement as assets
of such Trust REMIC, the Segregated Portion of each of the Trust REMIC Accounts established
in accordance with the Trust Agreement and corresponding to the related Trust REMIC, and
amounts held in such Segregated Portions of such Trust REMIC Accounts from time to time in
accordance with Article 3 hereof.
11-4-4
1
(b)
Double REMIC Series. In the case of a Double REMIC Series in respect of a
single Pooling REMIC, the assets of the Pooling REMIC will consist of the Trust Assets
acquired from the Sponsor (or, in the case of a Double REMIC Series in respect of a single
Pooling REMIC issued in conjunction with a Single REMIC Series, a portion of the Trust Assets
corresponding to the Trust Asset Groups specified in the Trust Agreement as assets of the
Pooling REMIC), the Pooling Portion of each Trust REMIC Account relating to such Pooling
REMIC (such Pooling Portions thereof, the “Pooling REMIC Trust Accounts”), and amounts
held in such Pooling REMIC Trust Accounts from time to time in accordance with Article 3
hereof. In the case of a Double REMIC Series in respect of two or more Pooling REMICs
(whether in respect of one or more Issuing REMICs, each such Pooling REMIC and Issuing
REMIC having a numerical or other designation as specified in the Trust Agreement), the assets
of each such Pooling REMIC (having a numerical or other designation as specified in the Trust
Agreement) shall consist of a portion of the Trust Assets corresponding to the Trust Asset
Groups specified in the Trust Agreement as assets of such Pooling REMIC, the Pooling REMIC
Trust Accounts relating to such Pooling REMIC and amounts held in such Pooling REMIC Trust
Accounts from time to time in accordance with Article 3 hereof. The assets of each Issuing
REMIC (having a numerical or other designation as specified in the Trust Agreement) will
consist of the Pooling REMIC Subaccounts that represent regular interests in each Pooling
REMIC related to such Issuing REMIC, as specified in the Trust Agreement , the Issuing Portion
of each Trust REMIC Account relating to such Issuing REMIC (such Issuing Portions of such
Trust REMIC Accounts, the “Issuing REMIC Trust Accounts”), and amounts held in such
Issuing REMIC Trust Accounts and Pooling REMIC Subaccounts from time to time in
accordance with Article 3 hereof.
Section 1.04. Registration of Trust Assets.
Each Trust Asset included in each Trust will be registered in the name of the Book-Entry
Depository or the applicable Trust Asset Depository, as the case may be, or the applicable
Depository’s nominee(s), for the benefit of the Trustee. The books and records of each
Depository will reflect the Trustee as registered holder of the related Trust Assets, and the books
and records of the Trustee will reflect that it holds the Trust Assets as Trustee of the related Trust
for the benefit of the Holders of the Securities of that Trust.
Section 1.05. Delivery of Securities.
Simultaneously with the execution and delivery of the Trust Agreement, the Trustee shall
deliver to the Sponsor the Securities.
Section 1.06. Board Approval of Trust Agreement.
Prior to the execution of the Trust Agreement and the establishment of the Trust, the
Trustee’s board of directors, its duly appointed loan committee, duly authorized officers, or duly
appointed trust committee, as the case may be, shall approve the Trust Agreement in accordance
with the Trustee’s organizational documents and any applicable state or federal regulation,
including, to the extent applicable, and without limitation 12 C.F.R. §§ 9.7 and 550.5, each as
amended from time to time, and such approval shall be reflected in the minutes of the Trustee’s
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board or committee. The Trustee shall maintain the Trust Agreement as an official record of the
Trustee from the time the Trust Agreement is executed.
ARTICLE II
THE SECURITIES
Section 2.01. The Securities.
(a)
Securities. The Securities shall be designated in the Trust Agreement. The
Securities, in the aggregate, represent the entire beneficial ownership in the Trust. The
Certificated Securities shall be issued substantially in the forms of Exhibits 2 through 6 hereto
and shall be executed and authenticated by the Trustee on behalf of the Trust. The terms of the
Uncertificated Securities and the Book-Entry Securities are set forth herein and in the related
Trust Agreement. The Book-Entry Securities to be issued as of the Closing Date are set forth on
the Issuance Statement attached as Exhibit 1 to the Trust Agreement.
(b)
Forms and Denominations of Securities.
(i)
Unless otherwise specified in the Trust Agreement, all Regular Securities
(other than Uncertificated Securities) shall be Book-Entry Securities, registered in the
name of the Book-Entry Depository or its nominee. Regular Securities (except
Uncertificated Securities and Securities that represent interests in Increased Minimum
Denomination Classes) shall be issuable in minimum denominations representing initial
principal balances or initial notional balances of $1,000 and integral multiples of $1 in
excess of $1,000. Increased Minimum Denomination Classes, if any, shall be issuable in
minimum denominations as provided in the related Trust Agreement. Uncertificated
Securities of any Class shall be issued as a single interest representing the entire Original
Class Principal Balance (or original Class Notional Balance) of such Class.
Notwithstanding the foregoing, for each Class of Book-Entry Securities, one Security
may be issued in a different name and denomination, as the Sponsor shall instruct in
writing, as necessary to represent the remainder of the Original Class Principal Balance
of such Class.
(ii)
After the initial issuance to the Book-Entry Depository or its nominee of a
Book-Entry Security backed by Trust Assets, any Beneficial Owner may request a
Certificated Security registered in its name for a fee of $25,000 (which fee, less the
Trustee’s expenses in complying with the request, will be payable to Ginnie Mae) per
physical certificate requested. Any such request for a Certificated Security shall be made
through the standard procedures of the Book-Entry Depository and any other financial
intermediary through which the Beneficial Owner holds its Book-Entry Security. Any
such Certificated Security shall be issued substantially in the form attached hereto as
Exhibit 2.
(iii) At any time and in accordance with the procedures of the Book-Entry
Depository, the Holder of a Certificated Security (other than a Residual Security) may
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surrender such Certificated Security to the Trustee and become the Beneficial Owner of a
Book-Entry Security of like tenor and denomination.
(iv)
Unless otherwise specified in the Trust Agreement, the Residual Securities
shall be issuable in minimum Percentage Interests of ten percent and integral multiples
thereof in accordance with the Sponsor’s written instruction and upon the furnishing to
the Trustee of completed Internal Revenue Service Forms W-8ECI or W-9 (or applicable
successor forms) with respect thereto.
(c)
Method of Distribution. Distributions on the Securities shall be made by the
Trustee on each Distribution Date (or, with respect to Certificated Securities, the Business Day
following each Distribution Date) to each Holder as of the related Record Date. Subject to
Section 8.04, distributions on the Book-Entry Securities shall be made through the facilities of
the Book-Entry Depository pursuant to instructions provided by the Trustee and/or the
Information Agent. Distributions on any Certificated Security shall be made (i) by check mailed
to the Holder thereof at its address reflected in the Register as of the related Record Date or (ii)
upon receipt by the Trustee of a written request of a Holder accompanied by the appropriate
wiring instructions at least five Business Days prior to a Record Date, by wire transfer of
immediately available funds on the Business Day following the related and each subsequent
Distribution Date, to the account of such Holder, if such Holder holds Regular Securities having
aggregate initial principal balances of at least $5,000,000. Notwithstanding the foregoing, the
final distribution in retirement of any Certificated Security will be made only upon presentation
and surrender of the certificate at the Corporate Trust Office. In the event of a principal or
interest payment error, the Trustee shall, pursuant to Ginnie Mae’s instructions, effect
corrections by the adjustment of payments to be made on future Distribution Dates.
(d)
Authorization, Execution, Authentication and Delivery of Securities. Certificated
Securities shall be executed by manual or facsimile signature by an authorized officer of the
Trustee, on behalf of the Trust, under the Trustee’s seal imprinted thereon (which may be a
facsimile). Securities bearing the manual or facsimile signatures of individuals who were at any
time authorized officers of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities. No
Certificated Security shall represent entitlement to any benefit under the related Trust
Agreement, or be valid for any purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for herein, executed by the Trustee by manual
signature, and such certificate of authentication upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and delivered hereunder.
All Certificated Securities shall be dated the date of their authentication, except that Securities
issued on the Closing Date shall be dated as of the Closing Date. Uncertificated Securities and
Book-Entry Securities shall be dated as of the date of their issuance.
The manual execution of the Trust Agreement by an authorized officer of each of the
Trustee and the Sponsor shall be conclusive evidence that the Book-Entry Securities and the
Uncertificated Securities have been duly and validly authorized and validly issued by the Trustee
and are entitled to the benefits of the Trust Agreement.
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Delivery of Book-Entry Securities and Uncertificated Securities occurs when the
Registrar registers the transferee as the registered owner of such Security. The Book-Entry
Securities to be issued at closing shall be identified on an Issuance Statement attached as Exhibit
1 to the Trust Agreement prepared by the Sponsor and delivered to the Trustee. On the Closing
Date, the Registrar shall register the Book-Entry Depository as the registered owner of the BookEntry Securities.
Upon execution and delivery of the Guaranty Agreement with respect to each Trust,
Ginnie Mae authorizes the issuance of the Securities, each of which is entitled to the benefits of
the following Ginnie Mae Guaranty. Each Certificated Security shall bear language substantially
to the following effect:
GUARANTY: THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION, PURSUANT TO SECTION 306(g) OF THE
NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS
SECURITY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS SET FORTH HEREIN AND IN THE RELATED
TRUST AGREEMENT. THE FULL FAITH AND CREDIT OF
THE UNITED STATES OF AMERICA IS PLEDGED TO THE
PAYMENT OF ALL AMOUNTS THAT MAY BE REQUIRED
TO BE PAID UNDER THIS GUARANTY.
If the Trust Assets related to a Security consist of Ginnie Mae Multifamily Certificates,
then the following sentence shall be added to the foregoing legend on such Certificated Security:
THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF
PREPAYMENT PENALTIES ON THIS SECURITY.
Section 2.02. Registration of Transfer and Exchange of Securities.
The Trustee shall keep one or more offices or agencies at which, subject to such
reasonable regulations as it may prescribe, the Trustee or another Person designated by the
Trustee and approved by Ginnie Mae shall be the Registrar and shall maintain a Register and
provide for the registration, transfer and exchange of Securities as herein provided.
Unless otherwise provided in the related Trust Agreement, the Trustee agrees that it shall
hold any Pooling REMIC Regular Interests on behalf of the related Issuing REMIC, as provided
in the Trust Agreement.
Upon surrender for registration of transfer of any Certificated Security at the office of the
Trustee maintained for such purpose and upon satisfaction of the conditions set forth below in
this Section 2.02 and, in the case of a Residual Security, Section 2.04, the Trustee shall promptly
execute, authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Securities of a like Class, tenor and aggregate Percentage Interest.
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At the option of the Holders, Certificated Securities may be exchanged for other
Securities of authorized denominations or Percentage Interests of like tenor and of a like
aggregate denomination or Percentage Interest, upon surrender of the Securities to be exchanged
at the office maintained for such purpose. Whenever any Certificated Securities are surrendered
for exchange the Trustee shall execute, authenticate and deliver the Securities that the Holder
making the exchange is entitled to receive. Every Certificated Security presented or surrendered
for transfer or exchange shall be duly endorsed (if so required by the Trustee) by, or be
accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed
by, the holder thereof or his attorney duly authorized in writing.
The Trustee may assess an appropriate service charge for any exchange or transfer of any
Certificated Security. No service charge shall be made for any transfer or exchange of any
Residual Securities. The Trustee 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
Certificated Security. The Trustee shall cancel and destroy all Certificated Securities
surrendered for transfer and exchange according to its standard procedures.
Section 2.03. Mutilated, Destroyed, Lost or Stolen Securities.
If (a) any mutilated Certificated Security is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Certificated Security,
and (b) there is delivered to the Trustee such security or indemnity as may be required by it to
save it harmless, then, in the absence of notice to the Trustee that such security has been acquired
by a bona fide purchaser, the Trustee shall promptly execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificated Security, a
new Certificated Security of like tenor, Class and Percentage Interest. Upon the issuance of any
new Certificated Security under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and its counsel)
connected therewith. Any duplicate Certificated Security issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust and the related Trust
REMIC, as if originally issued, regardless of whether the lost, stolen or destroyed Certificated
Security shall be found at any time.
Section 2.04. Special Transfer Restrictions Relating to Residual Interests.
(a)
No Ownership Interest may be transferred without the express written consent of
the Trustee. As a condition to that consent, any transferee (including the initial purchaser) of an
Ownership Interest must provide the Trustee with a properly completed Transfer Affidavit,
substantially in the form attached as Exhibit 1, in which the proposed transferee must represent
and warrant, among other things, that (i) it agrees that the Trustee can execute all instruments of
transfer and do all other things necessary in connection with any transfer of an Ownership
Interest, (ii) it is a U.S. Person, (iii) it is not a Disqualified Organization, (iv) it is not acquiring
the Ownership Interest as a nominee, trustee or agent for any Person that is not a U.S. Person or
that is a Disqualified Organization, (v) it is not a Plan Investor, (vi) it agrees to immediately
notify the Trustee if it becomes aware that any representation and warranty made by it in the
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Transfer Affidavit will or has become false, (vii) it agrees to be bound by, and that its rights as
owner of a Residual Interest are expressly subject to, the special transfer restrictions relating to
Residual Interests in this Section 2.04, and (viii) it agrees to not transfer or cause the transfer of
its Ownership Interest to any Person if such Person does not supply the Trustee with a properly
completed Transfer Affidavit or if it has actual knowledge that the Transfer Affidavit supplied by
such Person is false. In the case of a transfer of an Ownership Interest on the Closing Date, the
Trustee’s signature on the Trust Agreement shall constitute consent to such transfer.
(b)
Notwithstanding the provision of a Transfer Affidavit by a proposed Transferee,
the Trustee may withhold its consent to a transfer under the following circumstances: (i) to
avoid a risk of disqualification of a Trust REMIC as a REMIC or the imposition of a tax upon a
Trust REMIC, (ii) if less than all of the Transferor’s Ownership Interest would be transferred and
the transferred interest can not be expressed as a single constant percentage of the Transferor’s
Ownership Interest or (iii) if the Trustee knows or has reason to believe that a Transfer Affidavit
is false.
(c)
Any attempted or purported Transfer in violation of the provisions of this
Section 2.04 shall be absolutely null and void, shall vest no rights in the Nonpermitted
Transferee, and shall not be recognized by the Trustee. Upon receipt of written notice by a
Responsible Officer of the Trustee of registration of Transfer of an Ownership Interest to a
Nonpermitted Transferee, such Transfer shall be considered absolutely null and void, and the
Trustee shall restore the last preceding Permitted Transferee of such Ownership Interest to all
rights as owner thereof retroactive to the date of registration of the Transfer to the Nonpermitted
Transferee.
(d)
The Trustee shall be under no liability to any Person for (i) registration of a
Transfer of an Ownership Interest to a Nonpermitted Transferee that the Trustee did not know
was a Nonpermitted Transferee, (ii) making any distributions due on an Ownership Interest to
such a Nonpermitted Transferee, or (iii) taking any other action with respect to a Nonpermitted
Transferee under the provisions of the related Trust Agreement. The Trustee shall be entitled but
not obligated to recover from a Nonpermitted Transferee of an Ownership Interest all
distributions made on such Interest at or after the time of the Transfer of such Interest to such
Nonpermitted Transferee. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such Ownership Interest,
subject to the Trustee’s right to withhold any amounts from such payments.
(e)
If a tax or a reporting cost is borne by any Trust REMIC as a result of the transfer
of an Ownership Interest to a Nonpermitted Transferee, the Trustee may pay such tax or
reporting cost with amounts that otherwise would have been paid to such Nonpermitted
Transferee. In that event, neither the Nonpermitted Transferee nor the transferor shall have any
right to seek repayment of such amounts from the Trustee, Ginnie Mae, the Sponsor, the Tax
Administrator, or the other Holders.
(f)
The Trustee as Tax Administrator, or its designated agent, shall make available to
the Internal Revenue Service and to the persons specified in Section 860E(e)(3) of the Code the
information necessary for the application of Section 860E(e) of the Code. The Trustee as Tax
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Administrator, or its designated agent, may charge such persons a reasonable amount for doing
so, but must do so whether or not actually paid.
Section 2.05. Residual Interest Securities.
(a)
Single REMIC Series. With respect to a Single REMIC Series in respect of a
single Trust REMIC, the Trust will issue a single Class of Residual Securities that will represent
the Residual Interest in such Trust REMIC (substantially in the form of Exhibit 3 hereto) or with
respect to a Trust that establishes two or more single-tiered Trust REMICs, the Trust will issue
either (i) a single Class of Residual Securities that will represent the Residual Interest in each
such Trust REMIC, which will be issued substantially in the form of Exhibit 4 hereto or (ii) two
or more Classes of Securities (corresponding to the number of Trust REMICs), each representing
the Residual Interest in a separate Trust REMIC, which will be issued substantially in the form
of Exhibit 3 hereto.
(b)
Double REMIC Series. With respect to a Double REMIC Series in respect of one
or more Issuing REMICs, the Trust will issue either (i) a single Class of Residual Securities for
each Issuing REMIC and its related Pooling REMICs, which Class of Residual Securities will
represent the Residual Interest in such Issuing REMIC and its related Pooling REMICs, which
will be issued substantially in the form of Exhibit 4 hereto, or (ii) two or more Classes of
Securities (corresponding to the number of Trust REMICs for such Trust), each representing the
Residual Interest in a separate Trust REMIC, which will be issued, in the case of a Residual
Interest in a Pooling REMIC, substantially in the form of Exhibit 5 hereto, and in the case of a
Residual Interest in an Issuing REMIC, substantially in the form of Exhibit 6 hereto.
(c)
Each Holder of a Class RR Security (whether or not having a numerical or other
designation as specified in the Trust Agreement) will be entitled to separate such Security into its
component parts. Upon receipt of a Class RR Security and a written request from the Holder
thereof to separate such Security into its component parts, the Trustee shall (i) in the case of
single-tiered side-by-side Trust REMICs, issue to such registered Holder in exchange for such
Class RR Security, separately transferable, certificated and fully registered securities
substantially in the form of Exhibit 3 hereto (each, a “Class R Security”) that will, from the date
of issuance, represent the Holder’s Percentage Interest in the Residual Interest in each Trust
REMIC, (ii) in the case of a Double REMIC Series, issue to such registered Holder in exchange
for such Class RR Security (a) separately transferable, certificated and fully registered securities
substantially in the form of Exhibit 5 hereto (each, a “Class RP Security”) that will, from the date
of issuance, represent the Holder’s Percentage Interest in the Residual Interest in each related
Pooling REMIC and (b) a separately transferable, certificated and fully registered security
substantially in the form of Exhibit 6 hereto (a “Class RI Security”) that will, from the date of its
issuance, represent the Holder’s Percentage Interest in the Residual Interest in the related Issuing
REMIC, (iii) if requested by and at the expense of the Holder, obtain CUSIP Numbers for the
Class R, Class RP and Class RI Securities and (iv) make any allocations and distributions with
respect to such newly issued Securities as set forth in the related Trust Agreement.
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Section 2.06. Voting Rights.
With respect to each Series, unless otherwise provided in the related Trust Agreement, if
any Class of Securities in the Series does not have a Class Principal Balance or has an Original
Class Principal Balance that is less than or equal to 1% of the aggregate Original Class Principal
Balance of all the Securities, then 1% of the Voting Rights for that Series shall be allocated to
such Class, and the balance of the Voting Rights shall be allocated among the remaining Classes
of Securities in that Series in proportion to their respective Class Principal Balances following
the most recent Distribution Date. Voting Rights allocated to each Class of Securities shall be
allocated in proportion to the respective Percentage Interests of the Holders thereof.
ARTICLE III
DISTRIBUTIONS ON THE SECURITIES
Section 3.01. Establishment of Accounts.
(a)
Depository Accounts. The Trustee shall maintain a Book-Entry Depository
Account with the Book-Entry Depository and, if any Underlying Certificates are held through
book-entry facilities other than the Book-Entry Depository, a Trust Asset Depository Account at
each applicable Trust Asset Depository. With respect to each Trust, the Trustee shall account for
all funds in, all deposits to and all withdrawals from the Book-Entry Depository Account
separately and on a Trust-by-Trust basis and, further, on a Trust REMIC-by-Trust REMIC basis,
clearly identifying the Segregated Portions thereof. The Depository Accounts shall be credited
with amounts as provided in Sections 3.03 and 3.04 hereof.
(b)
Trustee ABA Account. The Trustee shall maintain a Trustee ABA Account,
which account shall include subaccounts consisting of the Trustee Limited Purpose Account and
the Trustee Issuer’s Account. With respect to each Trust, the Trustee shall account for all funds
in, all deposits to and all withdrawals from the Trustee ABA Account separately and on a Trustby-Trust basis, and further, on a Trust REMIC-by-Trust REMIC basis, clearly identifying the
Segregated Portions thereof. The Trustee ABA Account shall be credited with amounts as
provided in Section 3.03 hereof.
(c)
Variance Account. With respect to each Trust, the Trustee shall establish and
maintain a separate Variance Account, which will be an Eligible Account. Amounts will be
credited to the Variance Account and withdrawals will be made from the Variance Account as
specified herein. The Variance Account shall be an Outside Reserve Fund, the owner of which
solely for federal tax purposes (and not for any other purpose) will be Ginnie Mae. The
depository records of the Trustee, or, as the case may be, the depository institution or trust
company at which the Variance Account is to be established, shall reflect in respect of the
Variance Account (i) that the Trustee, as depositor, is acting in a fiduciary capacity on behalf of
the Holders of Securities in respect of the Trust, (ii) the names and respective interests of such
Holders, and (iii) that such Holders may be acting in a fiduciary capacity for others. If the
amounts on deposit in the Variance Account exceed $100, the Trustee shall invest such amounts
in Eligible Investments approved by Ginnie Mae; any investment earnings shall be for the
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account of and distributable to Ginnie Mae, unless otherwise allocated to make up for shortfalls
as provided in Section 3.04(b) hereof.
(d)
Collection Account. The Trustee will maintain an Eligible Account (the
“Collection Account”) for the purposes provided in Section 3.03(a). With respect to each Trust,
the Trustee shall account for all funds in, all deposits to and all withdrawals from the Collection
Account separately and on a Trust-by-Trust basis and, further, on a Trust REMIC-by-Trust
REMIC basis, clearly identifying the Segregated Portions thereof. Amounts on deposit from
time to time in the Collection Account may be invested in Eligible Investments. Any investment
earnings on the Collection Account shall be retained by, and be for the account of, the Trustee as
part of the Trustee Fee. Regardless whether the amounts deposited in the Collection Account are
invested, to the extent amounts required to be deposited into the Trustee ABA Account pursuant
to Section 3.03(a) are so deposited on each Ginnie Mae Certificate Payment Date, the Trustee
shall pay to Ginnie Mae from its own funds the Ginnie Mae Interest Amount as of each
Distribution Date. The depository records of the Trustee, or, as the case may be, the depository
institution or trust company at which the Collection Account is to be established, shall reflect in
respect of the Collection Account (i) that the Trustee, as depositor, is acting in a fiduciary
capacity on behalf of the Holders of Securities in respect of the Trust and Ginnie Mae, (ii) the
names and respective interests of such Holders and Ginnie Mae, and (iii) that such Holders may
be acting in a fiduciary capacity for others.
(e)
Board Approval. Prior to the establishment of any Trust Account, the Trustee’s
board of directors, its duly appointed loan committee, duly appointed trust committee or duly
authorized officers, as the case may be, or, as the case may be, the Trustee’s board of directors,
its duly appointed loan committee, duly authorized officers, or duly appointed trust committee,
as the case may be, of the depository institution or trust company at which such Trust Account is
to be established, shall approve the establishment of such Trust Account in accordance with the
organizational documents of such institution and any applicable state or federal regulation,
including, to the extent applicable, and without limitation 12 C.F.R. §§ 9.7 and 550.5, each as
amended from time to time, and such approval shall be reflected in the minutes of such board or
committee, as applicable. The Trustee, or, as the case may be, the depository institution or trust
company at which any Trust Account is to be established, shall maintain the Trust Agreement as
an official record from the time of its execution.
(f)
Segregated Portions. Each Trust REMIC Account required to be maintained in
accordance with this Section 3.01 shall include, and where applicable a reference to such Trust
REMIC Account herein or in the related Trust Agreement shall be understood to be a reference
to, a Segregated Portion of such Trust REMIC Account corresponding to each such Trust
REMIC.
Section 3.02. Certificate and Class Factors.
(a)
Certificate Factors for Trust Assets other than Ginnie Mae Multifamily
Certificates. The Trustee shall use its reasonable best efforts to obtain the Certificate Factors for
Trust MBS (other than any Ginnie Mae Multifamily Certificates) and Underlying Callable
Securities (and the Underlying Certificate Factors for Underlying Certificates and Underlying
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SMBS Securities) on or before 11:00 a.m. Eastern time on the second Business Day preceding a
Distribution Date (or, in the case of Ginnie Mae II Certificates, the third preceding Business
Day), or such other date set forth in the related Trust Agreement. In the event any Underlying
Certificate Factors for Underlying Certificates or Underlying SMBS Securities or Certificate
Factors for Underlying Callable Securities and Ginnie Mae Platinum Certificates are not
published or otherwise available as specified in the preceding sentence, the Trustee shall
immediately notify the Information Agent and Ginnie Mae and follow the procedures set forth in
Section 3.02(d).
(b)
Calculated Certificate Factors for Trust Assets other than Ginnie Mae Multifamily
and Ginnie Mae Platinum Certificates. With respect to any Trust MBS (other than Ginnie Mae
Multifamily Certificates and Ginnie Mae Platinum Certificates) for which a Certificate Factor is
not available by 1:00 p.m. Eastern time on the Certificate Factor Date, the Trustee shall
determine the Calculated Certificate Factor for such Trust MBS.
(c)
Certificate Factors, Calculated Certificate Factors and Corrected Certificate
Factors for Ginnie Mae Multifamily Certificates. With respect to each Ginnie Mae Multifamily
Certificate:
(i)
The Trustee, in accordance with operational guidelines established by
Ginnie Mae, will use its reasonable best efforts to do the following on or before 12:00
noon on the second Business Day preceding a Distribution Date: determine the related
Certificate Factor, determine whether the Certificate Factor is correct in the case where
the Certificate Factor indicates a significant payoff, determine the Corrected Certificate
Factor if the Certificate Factor is incorrect and advise the Book-Entry Depository if the
Trustee plans to use the Corrected Certificate Factor in following the procedures set forth
in Section 3.02(e). If the Certificate Factor is correct, it will use the Certificate Factor in
following the procedures for determining Class Factors set forth in Section 3.02(e).
(ii)
If the Trustee cannot determine by 12:00 noon Eastern time on the second
Business Day preceding a Distribution Date whether the related Certificate Factor is
correct, the Trustee shall determine the Calculated Certificate Factor for such Ginnie Mae
Multifamily Certificate and use the Calculated Certificate Factor in following the
procedures for determining Class Factors set forth in Section 3.02(e).
(d)
Unavailability of Certificate Factors for Underlying Certificate Factors. In the
event that the Underlying Certificate Factor for any Underlying Certificate or Underlying SMBS
Security (or Certificate Factor for any Ginnie Mae Platinum Certificate or Underlying Callable
Security) has not been made available to the Trustee by 11:00 a.m. Eastern time on the second
Business Day preceding a Distribution Date (or in the case of Ginnie Mae Platinum Certificates
backed by Ginnie Mae II MBS Certificates, the third preceding Business Day), the Trustee shall
assume for purposes hereof that such factors have not changed from the preceding Underlying
Certificate Payment Date or Underlying SMBS Security Payment Date (or Certificate Factor
Date). As a result, the Principal Distribution Amount in respect of any Underlying Certificate or
Underlying SMBS Security (or Trust Asset constituting a Ginnie Mae Platinum Certificate or
Underlying Callable Security) described in the preceding sentence shall be calculated on the
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basis of such assumed (i.e., unchanged) factors, with the effect that no amounts in respect of
principal attributable to such Underlying Certificate or Underlying SMBS Security (or Ginnie
Mae Platinum Certificate or Underlying Callable Security) shall be distributable on the related
Securities on the related Distribution Date.
(e)
Class Factors. Based on, as appropriate, Certificate Factors, Corrected Certificate
Factors, if any, and Calculated Certificate Factors, if any, determined in accordance with
Sections 3.02(a), (b), (c) and (d) above, the Trustee shall calculate the Class Factors, the
Principal Distribution Amount, the Interest Distribution Amount and the Accrual Amount, if any,
for the Distribution Date. In addition, based on the provisions of the Trust Agreement, the
Trustee shall calculate the Interest Rate for each Class and the amount of principal and interest to
be distributed to each Class on that Distribution Date. The Trustee shall report the Interest Rate
and the Class Factor for each Class and any Calculated Certificate Factors and Corrected
Certificate Factors (and other information as requested by Ginnie Mae from time to time) to the
Information Agent no later than 6:00 p.m. Eastern time on the second Business Day preceding
the Distribution Date; except that, in the case of Security Groups for which the related Trust
Assets consist of Ginnie Mae II Certificates, the information described above shall be reported
no later than 6:00 p.m. Eastern time on the third Business Day preceding the Distribution Date.
Section 3.03. Payments on the Trust Assets.
(a)
Application of Payments. On each Ginnie Mae Certificate Payment Date,
Underlying Certificate Payment Date and Underlying SMBS Security Payment Date, as
applicable, (i) the Book-Entry Depository shall be entitled to all payments in respect of Trust
Assets held through the facilities of the Book-Entry Depository and shall credit the Trustee ABA
Account with all such amounts; and (ii) each Trust Asset Depository shall be entitled to all
payments in respect of the remaining Trust Assets held through the facilities of such Trust Asset
Depository and shall credit the related Trust Asset Depository Account with all such amounts. In
each case, such amounts shall be held by the applicable depository in trust for the exclusive
benefit of the Trustee as the holder of the Trust Assets. All amounts received in respect of Trust
Assets and credited to the Trustee ABA Account and the Trust Asset Depository Account, if
applicable, shall be withdrawn therefrom by the close of business on the date of receipt in such
account and deposited into the Collection Account for retention until the next Distribution Date
for the related Securities; provided, however, if the Ginnie Mae Certificate Payment Date,
Underlying Callable Security Payment Date, Underlying Certificate Payment Date or Underlying
SMBS Security Payment Date coincides with the Distribution Date for the related Securities (i.e.,
such amounts will be received and distributed on the same day), then such amounts shall be
immediately deposited into the Collection Account from the Trustee ABA Account and the Trust
Asset Depository Account, if applicable, upon the receipt of such funds by the Trustee ABA
Account and the Trust Asset Depository Account, if applicable, and the Trustee shall
immediately wire transfer such amounts to the Book-Entry Depository Account for distribution
pursuant to Sections 3.04(d) and (f) hereof. Except as otherwise provided in the proviso to the
immediately preceding sentence, by no later than 9:00 a.m. Eastern time (or such other time that
may be approved by Ginnie Mae) on such next Distribution Date for the related Securities, all
amounts on deposit in the Collection Account that are identified as (i) distributable as principal,
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interest and related Prepayment Penalties, if any, in respect of Book-Entry Securities in respect
of such Distribution Date shall be withdrawn therefrom and deposited into the Book-Entry
Depository Account for distribution pursuant to Section 3.04(d) and (f); and (ii) distributable as
principal, interest and related Prepayment Penalties, if any, in respect of Uncertificated Securities
that are registered to the Trustee of the related MX Trust, if any, shall be withdrawn therefrom
and deposited into the Book-Entry Depository Account for distribution pursuant to Sections
3.04(c) and 3.04(d) hereof. All remaining amounts on deposit in the Collection Account
distributable as (a) principal, interest and related Prepayment Penalties, if any, in respect of
Certificated Securities in respect of such Distribution Date, (b) Structural Excess and (c) Trustee
Fee amounts and investment earnings, shall be withdrawn therefrom for application pursuant to
Section 3.04(e), (f) and (i) and Section 3.06(c) hereof. In addition, no later than 10:00 a.m.
Eastern time on such Distribution Date, amounts on deposit in the Collection Account in excess
of the amounts set forth in the preceding sentence (“Collection Excess Amounts”) shall be
withdrawn therefrom and shall be deposited in the Variance Account.
(b)
[Reserved].
(c)
Separate Application of Payments. The application of payments pursuant to
Section 3.03(a) shall be made separately in respect of each Trust REMIC other than an Issuing
REMIC. In the case of a Single REMIC Series in respect of a single Trust REMIC, each
reference to a Trust REMIC Account shall be understood to refer to the Segregated Portion of
such account corresponding to such Trust REMIC. In the case of a Series including side by side
Trust REMICs or one or more Pooling REMICs or one or more Issuing REMICs, each reference
to a Trust Account or Trust REMIC Account shall be understood to refer to the Segregated
Portion of such account corresponding to each such Trust REMIC.
Section 3.04. Distributions on the Securities.
(a)
Distribution Date Statement. No later than 2:00 p.m. Eastern time on the first
Business Day following each Distribution Date, the Trustee shall provide to the Information
Agent a Distribution Date Statement in such form as is approved by the Trustee and Ginnie Mae.
Each Distribution Date Statement will specify (i) the Trustee Fee paid to the Trustee and the
amounts of investment earnings or amounts held in the Collection Account, (ii) amounts
distributed on such Distribution Date as principal and interest on the Book-Entry Securities from
amounts on deposit in the Book-Entry Depository Account, (iii) amounts distributed on such
Distribution Date as Prepayment Penalties on the Book-Entry Securities from the Book-Entry
Depository Account, such amounts to be determined pursuant to the receipt of a notice from the
Ginnie Mae Issuer as to the Mortgagor’s payment of any Prepayment Penalties, (iv) amounts
distributed on such Distribution Date as principal and interest on the Certificated Securities from
amounts on deposit in the Collection Account, (v) amounts distributed on such Distribution Date
as Prepayment Penalties on the Certificated Securities from the Collection Account, such
amounts to be determined pursuant to the receipt of a notice from the Ginnie Mae Issuer as to the
Mortgagor’s payment of any Prepayment Penalties, and (vi) the Ginnie Mae Interest Amount for
the Distribution Date from the immediately preceding calendar month.
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(b)
Distribution Shortfall and Deposits from Ginnie Mae in respect of Guaranty. No
later than 10:00 a.m. Eastern time on the Distribution Date, the Book-Entry Depository shall
determine the amount, if any, by which (A) the amounts distributable as principal and interest on
the Book-Entry Securities on such Distribution Date, exceed (B) the amounts on deposit in the
Book-Entry Depository Account with respect to such Distribution Date (the “Depository
Shortfall Amount”). The Book-Entry Depository immediately shall notify Ginnie Mae of the
amount of such deficiency, and the account or accounts to which Ginnie Mae should transfer
such amounts. In the event that there are sufficient amounts in the Variance Account to cover
the Depository Shortfall Amount, the Trustee shall withdraw the Depository Shortfall Amount
from the Variance Account and wire transfer such amount to the Book-Entry Depository
Account no later than 10:01 a.m., and shall immediately inform Ginnie Mae of any such transfer.
Not later than 10:00 a.m. Eastern time on the Business Day preceding each Distribution Date the
Trustee shall determine the amount, if any, by which (A) the sum of (1) the amounts distributable
as principal and interest on the Certificated Securities on such Distribution Date and (2) the
Trustee Fee payable on such Distribution Date exceeds (B) the positive amount, if any, by which
(1) the amounts received on the Trust Assets on the related Ginnie Mae Certificate Payment
Date, Underlying Certificate Payment Date and Underlying SMBS Security Payment Date and
excluding Prepayment Penalties exceed (2) the amounts distributable as principal and interest on
the Book-Entry Securities on such Distribution Date (the “Certificated Shortfall Amount” and,
together with the Depository Shortfall Amount, the “Distribution Shortfall Amount”). If the
Certificated Shortfall Amount is greater than the amounts remaining on deposit in the Variance
Account as of such Distribution Date, the Trustee immediately shall notify Ginnie Mae of the
amount of such deficiency, and the account or accounts to which Ginnie Mae should transfer
such amounts. In the event that there are sufficient funds in the Variance Account to cover the
Certificated Shortfall Amount, the Trustee shall withdraw the Certificated Shortfall Amount
from the Variance Account and transfer such amount to the Collection Account and shall notify
Ginnie Mae of any such transfer.
(c)
Uncertificated Securities. On each Distribution Date the Trustee shall distribute
all amounts held in the Book-Entry Depository Account to the extent distributable as principal
and interest and related prepayment penalties, if any, on the Uncertificated Securities on each
Distribution Date. The Book-Entry Depository will credit the accounts of its record owners of
such Uncertificated Securities in accordance with the standard procedures.
(d)
Book-Entry Securities. The Trustee hereby directs the Book-Entry Depository to
withdraw from the Book-Entry Depository Account on each Distribution Date all amounts held
in such account, to the extent distributable as principal and interest and related Prepayment
Penalties, if any, on the Book-Entry Securities on that Distribution Date. On each Distribution
Date, the Book-Entry Depository will credit the accounts of its record owners of such BookEntry Securities in accordance with the standard procedures of the Book-Entry Depository.
(e)
Certificated Securities. On the Business Day following each Distribution Date,
the Trustee shall distribute from the Collection Account all amounts distributable on the
Certificated Securities to the Holders thereof.
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(f)
Distributions. On each Distribution Date (or, with respect to Certificated
Securities, on the Business Day following each Distribution Date), the Trustee (and/or the BookEntry Depository on behalf of and pursuant to the instructions of the Trustee) shall make such
distributions on (and in the case of any Accrual Security, shall record such additions to the
principal amount of) the Securities issued in respect of any Trust as shall be provided in the
related Trust Agreement. Any distributions or accruals of interest made on a Distribution Date
on the Securities issued in respect of a particular Trust shall be at the Interest Rate set forth in or
as otherwise described in the related Trust Agreement and in respect of the related Accrual
Period.
(g)
Allocations of Distributions. The Holders of any Class entitled to receive
distributions on any Distribution Date shall receive such distributions on a pro rata basis among
the Securities of such Class based on the principal balance, notional balance or percentage
interest of such Securities. All distributions of principal on the Securities issued in respect of a
particular Trust shall be made as provided in the related Trust Agreement. Unless otherwise
indicated in the Trust Agreement, all distributions made on any Security on any Distribution
Date (other than distributions in respect of Prepayment Penalties) shall be applied first to any
interest payable thereon on such Distribution Date and then to any principal thereof.
(h)
Interest Accrual. Unless otherwise provided in the related Trust Agreement, the
amount of interest accrued on each Class during an Accrual Period and to be distributed thereon
(or, to the extent applicable in the case of an Accrual Security, added to the principal amount
thereof) on the related Distribution Date shall be 1/12th of the applicable Interest Rate multiplied
by the Class Principal Balance (or Class Notional Balance) of such Class prior to the distribution
of principal (or, in the case of an Accrual Security, the addition of accrued interest to principal)
on such Distribution Date. Interest on the Securities will be computed on the basis of a 360-day
year consisting of twelve 30-day months.
(i)
Distributions on Residual Securities. In addition to such other distributions on a
Class of Residual Securities as may be provided in the related Trust Agreement for the related
Series, on each Distribution Date the Trustee shall distribute (i) to the Holders of the Residual
Interest in each Trust REMIC, in the case of a Single REMIC Series, or in each Pooling REMIC,
in the case of a Double REMIC Series, any amounts remaining in the related Segregated Portion
of any Trust REMIC Account on such date (after the payment of all amounts distributable on
such date on the Regular Interests in such Trust REMIC or Pooling REMIC) that are attributable
to Structural Excess for such Trust REMIC or Pooling REMIC and (ii) to the Holders of the
Residual Interest in each Issuing REMIC in the case of a Double REMIC Series, any amounts
remaining in the related Pooling REMIC Subaccounts after the payment of all amounts
distributable therefrom on the related Regular Securities.
(j)
Ginnie Mae Interest Amounts. The Trustee shall distribute to Ginnie Mae the
Ginnie Mae Interest Amount with respect to that Distribution Date as soon as practicable but no
later than the first Business Day of the next succeeding calendar month following such
Distribution Date, as instructed by Ginnie Mae.
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Section 3.05. Conversion of Deposited Ginnie Mae Construction Loan Certificates.
Each Deposited Ginnie Mae Construction Loan Certificate may be redeemed prior to its
stated maturity date by the issuance of a pro rata interest in a Ginnie Mae Project Loan
Certificate. Upon issuance thereof, each pro rata interest in a Ginnie Mae Project Loan
Certificate will constitute a Trust Asset and shall be registered in accordance with Section 1.04
hereof. Subject to Section 7.03(v) hereof, the Trustee shall take all actions that it deems
necessary or advisable to facilitate the conversion of each Deposited Ginnie Mae Construction
Loan Certificate into a Ginnie Mae Project Loan Certificate (provided, that the conversion of a
Deposited Ginnie Mae Construction Loan Certificate into a Ginnie Mae Project Loan Certificate
shall not itself constitute or be considered to be a modification of the Trust MBS).
Section 3.06. Ginnie Mae Guaranties and Guaranty Fee; Trustee Fee.
(a)
Ginnie Mae Guaranty. With respect to each Series, pursuant to the Guaranty
Agreement, Ginnie Mae, in exchange for the Ginnie Mae Guaranty Fee, has guaranteed to each
Holder of a Security the timely payment of principal and interest on the Holder’s Security in
accordance with the terms of the applicable Trust Agreement.
(b)
Ginnie Mae Guaranty Payments. If the Book-Entry Depository and/or the
Trustee, as the case may be, discovers that payments on the Trust Assets underlying a Series
together with any funds available in the Variance Account will be inadequate to distribute
principal and interest to the Securities of such Series on any Distribution Date in accordance with
the terms of the Trust Agreement, the Book-Entry Depository and/or the Trustee, as the case may
be, promptly shall inform Ginnie Mae that a Ginnie Mae Guaranty Payment must be made. In
that event, Ginnie Mae (or its agent) will transfer the amount of the shortfall to the Book-Entry
Depository Account or Collection Account, as applicable, in immediately available funds in
accordance with Section 3.04(b) hereof. At Ginnie Mae’s option, Ginnie Mae may instruct the
Person designated by the Trustee and acceptable to Ginnie Mae as the Person to hold funds on
behalf of the Trustee (which Person initially shall be The Bank of New York) to transfer such
amount. In addition, if on the Final Distribution Date of any Class, the funds available to be
distributed on such Class are insufficient to reduce the Class Principal Balance of such Class to
zero, Ginnie Mae shall make a Ginnie Mae Guaranty Payment in the amount of such
insufficiency. In the event that Ginnie Mae makes any Ginnie Mae Guaranty Payment to reduce
the Class Principal Balance of any Class to zero on its Final Distribution Date, such Class shall
continue to be treated as outstanding for all purposes, and Ginnie Mae shall be deemed to have
purchased the related Class and will be entitled to all subsequent distributions on such Class.
(c)
Trustee Fee. On the Business Day following each Distribution Date, the Trustee
shall withdraw for its own account from the Collection Account, the Trustee Fee and any
investment earnings payable with respect to such Distribution Date.
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Section 3.07. Reconciliation Process.
After a Distribution Date, at the request of Ginnie Mae, the Trustee shall reconcile
payments in accordance with the Ginnie Mae Multiclass Operational Guidelines. Such
reconciliation may involve credits and charges to one or more Trust Accounts.
Section 3.08. Determination of Interest Rate Indices.
(a)
General. Unless otherwise provided in the related Trust Agreement, each
Floating Rate and Inverse Floating Rate Class shall bear interest during each Accrual Period at a
rate determined by reference to one of the following indices: (i) LIBOR, (ii) COFI, (iii) a
Treasury Index or (iv) the Prime Rate. The Trustee shall determine the applicable interest rate
index levels in accordance with this Section and shall compare the results with interest rate index
levels posted on Ginnie Mae’s Multiclass Securities e-Access, located on Ginnie Mae’s website,
by the Information Agent. If there is a discrepancy, the Trustee shall contact the Information
Agent to resolve the discrepancy. If the Trustee cannot resolve the discrepancy, the Trustee will
contact Ginnie Mae to resolve the difference. Absent manifest error, Ginnie Mae’s
determination (or, if Ginnie Mae is not consulted, the Trustee’s determination) of the applicable
interest rate index levels and its calculation of the Interest Rates of the Floating Rate and Inverse
Floating Rate Classes shall be final and binding.
(b)
Determination of LIBOR. The Trustee (or its agent) shall calculate the Interest
Rates of LIBOR Classes for each Accrual Period (after the first Accrual Period) on the related
Floating Rate Adjustment Date. On each Floating Rate Adjustment Date, the Trustee or its agent
will determine the applicable LIBOR in accordance with one of the two following methods
described below, as specified in the related Trust Agreement.
(i)
BBA LIBOR. Pursuant to this method, LIBOR shall be determined as the
rate (the “BBA Interest Settlement Rate”), expressed as a percentage per annum, for onemonth U.S. Dollar deposits as it appears on the Dow Jones Telerate Service page 3750
(or such other page as may replace page 3750 on that service or such other service as may
be nominated by the BBA for the purpose of displaying BBA Interest Settlement Rates)
(the “Designated Telerate Page”) as of 11:00 a.m. London time on the related Floating
Rate Adjustment Date. If, on any Floating Rate Adjustment Date, the BBA Interest
Settlement Rate is not reported in the manner described above and does not appear on the
Designated Telerate Page, the Trustee shall determine LIBOR in the manner set forth in
clause (ii) below.
(ii)
LIBO Method. Pursuant to this method, LIBOR shall be determined on
the basis of the offered quotations of the Reference Banks, as those quotations appear on
the Reuters Screen LIBO Page, to the extent available. If not available from the Reuters
Screen LIBO Page, the Trustee or its agent will request the Reference Banks to provide
the offered quotations to the Trustee as of 11:00 a.m. (London time) on that Floating Rate
Adjustment Date, and will determine the applicable LIBOR based on those quotations. If
any Reference Bank designated by the Trustee should be removed from the Reuters
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Screen LIBO Page or in any other way fails to meet the qualifications of a Reference
Bank, the Trustee may, in its sole discretion, designate an alternative Reference Bank.
On each Floating Rate Adjustment Date, the Trustee shall determine LIBOR for
the next Accrual Period as follows:
(A)
If on any Floating Rate Adjustment Date two or more of the
Reference Banks provide offered quotations of the applicable maturity, LIBOR
for the next Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards, if necessary, to the nearest
whole multiple of 1/16%).
(B)
If on any Floating Rate Adjustment Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next Accrual
Period shall be whichever is the higher of (x) LIBOR as determined on the
previous Floating Rate Adjustment Date and (y) the Reserve Interest Rate.
(C)
If on any Floating Rate Adjustment Date the Trustee is required
but is unable to determine the Reserve Interest Rate, LIBOR for the next Accrual
Period shall be LIBOR as determined on the previous Floating Rate Adjustment
Date, or, in the case of the first Floating Rate Adjustment Date, the level of
LIBOR used to calculate the initial Interest Rate of the particular LIBOR Class.
In the event that LIBOR becomes unavailable, the Trustee shall designate a new index
(approved by Ginnie Mae) based upon comparable information and methodology. The Trustee
shall select an alternative index only if it receives an Opinion of Counsel that the selection of
such alternative index will not cause the related Trust REMIC or REMICs to lose their
classification as REMICs for federal income tax purposes. If at any time after LIBOR becomes
unavailable, it again becomes available, the Interest Rates for the related LIBOR Classes for each
subsequent Accrual Period shall be calculated by reference to LIBOR.
(c)
Determination of COFI. On each Floating Rate Adjustment Date, the Trustee (or
its agent) shall calculate the Interest Rates of COFI Classes for the related Accrual Period by
reference to COFI as published most recently by the FHLB of San Francisco prior to such
Floating Rate Adjustment Date.
Upon the occurrence of an Alternative Rate Event, the Trustee shall calculate the Interest
Rates of the COFI Classes for the subsequent Accrual Periods by using, in place of COFI, (i) the
replacement index, if any, published or designated by the FHLB of San Francisco or (ii) if no
replacement index is so published or designated, an alternative index selected by the Trustee (or
its agent) and approved by Ginnie Mae that has performed, or that the Trustee expects to
perform, in a manner substantially similar to COFI. At the time an alternative index is first
selected by the Trustee, the Trustee shall determine the average number of basis points, if any,
by which the alternative index differed from COFI for such period as the Trustee, in its sole
discretion, reasonably determines to reflect fairly the long-term difference between COFI and the
alternative index, and shall adjust the alternative index by such average. The Trustee shall select
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an alternative index only if it receives an Opinion of Counsel that the selection of such index will
not cause the related Trust REMIC or REMICs to lose their classification as REMICs for federal
income tax purposes. If at any time after the occurrence of an Alternative Rate Event, the FHLB
of San Francisco resumes publication of COFI, the Interest Rates of the COFI Classes for each
subsequent Accrual Period shall be calculated by reference to COFI.
(d)
Determination of the Treasury Index. The Trustee (or its agent) shall calculate the
Interest Rates of Treasury Index Classes for each Accrual Period (after the first Accrual Period)
on the related Floating Rate Adjustment Date. On each Floating Rate Adjustment Date, the
Trustee will determine the applicable Treasury Index, which (i) in the case of the weekly average
yield on U. S. Treasury securities adjusted to a constant maturity of one, three, five, seven or ten
years or to some other maturity, will be as published by the Federal Reserve Board in the most
recent edition of Federal Reserve Board Statistical Release No. H.15 (519) that is available to the
Trustee and (ii) in the case of the auction average (investment) yield on three-month or sixmonth U.S. Treasury bills, will be as made available to the Trustee on the Treasury Public
Affairs Information Line. The Trustee shall consider a new value for the Treasury Index to have
been made available on the day following the date it is released by the Federal Reserve Board or
placed on the Treasury Public Affairs Information Line.
In the event that the applicable Treasury Index becomes unavailable, the Trustee (or its
agent) shall designate a new index, approved by Ginnie Mae, based upon comparable
information and methodology. The Trustee shall select an alternative index only if it receives an
Opinion of Counsel that the selection of such alternative index will not cause the related Trust
REMIC or REMICs to lose their classification as REMICs for federal income tax purposes. If at
any time after the applicable Treasury Index becomes unavailable, it again becomes available,
the Interest Rates for the related Treasury Index Classes for each subsequent Accrual Period shall
be calculated by reference to the applicable Treasury Index.
(e)
Determination of the Prime Rate. On each Floating Rate Adjustment Date, the
Trustee (or its agent) shall calculate the Interest Rates of Prime Rate Classes for the next Accrual
Period by reference to the rate published as the “Prime Rate” in the “Money Rates” section or
other comparable section of The Wall Street Journal on such Floating Rate Adjustment Date. In
the event The Wall Street Journal publishes a prime rate range, the average of that range, as
determined by the Trustee, shall be the Prime Rate. In the event The Wall Street Journal no
longer publishes a “Prime Rate” entry, the Trustee shall designate a new methodology, approved
by Ginnie Mae, for determining the Prime Rate based on comparable data. The Trustee shall
select an alternative methodology only if it receives an Opinion of Counsel that the selection of
such methodology will not cause the related Trust REMIC or REMICs to lose their classification
as REMICs for federal income tax purposes. If at any time after the Prime Rate becomes
unavailable in The Wall Street Journal, it again becomes available, the Interest Rates for the
Prime Rate Classes for each subsequent Accrual Period shall be calculated by reference to the
Prime Rate published in The Wall Street Journal.
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Section 3.09. Appointment of Information Agent.
Except as otherwise provided in the Trust Agreement, at the direction of Ginnie Mae, the
Trustee of each Trust has appointed The Bank of New York to be the Information Agent. Ginnie
Mae has reserved the right to substitute at any time another Person as the Information Agent.
Section 3.10. Annual Reports.
Within a reasonable period of time after the end of each calendar year (but in no event
later than sixty days after the end of such calendar year), the Trustee shall furnish or cause to be
furnished to Ginnie Mae and to each Person who at any time during the calendar year was the
Holder of a Security a statement containing (a) in the case of Regular Securities, the amount of
distributions allocable to principal and the amount allocable to interest, or (b) in the case of
Residual Securities, the amount of distributions, in each case with respect to the Class of which
such Holder’s Security is a part, aggregated for such calendar year or applicable portion thereof
during which such Person was a Holder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information shall be provided by the
Tax Matters Person pursuant to any requirements of the Code, Treasury Regulations and the
REMIC Provisions as are from time to time in force.
Section 3.11. Operational Guidelines.
Ginnie Mae has established operational guidelines designed to assist the operational
departments of the Trustee, the Book-Entry Depository, the Information Agent and Ginnie Mae
in complying with the requirements of this Article III. Ginnie Mae has reserved the right,
consistent with law, to alter or waive any of the requirements of the operational guidelines or to
institute other requirements as it deems appropriate. The Trustee hereby agrees to comply with
the Ginnie Mae Multiclass Securities Operational Guidelines, as amended from time to time.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01. Representations and Warranties of the Sponsor.
The Sponsor hereby represents and warrants as follows:
(a)
The Trust Agreement constitutes the legal, valid and binding agreement of the
Sponsor, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights generally and to
general principles of equity regardless whether enforcement is sought in a proceeding in equity
or at law;
(b)
Neither the execution and delivery by the Sponsor of the Trust Agreement, nor the
consummation by the Sponsor of the transactions therein contemplated, nor compliance by the
Sponsor with the provisions thereof, will (i) conflict with or result in a breach of, or constitute a
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default under, any of the provisions of the articles of incorporation or by-laws of the Sponsor or
any law, governmental rule or regulation or any judgment, decree or order binding on the
Sponsor or any of its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which the Sponsor is a party or by which it is bound, or (ii)
result in the creation of any lien, charge, or encumbrance upon any of its properties pursuant to
the terms of any such indenture, mortgage, deed of trust, contract or other instrument;
(c)
The information (i) set forth in the Final Data Statement or (ii) with respect to a
Multifamily Series in which there is no Final Data Statement, set forth in Exhibit A to the
Offering Circular Supplement, for such Series with respect to each Trust Asset is true and correct
in all material respects as of the Closing Date;
(d)
The representations and warranties made by the Sponsor in the Sponsor
Agreement are true and correct in all material respects at and as of the Closing Date with the
same effect as if made on the Closing Date;
(e)
The Sponsor has complied with all the agreements (including, without limitation,
the covenants in the Sponsor Agreement) and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date; and
(f)
Each Ginnie Mae Multifamily Certificate included in the Trust constitutes a
“qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard
to the rule in Treasury Regulation section 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage, or any substantially similar successor provision).
It is understood and agreed that the representations and warranties set forth in this Section
4.01 shall survive delivery of the Trust Assets to the Trustee and shall inure to the benefit of the
Trustee and Ginnie Mae notwithstanding any restrictive or qualified endorsement or assignment.
Upon the discovery by the Sponsor or the Trustee of a breach of the foregoing representations
and warranties, the party discovering such breach shall give prompt written notice to the other
party to the Trust Agreement and to Ginnie Mae, and in no event later than two Business Days
from the date of such discovery.
Section 4.02. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants as follows:
(a)
The Trustee acknowledges and declares that it holds and will hold the Trust
Assets identified in the Final Data Statement, or, in the case of certain Ginnie Mae Multifamily
Certificates, the Offering Circular Supplement or Final Data Statement, as applicable, and that it
has agreed to hold all documents delivered to it with respect to such Trust Assets and all assets of
the Trust in trust for the exclusive use and benefit of all present and future Holders and, to the
extent provided herein, Ginnie Mae.
(b)
The Trustee (i) acquired the Trust Assets on behalf of the Trust from the Sponsor
in good faith, for value, and without notice or knowledge of any adverse claim, lien, charge,
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encumbrance or security interest (including, without limitation, any federal tax liens or liens
arising under ERISA), (ii) except as permitted in the Trust Agreement, has not and will not, in
any capacity, assert any claim or interest in the Trust Assets and will hold (or its agent will hold)
such Trust Assets and the proceeds thereof in trust pursuant to the terms of the Trust Agreement,
and (iii) has not encumbered or transferred its right, title or interest in the Trust Assets.
(c)
On the Closing Date, the Trustee shall deliver to the Sponsor and Ginnie Mae a
certificate certifying that the Trustee (or an agent thereof) is in possession of the Trust Assets for
such Series.
Section 4.03. Sponsor Breach; Repurchase Obligation; Substitution.
Within 90 days of the earlier of Sponsor’s discovery or notice to the Sponsor of any
breach by the Sponsor of any of its representations, warranties or covenants under a Sponsor
Agreement or the related Trust Agreement which breach, in the judgment of the Trustee or
Ginnie Mae, materially and adversely affects the value of any Trust Asset or the interest of the
Trust therein, the Sponsor shall (i) cure such breach, (ii) in the case of Trust MBS other than
HECM MBS, remove such affected Trust MBS from the Trust and substitute one or more Ginnie
Mae Certificates (A) with a Certificate Rate equal to the Certificate Rate of the replaced Trust
MBS as reflected in the records of the Trust and (B) with an aggregate outstanding principal
balance equal to the outstanding principal balance of the replaced Trust MBS, as reflected in the
records of the Trust, (C) with a Maturity Date no later than the Maturity Date of the replaced
Trust MBS and no earlier than six months prior to the Maturity Date of the replaced Trust MBS,
(D) that are entitled to payments on the following Ginnie Mae Certificate Payment Date (which
shall be the same Ginnie Mae Certificate Payment Date on which the replaced Trust MBS was
payable) and (E) that otherwise conform to the requirements of the Trust Agreement, (iii) in the
case of HECM MBS, remove such affected HECM MBS from the Trust and substitute one or
more HECM MBS (A) with a HECM MBS Rate equal to the HECM MBS Rate of the replaced
HECM MBS, (B) with an aggregate outstanding principal balance equal to the outstanding
principal balance of the replaced HECM MBS, (C) with a Maturity Date no later than the
Maturity Date of the replaced HECM MBS, (D) satisfying such additional requirements, if any,
as set forth in the related Trust Agreement or (iv) with the consent of Ginnie Mae purchase the
affected Trust Asset from the Trust. The Sponsor shall effect any substitution of a Trust MBS by
depositing with the Trust each Ginnie Mae Certificate to be substituted. However, no
substitution for a Trust MBS may be made 90 days or more after the Closing Date unless such
representations, warranties or covenants relate specifically to the characteristics of such Trust
MBS. No substitution for a Trust MBS may be made for any reason two years or more from the
Closing Date unless an Opinion of Counsel addressed to and satisfactory to Ginnie Mae is
delivered to the effect that such substitution will not adversely affect the status of the related
Trust as a REMIC for federal income tax purposes.
(a)
The Sponsor shall effect a purchase of a Trust Asset from the Trust by depositing
with the Trustee cash in an amount equal to the sum of (i) the then outstanding principal balance
of the Trust Asset to be purchased, as reflected in the records of the Trustee, plus (ii) interest on
that amount at the Certificate Rate for the period from the date on which the Trust ceases to be
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entitled to distributions of interest on the repurchased Trust Asset through the next succeeding
Accounting Date.
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01. Duties of Trustee.
The Trustee undertakes to perform such duties and only such duties as are specifically set
forth in the related Trust Agreement. The Trustee, upon receipt of any and all resolutions,
certificates, statements, opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision of such Trust
Agreement, or that may be furnished to the Trustee at its request, shall examine them to
determine whether they conform to the requirements of such Trust Agreement.
No provision of any Trust Agreement shall be construed to relieve the Trustee of such
Trust from liability for its own negligent action, its own negligent failure to act or its own
misconduct; provided, however, that:
(a)
The duties and obligations of the Trustee shall be determined solely by the
express provisions of the related Trust Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in the related Trust
Agreement, and no implied covenants or obligations shall be read into the related Trust
Agreement against the Trustee;
(b)
The Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c)
The Trustee shall not be personally liable with respect to any action taken or
suffered or omitted to be taken by it in good faith in accordance with the direction of Ginnie Mae
as to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under a Trust Agreement.
(d)
The Trustee with respect to any Trust shall not be personally liable with respect to
any action taken or suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of a Series evidencing Percentage Interests aggregating not less than 25% of
each Class of Securities in such Series as to the enforcement by the Trustee of the Ginnie Mae
Guaranty.
The Information Agent shall not be deemed to be the agent of the Trustee, but rather the
agent of Ginnie Mae. The Trustee shall not be liable for any loss, liability or damage to any
Trust attributable to the acts or omissions of the Information Agent.
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Section 5.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 5.01, with respect to any Series:
(a)
The Trustee may request (at its sole expense, except as otherwise provided herein)
and rely conclusively upon and shall be protected in acting or refraining from acting upon any
resolution, officers’ certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper,
Transfer Affidavit, communication or document prima facie in proper form and believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b)
The Trustee may consult with counsel, and any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c)
The Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by the related Trust Agreement or to institute, conduct or defend any litigation
thereunder or in relation thereto at the request, order or direction of Ginnie Mae or any of the
Holders of such Series, pursuant to the provisions of the Trust Agreement, unless (i) such
directing party has offered to the Trustee reasonable security or indemnity against the costs,
expenses (including the fees and disbursements of Trustee’s counsel), and liabilities that may be
incurred by the Trustee with respect thereto or (ii) the need for or desirability of such institution,
conduct or defense results from the negligence of the Trustee;
(d)
The Trustee shall not be personally liable for any action taken or suffered or
omitted to be taken by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by a Trust Agreement;
(e)
The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper, communications or document, unless requested in
writing so to do by Ginnie Mae or the Holders of a Series evidencing Percentage Interests
aggregating not less than 50% of all Securities in such Series; provided, however, that the
reasonable expense of such investigation shall be paid by the party requesting the investigation,
and the Trustee may require reasonable indemnity against the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation as a condition to proceeding;
(f)
The Trustee may execute any of the trusts or powers under any Trust Agreement
or perform any duties thereunder either directly or by or through agents or attorneys;
(g)
The Trustee may rely conclusively on all calculations and other information
provided to it by Ginnie Mae, the Information Agent or any other agent of Ginnie Mae;
(h)
The Trustee shall not be obligated to post a bond or other form of surety in
connection with its service or status as Trustee under a Trust Agreement; and
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(i)
The Trustee, in its capacity as Trustee or, following the termination of the Trust,
as owner of any Deposited Ginnie Mae Construction Loan Certificate issued prior to December
31, 2002, shall obtain from each purchaser from it of each Deposited Ginnie Mae Construction
Loan Certificate, a written agreement pursuant to which each such purchaser agrees to the
material terms of the applicable Waiver Agreement and agrees not to transfer the Deposited
Ginnie Mae Construction Loan Certificate to any subsequent purchaser that has not executed a
written agreement substantially similar in form and substance to the agreement executed by such
purchaser.
Section 5.03. Trustee Not Liable for Securities.
The Trustee makes no representations as to the validity or sufficiency of any Trust
Agreement or of any Securities (except that each Trust Agreement has been duly executed and is
binding on the Trustee, the Certificated Securities of each Series shall be duly and validly issued,
authorized, authenticated and delivered by the Trustee and the Book-Entry Securities and
Uncertificated Securities of each Series shall be duly and validly issued, authorized and delivered
by the Trustee) or of any Trust Asset or any document related to any of the foregoing.
The Trustee shall have no responsibility or accountability with respect to the sufficiency
or adequacy of the following: (a) the Trust Assets and Ginnie Mae Guaranty to generate funds
necessary to make required payments on the Securities or (b) any Offering Circular or other
securities filings or reports required to be filed by any federal, state or local securities regulatory
authority, including but not limited to the United States Securities and Exchange Commission.
Section 5.04. Trustee May Own Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities, and may transact banking or trust business with Ginnie Mae, any Sponsor, the BookEntry Depository, any Trust Asset Depository, any Beneficial Owner, any other Trustee or any
Tax Administrator with the same rights it would have if it were not Trustee.
Section 5.05. Payment of Trustee’s Fees and Expenses.
With respect to the Distribution Date in each month, the Trustee shall be paid
compensation for all services rendered by it in the execution of the trusts created by the Trust
Agreement and in the exercise and performance of any of its powers and duties under the Trust
Agreement (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) in an amount equal to the Trustee Fee.
Section 5.06. Eligibility Requirements for Trustee.
The Trustee under any Trust Agreement must have been approved in writing by Ginnie
Mae to serve as Trustee under such Trust Agreement and at all times (a) must be organized and
doing business under the laws of the state of its incorporation or the United States of America,
(b) must be authorized under such laws to exercise corporate trust powers, (c) must have (or
must be a member of a consolidated bank or financial holding company that has) a minimum
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combined capital and surplus that meets the requirements prescribed by Ginnie Mae from time to
time pursuant to written notice to the Trustee provided by Ginnie Mae, (d) must be a member
depository institution of the FRS, (e) must be an entity subject to supervision or examination by
federal or state authority and (f) unless otherwise approved by Ginnie Mae, must have a long
term unsecured debt obligation rating from Moody’s Investors, Inc. of at least Aa3 and a short
term debt or commercial paper rating from Standard & Poor’s Ratings Services, a division of the
McGraw Hill Companies, Inc. of at least A-1. In addition, neither the Trustee nor any officer or
professional working on the subject matter of the Trust may be currently suspended or debarred
by any governmental agency, nor may such Persons have been convicted of, or found liable in a
civil action for, fraud, forgery, bribery, falsification or destruction of records, making false
statements or any other offense indicating a lack of business integrity that seriously and directly
could affect the responsibility of the Trustee, or such officer or professional.
If the Trustee publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of the Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time
the Trustee ceases to be eligible in accordance with the provisions of this Section, the Trustee
shall notify Ginnie Mae in writing immediately and, if Ginnie Mae requests, shall resign
immediately in the manner and with the effect specified in Section 5.07 hereof.
Section 5.07. Resignation and Removal of the Trustee.
The Trustee may resign as Trustee of any Trust at any time and be discharged from the
trusts created under the related Trust Agreement by giving written notice thereof to Ginnie Mae
and upon appointment of a successor trustee pursuant to Section 5.08. Upon receiving such
notice of resignation, Ginnie Mae may appoint a successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 90 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee acceptable to Ginnie Mae.
Ginnie Mae may remove the Trustee for cause at any time. For the purposes of this
Section “cause” shall mean one of the following:
(a)
The Trustee’s ceasing to be eligible in accordance with the provisions of Section
5.06 hereof and failing to resign after written request therefor by Ginnie Mae or its agent;
(b)
The Trustee’s inability to take any actions required under a Trust Agreement;
(c)
The Trustee’s failure to observe or perform any of its covenants set forth in the
related Trust Agreement;
(d)
A court or regulatory authority having jurisdiction in the premises, including
without limitation the FDIC and any similar state authority, entering a decree or order for relief
in respect of the Trustee in an involuntary case under any bankruptcy, insolvency, receivership,
conservatorship or other similar law or regulation, state or federal, now or hereafter in effect, or
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appointing a receiver, conservator, assignee, trustee, custodian, sequestrator or other similar
official for the Trustee or for all or any substantial part of its property, or order the winding up or
liquidation of its affairs;
(e)
The Trustee’s commencing a voluntary case under any applicable bankruptcy,
insolvency, receivership, conservatorship or other similar law or regulation, state or federal, now
or hereafter in effect, or consenting to or acquiescing in the entry of an order for relief in an
involuntary case under any such law, or consenting to or acquiescing in the appointment of or
taking of possession by a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for the Trustee or for all or any substantial part of its
property, or making a general assignment for the benefit of creditors, or the Trustee’s generally
failing to pay its debts as they become due;
(f)
The discovery that any Location-Based Tax, other tax or other charge levied or
threatened to be levied against a Trust on account of the situs of the Trustee could be avoided by
the appointment of a successor trustee, to the extent that Ginnie Mae determines that such tax or
other change may not be adequately covered by the Trustee; or
(g)
The removal for cause of the Trustee as the trustee of any trust that has issued
securities guaranteed by Ginnie Mae.
Any resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 5.08 hereof but in no event shall
become effective until a successor has been appointed and has accepted the duties of the Trustee.
Any liability of the Trustee under a Trust Agreement arising prior to such termination shall
survive such termination.
To the extent that a successor trustee is entitled to receive reasonable compensation in
excess of compensation payable to the Trustee under the related Trust Agreement, the Trustee
shall indemnify Ginnie Mae and the Trust for the amount of such excess and shall provide such
security for such indemnity as Ginnie Mae may require.
Section 5.08. Successor Trustee.
Any successor trustee appointed to serve as Trustee of a Trust as provided in Section 5.07
hereof shall execute, acknowledge and deliver to Ginnie Mae and its predecessor trustee an
instrument accepting such appointment under the related Trust Agreement, and thereupon the
resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under the Trust Agreement, with the same
effect as if originally named as trustee therein. The predecessor trustee shall immediately deliver
to the successor trustee all documents and statements held by it under the applicable Trust
Agreement, and the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations. The predecessor trustee
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shall perform the duties and obligations imposed on it in this Section irrespective of any stay
arising from, any injunction or other process issued pursuant to, and any restriction or limitation
imposed by any bankruptcy, insolvency, receivership, conservatorship or other similar law or
regulation, state or federal, now or hereafter in effect, including without limitation 11 U.S.C.
§§ 105, 362 and 18 U.S.C. §§ 1821, 1823, each as amended from time to time. In the event the
predecessor trustee fails to perform the duties and obligations imposed on it in this Section,
Ginnie Mae may take any action it deems necessary or advisable to cause the performance of
such duties and obligations.
No successor trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor trustee is eligible under the provisions of Section 5.06
hereof.
Upon acceptance of appointment by a successor trustee as provided in this Section, the
successor trustee shall mail notice of the succession of such trustee hereunder to all Holders at
their addresses as shown in the Register.
Section 5.09. Appointment of Co-Trustee.
The Trustee shall be permitted to appoint a Person that either meets the eligibility
requirements to act as a Trustee hereunder or otherwise has been approved in writing by Ginnie
Mae to act as co-trustee with respect to the Trust. Any such co-trustee may perform any of the
duties and obligations of the Trustee hereunder, provided, however, that any such appointment of
any co-trustee shall not relieve the Trustee of any of its obligations and duties hereunder. The
Trustee shall continue to remain liable for the performance of all such duties and obligations
hereunder (including the obligation to indemnify Ginnie Mae pursuant to Section 5.11, 5.12,
5.13), irrespective of the appointment of any co-trustee to perform such duties or obligations on
behalf of the Trustee.
Section 5.10. Merger or Consolidation of Trustee.
Any corporation into which a Trustee may be merged or converted or with which it may
be consolidated or any corporation resulting from any merger, conversion or consolidation to
which such Trustee may be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of such Trustee, shall be the successor of such Trustee under the related
Trust Agreement without the execution or filing of any paper or any further act on the part of any
of the parties to the Trust Agreement, provided such corporation is eligible under the provisions
of Section 5.06 hereof.
Section 5.11. Indemnification of HUD and Ginnie Mae.
The Trustee for each Trust shall indemnify and hold harmless HUD and Ginnie Mae
(including each official, officer, employee and agent of HUD and Ginnie Mae) from and against
any and all losses, claims, demands, liabilities, or expenses (including, without limitation, all
attorneys’ fees and related charges and expenses) resulting, directly or indirectly, from any
Trustee default or other failure to perform under the related Trust Agreement. Without limiting
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the foregoing, Ginnie Mae’s right to indemnification hereunder shall include the right to
reimbursement of any and all amounts paid by Ginnie Mae to any Holder of such Series as a
result of any failure of the Trustee properly to calculate the amount of any required distribution
to any such Holder or to cause the proper distributions to be made to any such Holder, together
with interest thereon at a rate equal to the yield on three-month Treasury securities.
Section 5.12. Voting of the Underlying Certificates.
In the event that a vote of the holders of Underlying Certificates, Underlying SMBS
Securities or Underlying Callable Securities is required pursuant to the trust agreement
governing any Underlying Trust, Underlying SMBS Trust or Underlying Callable Trust, the
Trustee shall vote in respect of the Underlying Certificate or Underlying Callable Securities in a
manner that, in its sole judgment, is consistent with the best interests of the holders of such
Underlying Certificate, Underlying SMBS Security or Underlying Callable Security.
Section 5.13. Performance Reviews by Ginnie Mae.
At its sole discretion, and from time to time, Ginnie Mae shall have the right to undertake
a full performance review of the Trustee and any subcontractors retained by the Trustee. Any
such review may involve the on site inspection of the Trustee’s (or any subcontractor’s) facilities
and the review of any books, records or documents of the Trustee (or any subcontractor) which
relate to the performance by the Trustee (or any subcontractor) of its duties hereunder. In
connection with any such review and inspection, the Trustee agrees to make available to Ginnie
Mae appropriate officers of the Trustee (or any subcontractor) and to otherwise cooperate with
such an undertaking by Ginnie Mae.
ARTICLE VI
TERMINATION
Section 6.01. Termination by the Trustee.
On any Distribution Date on which the aggregate of the Class Principal Balances of the
Securities in a particular Series, after giving effect to distributions otherwise to be made on that
date, is less than 1% of the aggregate of the Original Class Principal Balances, the Trustee may,
but shall not be obligated to, effect a termination of the related Trust and retirement of the related
Securities by purchasing (or causing the sale to one or more third parties of) all of the Trust
Assets remaining in the Trust and depositing into the Book-Entry Depository Account the
Termination Price therefor.
On any Distribution Date, upon the Trustee’s determination, based upon an Opinion of
Counsel, that the REMIC status of any Trust REMIC has been lost or that a substantial risk exists
that such status will be lost for the then current taxable year, the Trustee shall effect a
termination of the Trust, or if applicable, such Trust REMIC and any related Trust REMICs and
shall retire the related Securities in the manner described above.
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The Trustee promptly shall mail notice of any termination to be caused by its purchase of
the assets of the Trust or one or more Trust REMICs to Holders not earlier than the fifteenth day
and not later than the twentieth day of the month preceding the month of the final distribution.
The notice shall specify (a) the final Distribution Date (which shall be the next Distribution
Date) upon which the Holders of Certificated Securities may surrender their Securities to the
Trustee for payment of the final distribution and cancellation, (b) the office of the Registrar at
which Holders may surrender their Certificated Securities, (c) the amount of any final payment
and (d) that the Record Date otherwise applicable to that Distribution Date is not applicable
because final distributions will be made only upon presentation and surrender of the Certificated
Securities at the office or agency of the Registrar specified in the notice. The Trustee shall give
this notice to Ginnie Mae at the time the notice is given to Holders, and shall deposit the
Termination Price into the Book-Entry Depository Account no later than 10:00 a.m. Eastern time
on the final Distribution Date.
Upon presentation and surrender of the Certificated Securities, pursuant to such a notice,
the Trustee shall, to the extent of available funds, cause to be distributed on the final Distribution
Date to Holders of any Class of Securities, in proportion to their respective Percentage Interests,
an amount equal to the applicable Class Principal Balance, if any, together with any accrued and
unpaid interest thereon at the applicable Interest Rate.
The following additional requirements shall be met in the event of any termination of the
Trust or any Trust REMIC pursuant to this Section 6.01:
(a)
within 90 days prior to the final Distribution Date, the Trustee, on behalf of each
related Trust REMIC, shall adopt a plan of complete liquidation meeting the requirements of a
qualified liquidation under the REMIC Provisions (which plan the Trustee may adopt by
attaching to each Trust REMIC’s final federal income tax return a statement specifying the first
day of the 90-day liquidation period);
(b)
upon making final payment of principal and interest on the related Securities (and
the related Pooling REMIC Subaccounts, if any) and depositing any unclaimed funds otherwise
distributable to the Holders of such Securities in the Termination Account (established pursuant
to Section 6.03) on the final Distribution Date, the Trustee shall distribute or credit, or cause to
be distributed or credited, to the Holders of the related Residual Securities, all cash on hand
relating to the applicable Trust REMIC (other than cash retained to meet claims), and each
related Trust REMIC shall terminate at that time; and
(c)
in no event may the final payment on the related Securities or the related Pooling
REMIC Subaccounts, if any, be made after the 90th day from the date on which the plan of
complete liquidation is adopted. A payment into the Termination Account with respect to any
Security pursuant to Section 6.03 hereof shall be deemed a final payment on, or final distribution
with respect to, such Security for the purposes of this clause.
The Holder of a Residual Security issued by the Trust, by its acceptance of such Security,
authorizes and is deemed to take whatever action may be necessary to adopt a plan of complete
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liquidation of the related Trust REMIC upon the written request of the Trustee, and this
authorization shall bind all successor Holders of the Residual Security.
Section 6.02. Termination of Agreement.
The respective obligations and responsibilities of the Sponsor and the Trustee created by
the Trust Agreement (other than the obligation of the Trustee to make certain payments to
Holders after the final Distribution Date and the obligation of the Trustee to send certain notices
as set forth herein) shall terminate upon (a) the payment of all principal and accrued interest on
the Securities and Pooling REMIC Subaccounts, if any, and all other amounts due and owing by
the Trustee under such Trust Agreement and (b) the last action required to be taken by the
Trustee on the final Distribution Date pursuant to this Article VI following the earlier of (i) the
purchase by the Trustee of all Trust Assets remaining in the Trust pursuant to Section 6.01
hereof at a price equal to the Termination Price, (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Trust Asset remaining in the Trust and (iii) the 36th
Distribution Date following the month during which the last maturing Mortgage Loan in the
related REMIC matures; provided, however, that in no event shall the Trust created hereby
continue beyond the expiration of 21 years less one day from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of
St. James’s, living on the date hereof.
Section 6.03. Termination Account.
If all of the Holders do not surrender their Securities for final payment and cancellation
on or before the final Distribution Date, the Trustee, on the final Distribution Date, shall
withdraw all funds remaining in the Trust Accounts and shall credit those remaining funds to the
Holders who did not surrender their Securities by depositing such funds in a Termination
Account for the benefit of such Holders, and the Trustee shall give a second written notice to the
remaining Holders to surrender their Securities for cancellation and receive the final distribution
with respect thereto. If within one year after the sending of the second notice all the Securities
shall not have been surrendered for cancellation, the Trustee shall take appropriate steps, at the
direction of Ginnie Mae, if Ginnie Mae chooses to provide direction, or may appoint an agent to
take appropriate steps, to contact the remaining Holders concerning surrender of their Securities,
and the cost thereof shall be paid out of the funds on deposit in the Termination Account. The
Trustee shall not invest or owe interest on funds in the Termination Account. The Trustee shall
maintain the Termination Account for five years, subject to applicable laws of escheatment, after
which time the assets shall be transferred to Ginnie Mae.
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ARTICLE VII
REMIC TAX PROVISIONS
Section 7.01. REMIC Administration.
Each Holder of a Residual Interest in a Trust REMIC hereby designates the Tax
Administrator, as its agent, to act as the Tax Matters Person of such Trust REMIC and to
perform certain tax administration functions of such Trust REMIC as set forth in this Section.
(a)
With respect to each Trust, the related Trustee shall elect (on behalf of each Trust
REMIC to be created) on Form 1066 to have each Asset Pool treated as a REMIC for the taxable
year ending on the last day of the calendar year in which the Securities are issued as well as on
any corresponding state tax or information return necessary to have such Asset Pool treated as a
REMIC or comparable pass-through entity under state law. Pursuant to such election or
elections, (i) in the case of a Single REMIC Series, (x) if a single Trust REMIC is established,
the Trustee shall designate the Class R Securities as the Residual Interest and shall designate the
other REMIC Securities as the Regular Interests, or (y) if side-by-side Trust REMICs are
established, the Trustee shall designate each Class of Class R Securities corresponding to a Trust
REMIC (or the interest in each Trust REMIC represented by the Class RR Securities) as the
Residual Interest in such Trust REMIC, and shall designate the other REMIC Securities as
Regular Interests in the related Trust REMIC, and (ii) in the case of a Double REMIC Series, (x)
the Trustee shall designate either the related Class of Class RP Securities corresponding to a
Pooling REMIC or the interest in the related Pooling REMIC represented by the Class RR
Securities (as the case may be) as the Residual Interest in the related Pooling REMIC and shall
designate the related Pooling REMIC Subaccounts as the Regular Interests in the related Pooling
REMIC, and (y) the Trustee shall designate either the Class RI Securities corresponding to an
Issuing REMIC or the interest in such Issuing REMIC represented by the Class RR Securities (as
the case may be) as the Residual Interest in such Issuing REMIC and shall designate the other
related REMIC Securities (excluding the Class RP Securities, if any) as the Regular Interests in
the related Issuing REMIC. The “latest possible maturity date” of the Regular Interests within
the meaning of Treasury regulations Section 1.860G-1(a)(4) will be the 36th Distribution Date
following the month during which the last maturing Mortgage Loan in the related REMIC
matures.
(b)
With respect to each Trust, the Closing Date is hereby designated as the Startup
Day of each related Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c)
With respect to each Trust, the Tax Administrator shall pay in a timely manner:
(i)
the amount of any federal, state and local taxes imposed on the Trust or a
related Trust REMIC or Asset Pool out of amounts in any of the Trust Accounts (except
for Location-Based Taxes attributable to the Tax Administrator, which shall be paid by
the Tax Administrator out of its own funds); provided, however, that the Tax
Administrator may decide, provided it has received the written permission of Ginnie
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Mae, to pay or deposit such tax but subsequently to contest such tax, or, if permitted by
law, to refrain from paying such tax pending the outcome of the contest of such tax, and
(ii)
out of its own funds, any and all tax related expenses (not including taxes)
of the Trust and each related Trust REMIC or Asset Pool, including but not limited to any
professional fees or expenses related to audits or any administrative or judicial
proceedings with respect to each such Trust REMIC that involves the Internal Revenue
Service or state or local tax authorities; provided, however, that the Tax Administrator
may pay out of amounts in any of the Trust Accounts the reasonable cost of contesting a
tax imposed on the Trust or a related Trust REMIC or Asset Pool, provided that the Tax
Administrator has received Ginnie Mae’s written permission to engage in the contest.
(d)
With respect to each Trust, the Tax Administrator shall maintain all books,
records, and supporting documents of the related Trust REMICs that are necessary to comply
with any and all aspects of the Tax Administrator’s duties under the Trust Agreement and other
Closing Documents.
(e)
For each Trust, the related Tax Administrator shall timely prepare, sign (or, as
appropriate, submit to the Trustee for signature) and file all of the federal, state, and local tax and
information returns (other than Forms 1099 or applicable successor forms) of the Trust and each
related Trust REMIC or Asset Pool. The expenses of preparing and filing such returns shall be
borne by the Tax Administrator without any right to reimbursement by the Trustee or from
amounts on deposit in the Trust Accounts.
(f)
The Tax Administrator for each Trust shall assist the Trustee in performing in a
timely manner all reporting and other tax compliance duties that are the responsibility of the
Trust and each related Trust REMIC or Asset Pool under the REMIC Provisions or state or local
tax law. Upon the Tax Administrator’s request, the Trustee shall provide the Tax Administrator
with a list of Holders of record and any other information reasonably necessary to the Tax
Administrator in the performance of its duties. Among its other duties, the Tax Administrator,
acting as agent of each Trust REMIC, shall compile and deliver (or provide, by mail, telephone
or publication as may be permitted by applicable Treasury Regulations) (i) to the Treasury or
other governmental authority such information as is necessary for the application of any tax
relating to the transfer of an Ownership Interest to any Disqualified Organization and (ii) to the
Trustee such information or reports as are required under the REMIC Provisions to be provided
to the Treasury or other governmental authority and to the holders of the Regular Interests and
Residual Interests in the Trust REMIC. As a specific exception to the foregoing, however, the
Trustee shall produce (based on income information prepared by the Tax Administrator) and
distribute any Forms 1099 (or applicable successor forms) that are required to be distributed
under the Code and Treasury regulations.
(g)
With respect to each Trust, the Tax Administrator, the Trustee and the Holders of
Residual Interests shall take any action or cause the related Trust REMIC to take any action
necessary to create or maintain the status of such Trust REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such status.
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(h)
With respect to each Trust, neither the Tax Administrator, the Trustee nor the
Holder of a Residual Interest shall take any action or fail to take any action, or cause any Trust
REMIC to take any action or fail to take any action that, if taken or not taken, could endanger the
status of any such Trust REMIC as a REMIC unless the Trustee and the Tax Administrator have
received the consent of Ginnie Mae and an Opinion of Counsel (at the expense of the party
seeking to take or to fail to take such action) to the effect that the contemplated action or failure
to act will not endanger such status.
(i)
With respect to each Trust, the Trustee, with the assistance of the Tax
Administrator, shall perform in a timely manner the reporting duties that are the responsibility of
the Trust and each related Trust REMIC under the REMIC provisions as described in Section
7.01(f) hereof and all applicable withholding of U.S. federal income tax as required by the Code
with respect to Holders and holders of Pooling REMIC Interests that are Non-U.S. Persons. The
Trustee shall evaluate applicable exemptions from such withholding, and shall file or cause to be
filed with the Internal Revenue Service all applicable returns related to such withholding.
(j)
As a condition to the payment of any principal of or interest on any Security or
beneficial interest therein without the imposition of withholding tax, the Trustee or the Tax
Administrator may require the previous delivery of a properly completed and signed
certification, including an Internal Revenue Service Form W-9 (or applicable successor form) in
the case of a Person that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code or the appropriate Internal Revenue Service Form W-8 (or applicable successor
form) and any applicable attachments in the case of a Person that is not a “United States person”
within the meaning of Section 7701(a)(30) of the Code.
(k)
With respect to each Trust and each Trust REMIC, unless otherwise provided in
the related Trust Agreement, the fiscal year of such Trust and each Trust REMIC shall run from
January 1 (or from the Closing Date, in the case of the first fiscal year) through December 31.
(l)
The Trustee shall reimburse the Trust for any Location-Based Taxes.
Section 7.02. Resignation and Removal of the Tax Administrator.
(a)
Unless otherwise provided in the Trust Agreement, the Trustee shall act as Tax
Administrator. The Trustee may subcontract with another Person acceptable to Ginnie Mae to
undertake these obligations. In addition, Ginnie Mae reserves the right to require the Trustee to
subcontract with a Person designated by Ginnie Mae to perform these duties. Execution of a
subcontract shall not relieve the Trustee, however, of any responsibility for the tax
administration of the Trust or of liability for breaches of the obligations of the Tax Administrator
under the Trust Agreement.
(b)
If the Tax Administrator for a Trust is unable for any reason to fulfill its duties as
Tax Administrator of the related Trust REMIC or REMICs, the Tax Administrator shall
immediately notify Ginnie Mae and the Trustee. Upon notification, the Trustee may appoint
another Person acceptable to Ginnie Mae to act as Tax Administrator for the related Trust
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REMIC or REMICs or Ginnie Mae may direct the Trustee to appoint another Person to act in
such capacity.
(c)
Except as provided in a Trust Agreement, Ginnie Mae has reserved the right to
remove the Tax Administrator for cause at any time. For the purposes of this Section “cause”
shall mean one of the following:
(i)
The Tax Administrator’s inability to take any actions required under a
Trust Agreement;
(ii)
Failure on the part of the Tax Administrator to observe or perform any
other of its covenants set forth in the related Trust Agreement;
(iii) A court having jurisdiction entering a decree or order for relief in respect
of the Tax Administrator in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, sequestrator (or other similar official) of the Tax
Administrator or for all or substantially all of its property, or order the winding up or
liquidation of its affairs; or
(iv)
The Tax Administrator commencing a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or consenting to
the entry of an order for relief in an involuntary case under any such law, or consenting to
the appointment of or taking of possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Tax Administrator or for any
substantial part of its property, or making any general assignment for the benefit of
creditors, or the Tax Administrator failing generally to pay its debts as they become due.
(d)
Any resignation or removal of the Tax Administrator and appointment of a
successor Tax Administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Tax Administrator as provided in
Section 7.02(e) below. Any liability of the Tax Administrator under a Trust Agreement arising
prior to such termination shall survive such termination.
(e)
The successor Tax Administrator appointed to serve as Tax Administrator of a
Trust REMIC as provided in this Section shall execute, acknowledge and deliver to Ginnie Mae
and its predecessor Tax Administrator a written acceptance of such appointment under the
related Trust Agreement, and thereupon the resignation or removal of the predecessor Tax
Administrator shall become effective and such successor Tax Administrator, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under such Trust Agreement, with the same effect as if originally
named as Tax Administrator therein.
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Section 7.03. Prohibited Activities.
Except as otherwise provided in a Trust Agreement, neither the Tax Administrator, the
Holders of Residual Interests, nor the Trustee shall engage in, nor shall the Trustee permit, any
of the following transactions or activities unless it has received (a) a Special Tax Opinion and (b)
a Special Tax Consent from each of the Holders of the Residual Securities in the related Series
(unless the Special Tax Opinion specially provides that no REMIC-level or Trust-level tax will
result from the transaction or activity in question):
(i)
the sale or other disposition of, or substitution for, any of the Trust Assets
except pursuant to (A) the bankruptcy or insolvency of any related Trust REMIC, (B) the
termination of any related Trust REMIC pursuant to Section 6.01, or (C) a substitution or
purchase in accordance with Section 4.03;
(ii)
the acquisition of any Ginnie Mae Certificates or Eligible Certificates for
the Trust after the Closing Date except (A) during the three-month period beginning on
the Closing Date pursuant to a fixed price contract in effect on the Closing Date that has
been reviewed and approved by tax counsel acceptable to Ginnie Mae or (B) a
substitution in accordance with Section 4.03;
(iii) the sale or other disposition of any investment in any Trust REMIC
Account at a gain;
(iv)
the acceptance of any contribution to the Trust except the following cash
contributions: (A) a contribution received during the three month period beginning on the
Closing Date, (B) a contribution to facilitate an optional termination that is made within
the 90-day period beginning on the date on which a plan of complete liquidation is
adopted pursuant to Section 6.01 and (C) any other contribution approved by Ginnie Mae
and the Tax Administrator after consultation with tax counsel;
(v)
if the Trust Assets related to a Security consist of any Ginnie Mae
Construction Loan Certificates, any modification of the terms of any Trust MBS; or
(vi)
Agreement.
any other transaction or activity that is not contemplated by the Trust
Any party causing the Trust to engage in any of the activities prohibited in this Section shall be
liable for the payment of any tax imposed on the Trust or any related Trust REMIC or Asset Pool
pursuant to Code section 860F(a)(1) or 860G(d) as a result of the Trust engaging in such
activities.
Section 7.04. Double REMIC Series.
(a)
With respect to a Double REMIC Series, amounts withdrawn from any Pooling
Portion of the Book-Entry Depository Account in accordance with Section 3.04(d) (other than
amounts distributable in respect of a Pooling REMIC Residual Interest) shall be deemed to be
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distributed on the Pooling REMIC Subaccounts of the related Pooling REMIC and withdrawn
from those Pooling REMIC Subaccounts to be transferred to the related Issuing Portion of the
Book-Entry Depository Account or the related Issuing Portion of the Collection Account, as
applicable, and any amounts payable on MX or Modifiable Securities shall be deemed
withdrawn from such Issuing Portions and transferred to the applicable MX or Modifiable
Securities accounts as payments on the REMIC Securities underlying such MX or Modifiable
Securities.
(b)
With respect to each Double REMIC Series, the Trust Agreement will set forth
the terms of each Pooling REMIC Regular Interest and each Pooling REMIC Residual Interest.
Unless otherwise specified in the Trust Agreement (i) the Pooling REMIC Regular Interests will
be designated as “regular interests” in the related Pooling REMIC for purposes of the REMIC
provisions but will not constitute securities or certificates of interest in the Trust and (ii) the
Trustee will be the legal owner of the Pooling REMIC Regular Interests, which may not be
transferred to any person other than a successor trustee appointed pursuant to Section 5.08 hereof
unless the party desiring to transfer such Interests obtains a Special Tax Opinion.
Section 7.05. Final Residual Proceeds.
(a)
Single REMIC Series. The Holders of the Residual Securities of each Trust
REMIC shall be entitled to receive, on the Distribution Date after payment in full of the Regular
Interests in such Trust REMIC, any amounts due Ginnie Mae and any administrative expenses
associated with such REMIC, their pro rata shares of any amounts remaining in such Trust
REMIC.
(b)
Double REMIC Series. The Holders of the Residual Securities of one or more
Pooling REMICs and an Issuing REMIC shall be entitled to receive, on each Distribution Date
after payment of any amounts due to the Regular Interests in such Issuing REMIC and the related
Pooling REMICs as of such Distribution Date, any amounts due Ginnie Mae and any
administrative expenses associated with such REMICs and the related Trust, their pro rata shares
of any amounts remaining in such Pooling REMICs and the Issuing REMIC. The Holders of the
Class RP Securities of a Pooling REMIC shall be entitled to receive, on each Distribution Date
after payment of any amounts due to the Regular Interests in the related Pooling REMIC as of
such Distribution Date, any amounts due Ginnie Mae and any administrative expenses associated
with the related Pooling REMIC and the related Trust, their pro rata shares of any amounts
remaining in such Pooling REMIC. The Holders of the Class RI Securities of an Issuing REMIC
shall be entitled to receive, on each Distribution Date after payment of any amounts due to the
Regular Interests in the Issuing REMIC as of such Distribution Date, any amounts due Ginnie
Mae and any administrative expenses associated with such REMIC and the related Trust, their
pro rata shares of any amounts remaining in such Issuing REMIC.
Section 7.06. Tax Treatment of Certain Notional Classes.
(a)
Single REMIC Series. With respect to any Notional Class whose initial Class
Notional Balance is less than 100% of the initial principal balance of the Trust Assets (excluding
for all calculations in this paragraph any assets related to the Trustee Fee) underlying such
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Notional Class, for purposes of complying with the REMIC Provisions, the interest accrued on
such Notional Class can be expressed as a specified portion of the interest payments on such
Trust Assets equal to the excess, if any, of (1) all the interest accrued for such Accrual Period on
such Trust Assets, over (2) interest accrued for such Accrual Period on such Trust Assets at a
rate equal to (x) the Certificate Rate for such Trust Assets, minus (y) the product of (i) the
Interest Rate for such Notional Class, and (ii) a fraction, the numerator of which is the initial
Class Notional Balance of such Notional Class and the denominator of which is the initial
principal balance of such Trust Assets.
(b)
Double REMIC Series. With respect to any Notional Class whose initial Class
Notional Balance is less than 100% of the initial principal balance of the Pooling REMIC
Subaccount corresponding to such Notional Class, for purposes of complying with the REMIC
Provisions, the interest accrued on such Notional Class can be expressed as a specified portion of
the interest payments on such Pooling REMIC Subaccount equal to the excess, if any, of (1) all
the interest accrued for such Accrual Period on such Pooling REMIC Subaccount, over (2)
interest accrued for such Accrual Period on such Pooling REMIC Subaccount at a rate equal to
(x) the Interest Rate for such Pooling REMIC Subaccount, minus (y) the product of (i) the
Interest Rate for such Notional Class, and (ii) a fraction, the numerator of which is the initial
Class Notional Balance of such Notional Class and the denominator of which is the initial
principal balance of such Pooling REMIC Subaccount. With respect to a Notional Class whose
initial Class Notional Balance consists of portions that correspond to two or more Pooling
REMIC Subaccounts, the interest accrued on such Notional Class can be described as the sum of
the amounts determined by applying the preceding sentence separately to each such Pooling
REMIC Subaccount and the portion of the initial Class Notional Balance of such Notional Class
corresponding to each such Pooling REMIC Subaccount.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Limitation of Rights of Holders.
The death or incapacity of any person having an interest, beneficial or otherwise, in a
Security shall not operate to terminate any Trust Agreement or any Trust REMIC, nor entitle the
legal representatives or heirs of such person or any Holder for such person to claim an
accounting, take any action or bring any proceeding in any court for a partition or winding up of
any Trust REMIC, nor otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 8.02. Control by Holders.
Except as otherwise provided in the Trust Agreement, no Holder in any Series shall have
any right to vote or in any manner otherwise control the administration, operation and
management of any Trust REMIC or the Securities backing such Trust REMIC, or the
obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of
the Securities, be construed so as to constitute the Holders from time to time as partners or
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members of an association; nor shall a Holder 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. Notwithstanding the foregoing, the Holders of 25% of the Voting Rights shall have the
right to require the related Trustee to enforce on their behalf the Ginnie Mae Guaranty in
accordance with Section 3.06(b) hereof.
Section 8.03. Amendment of Trust Agreements.
(a)
Any Trust Agreement may, with the consent of Ginnie Mae, and shall, at the
request of Ginnie Mae, be amended from time to time by the Trustee without the consent of the
Sponsor or any Holder or Holders (i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or to make any other
provisions with respect to this Trust Agreement, provided that any such amendment shall not
effect a change in principal priority schedules, interest rates, the Termination Price, Distribution
Dates, Record Dates, Accounting Dates, terms of optional terminations, the Ginnie Mae
Guaranty or other payment terms established by the Trust Agreement for the Series or otherwise
adversely affect in any material respect the interests of any Holder and shall not impose an
additional obligation on any party who has not consented to such amendment; (ii) to permit the
Trustee to take any necessary or helpful action to maintain the qualification of any Trust REMIC
as a REMIC under the Code or to avoid the imposition of any state or federal tax on any Trust or
related Trust REMIC or Asset Pool; or (iii) except as provided in Section 8.03(b) below, to make
any other changes that Ginnie Mae requests. Notwithstanding any other provision herein, the
related Trust Agreement may not be amended if the effect of such amendment is to disqualify the
treatment of any Trust REMIC as a REMIC under the Code or to result in the imposition of any
state or federal tax on any Trust or related Trust REMIC or Asset Pool.
(b)
Notwithstanding any other provision herein, without the consent of each Holder
who may be adversely affected, the related Trust Agreement may not be amended to impair or
affect the right of such Holder to receive payment of principal and interest (including any
payment under the Ginnie Mae Guaranty in respect thereof) or to institute suit for the
enforcement of any such payment, all as herein provided, on or after the respective due date of
such payment.
(c)
Solely for purposes of this Section, if the principal amount of a Residual Class has
been reduced to zero prior to the principal amounts of all the other Classes of Securities of the
related Series having been reduced to zero, each Security of such Residual Class shall be deemed
to have an aggregate outstanding principal amount of $1,000.00.
Section 8.04. Persons Deemed Owners.
The Trustee, Ginnie Mae and the Registrar, or any agent of the Trustee, Ginnie Mae or
the Registrar, may deem and treat the Holder of the Securities (which, with respect to the BookEntry Securities, will be the Book-Entry Depository (or its nominee)), as the absolute owner of
such Securities for the purpose of receiving distributions of principal or interest and for all other
purposes, and neither the Trustee, Ginnie Mae nor the Registrar, nor any agent of the Trustee,
Ginnie Mae or the Registrar, shall be affected by any notice to the contrary. All such
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distributions so made to the Holder or upon such Holder’s order shall be valid and, to the extent
of the sum or sums so distributed, effectual to satisfy and discharge the duty for monies
distributable by the Trustee upon such Securities.
The Holder of a Book-Entry Security is not the Beneficial Owner of such Security. The
rights of a Beneficial Owner of a Book-Entry Security with respect to the Trustee, Ginnie Mae
and the Registrar may be exercised only through the Holder, which is the Book-Entry Depository
or its nominee. The Trustee, Ginnie Mae and the Registrar will have no obligation to a
Beneficial Owner of a Book-Entry Security because such obligations are satisfied directly to the
Book-Entry Depository.
Section 8.05. Third-Party Beneficiary; Ginnie Mae Subrogation.
The Trustee and the Sponsor hereby acknowledge and agree that Ginnie Mae is a thirdparty beneficiary of each Trust Agreement and entitled to enforce all obligations of any party to a
Trust Agreement. Ginnie Mae shall be subrogated to all the rights, interests, remedies, powers
and privileges of the Holders in respect of any Ginnie Mae Guaranty Payments, to the extent of
such payments.
Section 8.06. Preemption.
Pursuant to Section 306(g)(3)(E)(iv) of the National Housing Act (12 U.S.C.
§ 1721(g)(3)(E)(iv)), Ginnie Mae may exercise any right or power granted to it in or recognized
under the Trust Agreement irrespective of any stay arising from, any injunction or other process
issued pursuant to, and any restriction or limitation imposed by any bankruptcy, insolvency,
receivership, conservatorship or other similar law or regulation, state or federal, now or hereafter
in effect, including without limitation 11 U.S.C. §§ 105, 362 and 18 U.S.C. §§ 1821, 1823, each
as amended from time to time.
Section 8.07. Governing Law.
THE TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA. INSOFAR
AS THERE MAY BE NO APPLICABLE LAW OF THE UNITED STATES, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING REGARD TO CONFLICT OF
LAWS PRINCIPLES OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW) SHALL BE DEEMED REFLECTIVE OF THE LAWS OF
THE UNITED STATES OF AMERICA, INSOFAR AS TO DO SO WOULD NOT
FRUSTRATE THE PURPOSES OF ANY PROVISION OF THE TRUST AGREEMENT OR
THE TRANSACTIONS GOVERNED THEREBY.
Section 8.08. Successors.
The Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Trustee, the Sponsor, or Ginnie Mae, including any successor by operation of
law.
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Section 8.09. Headings.
The Article and Section headings are for convenience only and shall not affect the
construction of the Trust Agreement.
Section 8.10. Notice and Demand.
Any notice, demand or other communication which by any provision of a Trust
Agreement is required or permitted to be given or served to or upon any Holder may be given or
served in writing by deposit thereof, postage prepaid, in the United States mail addressed to such
Holder as such Holder’s name and address may appear in the records of the Trustee or the
Registrar. Such notice, demand or other communication to or upon a Holder shall be deemed to
have been sufficiently given or made, for all purposes, upon mailing or transmission.
RECEIPT AND ACCEPTANCE OF A SECURITY BY OR ON BEHALF OF A
HOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND
ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH SECURITY OF ALL THE
TERMS AND PROVISIONS OF THE RELATED TRUST AGREEMENT.
All demands, notices, approvals and communications under the Trust Agreement shall be
in writing and shall be deemed to have been duly given if personally delivered (including
overnight receipted delivery by a recognized courier service) to or mailed by registered mail,
postage prepaid, or transmitted by any standard form of written telecommunications and
confirmed by a similar mailed writing, to the address provided in the Trust Agreement. The
address for Ginnie Mae shall be as follows:
Government National Mortgage Association
Potomac Center
550 12th Street, SW
Third Floor
Washington, DC 20024
With copies to:
Department of Housing and Urban Development
Office of General Counsel
Room 9254
451 Seventh Street, S.W.
Washington, D.C. 20410-9000
Attention: Assistant General Counsel Ginnie Mae/Finance
and the Legal Advisor as of the date of the demand, notice,
approval or communication.
The addresses of all other parties are set forth in the related Sponsor Agreement.
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Section 8.11. Severability of Provisions.
Any part, provision, representation or warranty of any Trust Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions, representations or
warranties of that Trust Agreement. Any part, provision, representation or warranty of a Trust
Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions, representations or
warranties of that Trust Agreement, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties to each Trust Agreement waive any
provision of law which prohibits or renders void or unenforceable any provision of that Trust
Agreement.
Section 8.12. Counterparts.
The Trust Agreement may be executed in two or more counterparts, each of which when
so executed and delivered shall be an original, and all of which together shall constitute one and
the same instrument. The Trust Agreement shall inure to the benefit of and be binding upon the
parties thereto and their respective successors and assigns.
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Exhibit 1
FORM OF TRANSFER AFFIDAVIT
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GINNIE MAE REMIC TRUST 20__
Re:
Government National Mortgage Association
Ginnie Mae REMIC Trust 20__ (the “Trust”),
Guaranteed [Multifamily] REMIC Pass-Through Securities
Class [R] [RR] [RP and/or RI] Securities
Under penalties of perjury, I, [Representative of Purchaser] , declare that, to the best
of my knowledge and belief, the following representations and warranties are true, correct, and
complete.
1.
That I am [Title of Representative] of [Purchaser] , a _______________ (the
“Purchaser”), whose mailing address is ___________ and whose taxpayer identification number
is ______________, and on behalf of which I have the authority to make this affidavit. If the
Purchaser is disregarded as an entity separate from its owner under Treasury Regulation
Section 301.7701-3(b)(1)(ii) or is characterized as a partnership for United States federal income
tax purposes, each owner of the Purchaser is identified on Schedule 1. [__________ has been
chosen as Nominee for the Purchaser (the “Nominee”). The mailing address for the Nominee is
_____________ and its taxpayer identification number is _______.]
2.
That the Purchaser is acquiring a Class [R] [RR] [RP and/or RI] Security
representing a residual interest in one or more Trust REMICs for whose designated assets a real
estate mortgage investment conduit (a “REMIC”) election or elections are to be made under
Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”).
3.
That the Purchaser understands that no residual interest may be transferred, sold,
or otherwise assigned without the express written consent of the Trustee and that as a condition
to that consent, any transferee (including the initial purchaser) of such an interest must provide
the Trustee with a properly completed transfer affidavit, substantially in the form of this
affidavit.
4.
That the Purchaser agrees that the Trustee can execute all instruments of transfer
to assist the Purchaser’s transfer, sale, or other form of assignment (“Transfer”) of the residual
interest and do all other things necessary in connection with such Transfer.
5.
That the Purchaser is (i) a citizen or resident of the United States, (ii) a
corporation that is organized under the laws of the United States, any state thereof or the District
of Columbia, including an entity treated as a corporation for federal income tax purposes, (iii) a
Exhibit 1
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partnership, including any entity treated as a partnership for federal income tax purposes (other
than a partnership that is not treated as a United States person under any applicable Treasury
regulation) organized under the laws of the United States, any state thereof or the District of
Columbia, none of the interests of which are owned, directly or indirectly through one or more
pass-through entities, by any person that is not a U.S. Person within the meaning of this
paragraph, (iv) an estate that is subject to United States federal income taxation regardless of the
source of its income, (v) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States persons have the
authority to control all substantial decisions of the trust (or to the extent provided in the
applicable Treasury regulations, certain trusts in existence on August 20, 1996 that are eligible to
be treated as United States persons), or (vi) a foreign person who would be subject to United
States income taxation on a net basis on income derived from the Class [R] [RR] [RP and/or RI]
Securities ((i)-(vi), a “U.S. Person”).
6
Any purchaser that is characterized as a partnership for U.S. federal income tax
purposes certifies that, during all periods in which it holds the Class [R] [RR] [RP] and/or [RI]
Securities, all income from such Securities will be allocated to partners that are U.S. Persons.
7.
That the Purchaser is not (i) the United States, (ii) any state or political
subdivision thereof, (iii) a foreign government, (iv) an international organization, (v) an agency
or instrumentality of any of the foregoing, (vi) a tax-exempt organization (other than a
cooperative described in Section 521 of the Code) that is exempt from federal income tax unless
that organization is subject to tax under the unrelated business taxable income provisions of the
Code, (vii) an organization described in Section 1381(a)(2)(C) of the Code, (viii) an electing
large partnership within the meaning of Section 775 of the Code, (ix) a foreign permanent
establishment or fixed base (within the meaning of an applicable income tax treaty) of a U.S.
Person, or (x) any other entity identified as a disqualified organization by the REMIC Provisions
(a “Disqualified Organization”). A corporation will not be treated as an instrumentality of the
United States or any state or political subdivision thereof for purposes of this paragraph if all of
its activities are subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by that governmental unit.
8.
That the Purchaser is not acquiring the residual interest as a nominee, trustee or
agent for any Person that is not a U.S. Person or that is a Disqualified Organization.
9.
That the Purchaser is not (a) a “benefit plan investor” that is described in or
subject to the Department of Labor regulations set forth in 29 C.F.R. § 2510.3-101 (the “Plan
Asset Regulations”), (b) a plan or arrangement that is subject to Code Section 4975, (c) a
“governmental plan” as defined in Section 3(32) of ERISA, (d) any plan or arrangement that is
subject to any federal, state, or local law that is substantially similar to the Plan Asset
Regulations, Code Section 4975, or ERISA Section 3(32), (e) a person acting on behalf of or
utilizing the assets of any of the foregoing, or (f) an insurance company that cannot represent and
warrant that all funds used by it in acquiring the Security were held by it in its general account,
that it will hold the Security in its general account, and that it reasonably believes that its general
account and the Security do not and will not constitute “plan assets” for purposes of ERISA and
the Plan Asset Regulations (any of the foregoing, a “Plan Investor”).
Exhibit 1
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10.
That the Purchaser agrees that it shall immediately notify the Trustee if it
becomes aware that any representation and warranty made herein will or has become false.
11.
That the Purchaser agrees not to Transfer or cause the Transfer of its residual
interest to any Person if (i) such Person does not supply the Trustee with a properly completed
Transfer Affidavit or (ii) the Purchaser has actual knowledge that the Transfer Affidavit supplied
by such Person is false.
12.
That the Purchaser historically has paid its debts as they have come due and
intends to pay its debts as they come due in the future and the Purchaser intends to pay the taxes
associated with holding the Class [R] [RR] [RP and/or RI] Securities as such taxes become due.
That, if the Purchaser is characterized as a partnership for federal income tax purposes, based on
the Purchaser’s knowledge or due inquiry, each person or entity that holds an interest (directly or
indirectly) through a pass-through entity in such partnership intends to pay its share of any tax
liabilities due in respect of such partnership’s ownership of the Class [R] [RR] [RP and/or RI]
Securities.
13.
That the Purchaser understands that it may incur tax liabilities with respect to the
Class [R] [RR] [RP and/or RI] Securities in excess of cash flows generated by the Class [R] [RR]
[RP and/or RI] Securities. That, if the Purchaser is characterized as a partnership for federal
income tax purposes, based on the Purchaser’s knowledge or due inquiry, each partner is the
Purchaser to whom income from the Class [R] [RR] [RP and/or RI] Securities is allocated
understands that it may incur tax liabilities with respect to such Securities in excess of cash flows
generated by such Securities.
14.
That the Purchaser will not Transfer the Class [R] [RR] [RP and/or RI] Securities
to any person or entity from which the Purchaser has not received an affidavit substantially in the
form of this affidavit and as to which the Purchaser has actual knowledge or reason to know that
the requirements set forth in paragraph 5, 6, 7, 11 or 12 hereof are not satisfied.
15.
That the Purchaser has provided financial statements or other financial
information requested by the Transferor in connection with the Transfer of the Class [R]
[RR][RP] and /or RI] Securities to permit the Transferor to assess the financial capability of the
Purchaser to pay such tax.
16.
That the Purchaser agrees to such amendments of the Trust Agreement as may be
required to further effectuate the restrictions on Transfer of the Class [R] [RR] [RP and/or RI]
Securities to a Disqualified Organization, an agent thereof, a Plan Investor or a person that does
not satisfy the requirements of paragraphs 5, 6, 7, 11 and 12 hereof.
17.
That the Purchaser agrees to be bound by, and understands that its rights as owner
of a residual interest are expressly subject to, all terms of the related Trust Agreement applicable
to owners of residual interests, including the special transfer restrictions relating to residual
interests in Section 2.04 of the Standard Trust Provisions.
Exhibit 1
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18.
That the Purchaser understands that the Transfer of the Class [R] [RR] [RP and/or
RI] Securities to a U.S. Person will be disregarded for all federal income tax purposes if a
significant purpose of the Transfer is to impede the assessment or collection of any taxes
associated with the Securities within the meaning of Treasury regulation Section 1.860E-1(c)(1).
Exhibit 1
11-4-49
46
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed
on its behalf, by its duly authorized [Title of Representative] this ___ day of ____________,
____.
[Purchaser]
By:
______________________________
Its:
______________________________
Personally appeared before me [Representative of Purchaser], known or proved to me to
be the same person who executed the foregoing instrument and to be [Title of Representative] of
the Purchaser, and acknowledged to me that [he/she] executed the same as [his/her] free act and
deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me
this ___ day of _________, ____.
_______________________________
Notary Public
My commission expires: _________________________.
Exhibit 1
11-4-50
47
[Schedule 1]
[NOTE TO TRUST COUNSEL: IDENTIFY ALL OWNERS OF THE PURCHASER IF
REQUIRED BY PARAGRAPH 1 OF THE TRANSFER AFFIDAVIT OR INDICATE NOT
APPLICABLE]
[The following are all of the Purchaser’s [members] [partners] (each, a “Tax Owner”):
Name: [
]
Taxpayer ID: [
]
Address: [
]]
Exhibit 1
11-4-51
48
[N/A]Exhibit 2
FORM OF REGULAR SECURITY
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITY
GINNIE MAE REMIC TRUST 20___-__ (THE “TRUST”)
CLASS ____
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE
RELATED TRUST AGREEMENT. [THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF PREPAYMENT
PENALTIES ON THIS SECURITY.] THE FULL FAITH AND CREDIT OF THE
UNITED STATES OF AMERICA IS PLEDGED TO THE PAYMENT OF ALL
AMOUNTS THAT MAY BE REQUIRED TO BE PAID UNDER THIS GUARANTY.
THIS SECURITY REPRESENTS A REGULAR INTEREST IN A REMIC FOR
FEDERAL INCOME TAX PURPOSES.
CLASS:
C
USIP NO.:
CLOSING DATE:
INITIAL FORM OF ISSUANCE:
MONTH OF FINAL DISTRIBUTION
DATE:
INTEREST RATE: ________%
[INITIAL INTEREST RATE: ___%*]
[INTEREST RATE FORMULA: LIBOR
+ ___%]
TRUSTEE:
[VARIABLE INTEREST RATE]
SPONSOR:
ORIGINAL CLASS [PRINCIPAL]
[NOTIONAL] BALANCE OF ALL
CLASS _____ SECURITIES AS OF
THE CLOSING DATE:
$______________
TAX ADMINISTRATOR:
[DENOMINATION: $____________]
NO. ____
[PERCENTAGE INTEREST: _____%]
[*For each Floating Rate Class, the initial Interest Rate will be in effect during the first
[________] Accrual Period[s]; the Interest Rate will adjust monthly thereafter, subject to a
minimum rate of ___ % and a maximum rate of ___%.]
Exhibit 2
11-4-52
49
This Security evidences a percentage interest in the distributions allocable to the Class indicated
on the face hereof issued by the Trust, the assets of which consist primarily of the Trust Assets.
THIS CERTIFIES THAT
_______________________
is the registered owner of the Percentage Interest evidenced by this Security (either explicitly
specified above or obtained by dividing the denomination of this Security by the aggregate of the
denominations of all Securities of this Class) in any monthly distributions allocable to this Class
of Securities. The Securities were issued by the Trust created pursuant to a trust agreement (the
“Trust Agreement”) between the Sponsor and the Trustee, not in its individual capacity but
solely as Trustee. To the extent not defined herein, the capitalized terms used herein have the
meanings set forth in the Trust Agreement and Glossary in the Ginnie Mae Multiclass Securities
Guide in effect on the Closing Date. This Security is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which the Holder of this Security, by virtue
of the acceptance hereof, assents and by which such Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution will be made on [the [
]
day of each month or, if such day is not a Business Day, the first Business Day thereafter] (each,
a “Distribution Date”), commencing in the month following the month of the Closing Date, to
the Person in whose name this Security is registered at the close of business on the last Business
Day of the month immediately preceding the month of such distribution (the related “Record
Date”), in an amount equal to the product of the Percentage Interest evidenced by this Security
and the distributions, if any, allocable to this Class pursuant to the Trust Agreement.
Notwithstanding the foregoing, distributions on Certificated Securities of this Class will be made
on the Business Day following the Distribution Date.
This Security is limited in right of payment to certain collections in respect of the Trust
Assets and the Ginnie Mae Guaranty, all as more specifically set forth in the Trust Agreement.
This Security does not represent an obligation of the Sponsor or the Trustee or either of their
affiliates.
Distributions on Book-Entry Securities shall be made on each Distribution Date by wire
transfer of immediately available funds to the Book-Entry Depository. Distributions on any
Certificated Security shall be made on the Business Day following each Distribution Date (a) by
check mailed to the Holder thereof at its address reflected in the Register as of the related Record
Date or (b) upon receipt by the Trustee from a Holder of a written request and wire instructions
at least five Business Days prior to the related Record Date, by wire transfer of immediately
available funds on the Business Day following the related Distribution Date and each subsequent
Distribution Date to the account of such Holder, if such Holder holds Securities having an initial
aggregate principal balance of at least $5,000,000. Notwithstanding the foregoing, the final
distribution in retirement of any Security will be made only upon presentation and surrender of
the certificate at the Corporate Trust Office.
Exhibit 2
11-4-53
50
Subject to the limitations set forth in the Trust Agreement, the Trust Agreement may be
amended for any purpose, without the consent of any Holder or Holders. However, the Trust
Agreement may not be amended without the consent of the affected Holders if the effect of such
amendment is to alter the timing or amount of any required distribution of principal or interest
(including distributions made pursuant to the Ginnie Mae Guaranty) to any Holder, or the right
of any Holder to institute suit for the enforcement of any such payment. Any such consent by
the Holder of this Security shall be conclusive and binding on such Holder and upon all future
holders of this Security and of any Security issued upon the transfer hereof or in exchange
herefor or in lieu hereof regardless of whether notation of such consent is made upon this
Security.
As provided in the Trust Agreement and subject to certain limitations therein set forth,
the Holder of this Security may register the transfer of this Security in the Register by
surrendering this Security at the Corporate Trust Office of the Trustee. The surrendered Security
must be duly endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing. Upon such surrender, one or
more new Securities of like tenor of authorized denominations will be issued to the designated
transferee or transferees.
The Securities of this Class initially are issuable in the form specified on the cover hereto
and in denominations specified in the Trust Agreement. As provided in the Trust Agreement and
subject to certain limitations therein set forth (a) Beneficial Owners of Book-Entry Securities
may request Certificated Securities for a fee of $25,000 per physical certificate, (b) Holders of
Certificated Securities may, upon request, surrender their Certificated Securities and become the
Beneficial Owner of a Book-Entry Security of like tenor and denomination and (c) all Securities
are exchangeable for new Securities of like tenor of authorized denominations, as requested by
the Holder surrendering the same. There will be a service charge for any such registration of
transfer or exchange, and the Trustee may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Tax Administrator, Ginnie Mae and the Trustee and any agent of the Tax
Administrator, Ginnie Mae or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, and neither the Tax Administrator, Ginnie Mae
nor the Trustee, nor any such agent shall be affected by notice to the contrary.
The obligations created by the Trust Agreement and the Trust shall terminate upon the
payment to Holders of all amounts held by or on behalf of the Trustee and required to be paid to
them pursuant to the Trust Agreement. The Trust Agreement permits, but does not require, the
Trustee to purchase all assets held by the Trust, at a price determined as provided in the Trust
Agreement, when the aggregate of the Class Principal Balances of the Securities is less than 1%
of the aggregate of the Original Class Principal Balances of the Securities. Any exercise by the
Trustee of such option would effect early retirement of the Securities. In addition, the Trust (or
one or more related Trust REMICs) may be terminated by the Trustee (and the related Securities
retired) under certain circumstances in which the REMIC status of any Trust REMIC is
threatened.
Exhibit 2
11-4-54
51
Unless the certificate of authentication herein has been executed by the Trustee, by
manual signature, this Security shall not represent entitlement to any benefit under the Trust
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Security to be duly executed
under its official seal.
[TRUSTEE], AS TRUSTEE
By:______________________________
AUTHORIZED SIGNATORY
Attest:__________________________
AUTHORIZED SIGNATORY
Dated: __________________________
Exhibit 2
11-4-55
52
CERTIFICATE OF AUTHENTICATION
This is one of the Class _____ Securities referred to in the within-mentioned Trust
Agreement.
__________________________________, AS TRUSTEE
By:_______________________________
AUTHORIZED SIGNATORY
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee.)
the beneficial interest evidenced by the within Security and hereby authorizes the transfer of
registration of such interest to the above named assignee on the Register of the Trust.
I (We) further direct the Trustee to issue a new Security of like denomination or
Percentage Interest and like tenor, to the above named assignee and to deliver such Security to
the following address:
______________________________________________________________________
Dated:
____________________________
Signature by or on behalf of assignor
Dated:
____________________________
Signature by or on behalf of assignor
Exhibit 2
11-4-56
53
DISTRIBUTION INSTRUCTIONS
The assignee should complete the following for purposes of future distributions:
Distributions shall be made by wire transfer or otherwise in immediately available funds, if
permitted hereunder, to
______________________________________________________________________________
for the account of ______________________________________________________________
account number ________________________________________________________________
or, if mailed by check, to _______________________________________________________
Applicable statements should be mailed to __________________________________________
_____________________________________________________________________________
This information is provided by ___________________________________________________,
the assignee named above, or _____________________________________________________,
as its agent.
Exhibit 2
11-4-57
54
Exhibit 3
FORM OF CLASS R SECURITY
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITY
GINNIE MAE REMIC TRUST 20___-__ (THE “TRUST”)
CLASS R
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE
RELATED TRUST AGREEMENT. [THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF PREPAYMENT
PENALTIES ON THIS SECURITY.] THE FULL FAITH AND CREDIT OF THE
UNITED STATES OF AMERICA IS PLEDGED TO THE PAYMENT OF ALL
AMOUNTS THAT MAY BE REQUIRED TO BE PAID UNDER THIS GUARANTY.
NO TRANSFER OF THIS SECURITY IS PERMITTED WITHOUT THE WRITTEN
CONSENT OF THE TRUSTEE. AS A CONDITION TO THAT CONSENT, ANY
TRANSFEREE MUST DELIVER TO THE TRUSTEE A TRANSFER AFFIDAVIT. THE
TRUSTEE SHALL NOT CONSENT TO ANY TRANSFER OF THIS SECURITY TO A
“DISQUALIFIED ORGANIZATION” (AS DEFINED IN SECTION 860E(e)(5) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED), WHICH GENERALLY
INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME
TAXATION (INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE
INCOME) ON INCOME FROM THIS SECURITY. IN ADDITION NO TRANSFER OF
LESS THAN ALL OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY SHALL BE CONSENTED TO BY THE TRUSTEE UNLESS THE
TRANSFERRED INTEREST CAN BE EXPRESSED AS A SINGLE CONSTANT
PERCENTAGE OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY.
THIS CLASS R SECURITY REPRESENTS A RESIDUAL INTEREST IN A REMIC
FOR FEDERAL INCOME TAX PURPOSES.
Exhibit 3
11-4-58
55
CLASS: R
CUSIP NO.:
CLOSING DATE:
INTEREST RATE: ________%
MONTH OF FINAL DISTRIBUTION
DATE:
[VARIABLE INTEREST RATE]
TRUSTEE:
ORIGINAL CLASS PRINCIPAL
BALANCE OF THE CLASS R
SECURITIES AS OF THE CLOSING
DATE: $_________________
SPONSOR:
[DENOMINATION: $____________]
TAX ADMINISTRATOR:
[PERCENTAGE INTEREST: _____%]
NO. ____
This Security evidences a percentage interest in the distributions allocable to the Class R
Securities issued by the Trust, the assets of which consist primarily of the Trust Assets.
THIS CERTIFIES THAT
_______________________________
is the registered owner of the Percentage Interest evidenced by this Security (either explicitly
specified above or obtained by dividing the denomination of this Security by the aggregate of the
denominations of all Securities of this Class) in any monthly distributions allocable to this Class
of Securities. The Securities were issued by the Trust created pursuant to a trust agreement (the
“Trust Agreement”) between the Sponsor and the Trustee, not in its individual capacity but
solely as Trustee. The capitalized terms used and not defined herein have the meanings set forth
in the Trust Agreement and Glossary in the Ginnie Mae Multiclass Securities Guide in effect on
the Closing Date. This Security is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the Holder of this Security, by virtue of its
acceptance hereof, assents and by which such Holder is bound.
The distribution date is the respective day of each month provided in Section 3.04(i) of
the Standard Trust Provisions for distributions to Holders of the Residual Interest (each, a
“Distribution Date”), commencing in the month following the month of the Closing Date.
Nevertheless, pursuant to the terms of the Trust Agreement, distributions will not be made on
this Security until the Business Day following each Distribution Date. Distributions will be
made to the Person in whose name this Security is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution (the related
“Record Date”), in an amount equal to the product of the Percentage Interest evidenced by this
Exhibit 3
11-4-59
56
Security and the distributions, if any, allocable to this Class of Securities pursuant to the Trust
Agreement.
This Security is limited in right of payment to certain collections in respect of the Trust
Assets and the Ginnie Mae Guaranty, all as more specifically set forth in the Trust Agreement.
This Security does not represent an obligation of the Sponsor or the Trustee or either of their
affiliates.
Distributions on this Security will be made by check mailed to the Holder at its address
reflected in the Register as of the related Record Date. Notwithstanding the foregoing, the final
distribution in retirement of this Security will be made only upon presentation and surrender of
this Security at the Corporate Trust Office.
Subject to the limitations set forth in the Trust Agreement, the Trust Agreement may be
amended for any purpose, without the consent of any Holder or Holders of the Securities.
However, the Trust Agreement may not be amended without the consent of the affected Holders
if the effect of such amendment is to alter the timing or amount of any required distribution of
principal or interest (including distributions made pursuant to the Ginnie Mae Guaranty) to any
Holder, or the right of any Holder to institute suit for the enforcement of any such payment. Any
such consent by the Holder of this Security shall be conclusive and binding on such Holder and
upon all future holders of this Security and of any Security issued upon the transfer hereof or in
exchange herefor or in lieu hereof regardless of whether notation of such consent is made upon
this Security.
As provided in the Trust Agreement and subject to certain limitations set forth therein,
the Holder of this Security may register the transfer of this Security in the Register by
surrendering this Security at the Corporate Trust Office of the Trustee. The surrendered Security
must be duly endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing. Upon such surrender, one or
more new Securities of like tenor of authorized denominations or Percentage Interests will be
issued to the designated transferee or transferees.
The Class R Securities are issuable as Certificated Securities without coupons in the
minimum denomination or Percentage Interest specified in the Trust Agreement. As provided in
the Trust Agreement and subject to certain limitations set forth therein, this Class R Security is
exchangeable for one or more new Securities of like tenor of authorized denomination, as
requested by the Holder surrendering the same. The Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with any
registration of transfer or exchange of this Security.
The Tax Administrator, Ginnie Mae and the Trustee and any agent of the Tax
Administrator, Ginnie Mae or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, and neither the Tax Administrator, Ginnie Mae
nor the Trustee, nor any such agent shall be affected by notice to the contrary.
Exhibit 3
11-4-60
57
An election will be made to treat the Asset Pool as a REMIC (the “Trust REMIC”) under
the Internal Revenue Code of 1986, as amended (the “Code”). Assuming that such election is
made properly and that certain qualification requirements concerning the Asset Pool and the
Securities are met, the Holder of this Class R Security will be treated for federal income tax
purposes as the beneficial owner of a “residual interest” in the Trust REMIC. Accordingly, the
Holder of this Class R Security will be taxed on its pro rata share of the Trust REMIC’s taxable
income or net loss. The requirement that the Holder of this Class R Security report its pro rata
share of such income or loss will continue until there are no Securities of any Class outstanding.
Pursuant to the Trust Agreement, the Tax Administrator, as agent of the Trust REMIC,
will provide the Holder of this Class R Security with information sufficient to enable such
Holder to prepare (i) its federal income tax and information returns and (ii) any reports required
by the Code regarding the Securities, except where such information is provided to each such
Holder by the Trustee pursuant to the Trust Agreement. As the Holder of the residual interest in
the Trust REMIC, the Holder of this Class R Security will have continuing administrative rights
and obligations with respect to such REMIC generally similar to those of a partner with respect
to its partnership. Such rights and obligations principally concern the Trust REMIC’s federal
income tax and information returns and the representation of the Trust REMIC in administrative
or judicial proceedings involving the Internal Revenue Service. The Tax Administrator,
however, will act on behalf of the Holder of this Class R Security as the representative of the
Trust REMIC for such proceedings. The federal income tax and information returns of the Trust
REMIC will be prepared by the Tax Administrator and signed and filed by the Trustee.
By accepting this Security, the Holder of this Security agrees to be bound by all of the
provisions of the Trust Agreement and, in particular, agrees that it shall (i) take any action
required by the Code or Treasury regulations thereunder in order to create or maintain the
REMIC status of the Trust REMIC and (ii) refrain from taking any action that could endanger
such status.
No transfer of this Security (or any beneficial interest therein) is permitted without the
written consent of the Trustee. As a condition to that consent, any Transferee (including the
initial purchaser) of this Security must provide the Trustee with a properly completed Transfer
Affidavit, substantially in the form of Exhibit 1 to the Standard Trust Provisions, in which the
proposed Transferee represents and warrants to the Trustee that it (i) is a Permitted Transferee
and (ii) is not a Plan Investor. Notwithstanding the fulfillment of that condition, the Trustee may
withhold its consent to a transfer, but only to the extent necessary to avoid a risk of (i)
disqualification of the Trust REMIC as a REMIC or (ii) the imposition of a tax upon the Trust
REMIC. In addition, the Trustee shall not give its consent to the transfer of less than all of a
Transferor’s Ownership Interest in this Security unless the transferred interest can be expressed
as a single constant percentage of the Transferor’s Ownership Interest in this Security. Any
attempted transfer in violation of the foregoing restrictions will be null and void and shall not be
recognized by the Trustee.
If a tax or a reporting cost is borne by any Trust REMIC as a result of the transfer of this
Class R Security, or any beneficial interest therein, in violation of the restrictions set forth herein
and in the Trust Agreement, the Trustee may pay such tax or reporting cost with amounts that
Exhibit 3
11-4-61
58
otherwise would have been paid to the transferee of this Class R Security, or beneficial interest
therein. In that event, neither the transferee nor the transferor shall have any right to seek
repayment of such amounts from the Trustee, Ginnie Mae, the Trust, the Tax Administrator, the
Sponsor or the Holders of the other Securities. The Tax Administrator shall make, or cause to be
made, available the information necessary for the application of Section 860E(e) of the Code.
The obligations created by the Trust Agreement and the Trust shall terminate upon the
payment to the Holders of the Securities of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Trust Agreement. The Trust Agreement permits, but
does not require, the Trustee to purchase all assets held by the Trust, at a price determined as
provided in the Trust Agreement, when the aggregate of the Class Principal Balances of the
Securities is less than 1% of the aggregate of the Original Class Principal Balances of such
Securities. Any exercise by the Trustee of such option would effect early retirement of the
Securities. In addition, the Trust (or the related Trust REMIC) may be terminated by the Trustee
(and the related Securities retired) under certain circumstances in which the REMIC status of the
related Trust REMIC is threatened.
Unless the certificate of authentication herein has been executed by the Trustee by
manual signature this Security shall not represent entitlement to any benefit under the Trust
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Security to be duly executed
under its official seal.
[TRUSTEE], AS TRUSTEE
By:______________________________
AUTHORIZED SIGNATORY
Attest:__________________________
AUTHORIZED SIGNATORY
Dated: __________________________
Exhibit 3
11-4-62
59
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Securities referred to in the within-mentioned Trust
Agreement.
__________________________________, AS TRUSTEE
By:_______________________________
Exhibit 3
11-4-63
60
AUTHORIZED SIGNATORYASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee.)
the beneficial interest evidenced by the within Security and hereby authorizes the transfer of
registration of such interest to the above named assignee on the Register of the Trust.
I (We) further direct the Trustee to issue a new Security of like Class denomination or
Percentage Interest and tenor, to the above named assignee and to deliver such Security to the
following address:
_______________________________________________________________________
Dated:
____________________________
Signature by or on behalf of assignor
Dated:
____________________________
Signature by or on behalf of assignor
Exhibit 3
11-4-64
61
DISTRIBUTION INSTRUCTIONS
The assignee should complete the following for purposes of future distributions:
Distributions shall be made by wire transfer or otherwise in immediately available funds, if
permitted hereunder, to
______________________________________________________________________________
for the account of ______________________________________________________________
account number ________________________________________________________________
or, if mailed by check, to _______________________________________________________
Applicable statements should be mailed to __________________________________________
_____________________________________________________________________________
This information is provided by ___________________________________________________,
the assignee named above, or _____________________________________________________,
as its agent.
Exhibit 3
11-4-65
62
Exhibit 4
FORM OF CLASS RR SECURITY
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITY
GINNIE MAE REMIC TRUST 20___-__ (THE “TRUST”)
CLASS RR
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE
RELATED TRUST AGREEMENT. [THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF PREPAYMENT
PENALTIES ON THIS SECURITY.] THE FULL FAITH AND CREDIT OF THE
UNITED STATES OF AMERICA IS PLEDGED TO THE PAYMENT OF ALL
AMOUNTS THAT MAY BE REQUIRED TO BE PAID UNDER THIS GUARANTY.
NO TRANSFER OF THIS SECURITY IS PERMITTED WITHOUT THE WRITTEN
CONSENT OF THE TRUSTEE. AS A CONDITION TO THAT CONSENT, ANY
TRANSFEREE MUST DELIVER TO THE TRUSTEE A TRANSFER AFFIDAVIT. THE
TRUSTEE SHALL NOT CONSENT TO ANY TRANSFER OF THIS SECURITY TO A
“DISQUALIFIED ORGANIZATION” (AS DEFINED IN SECTION 860E(e)(5) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED), WHICH GENERALLY
INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME
TAXATION (INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE
INCOME) ON INCOME FROM THIS SECURITY. IN ADDITION NO TRANSFER OF
LESS THAN ALL OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY SHALL BE CONSENTED TO BY THE TRUSTEE UNLESS THE
TRANSFERRED INTEREST CAN BE EXPRESSED AS A SINGLE CONSTANT
PERCENTAGE OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY.
THIS CLASS RR SECURITY REPRESENTS A RESIDUAL INTEREST IN EACH OF
[ ] REMICS FOR FEDERAL INCOME TAX PURPOSES.
Exhibit 4
11-4-66
63
CLASS: RR
CUSIP NO.:
CLOSING DATE:
INTEREST RATE: ________%
MONTH OF FINAL DISTRIBUTION
DATE:
[VARIABLE INTEREST RATE]
TRUSTEE:
ORIGINAL CLASS PRINCIPAL
BALANCE OF THE CLASS RR
SECURITIES AS OF THE CLOSING
DATE: $______________
SPONSOR:
[DENOMINATION: $____________]
NO. ____
[PERCENTAGE INTEREST: _____%]
TAX ADMINISTRATOR:
This Security evidences a percentage interest in the distributions allocable to the Class RR
Securities issued by the Trust, the assets of which consist primarily of the Trust Assets.
THIS CERTIFIES THAT
_____________________________________
is the registered owner of the Percentage Interest evidenced by this Security (either explicitly
specified above or obtained by dividing the denomination of this Security by the aggregate of the
denominations of all Securities of this Class) in any monthly distributions allocable to this Class
of Securities. The Securities were issued by the Trust created pursuant to a trust agreement (the
“Trust Agreement”) between the Sponsor and the Trustee, not in its individual capacity but
solely as Trustee. The capitalized terms used and not defined herein have the meanings set forth
in the Trust Agreement and Glossary in the Ginnie Mae Multiclass Securities Guide in effect on
the Closing Date. This Security is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the Holder of this Security, by virtue of its
acceptance hereof, assents and by which such Holder is bound.
The distribution date is the respective day of each month provided in Section 3.04(i) of
the Standard Trust Provisions for distributions to Holders of the Residual Interest (each, a
“Distribution Date”), commencing in the month following the month of the Closing Date.
Nevertheless, pursuant to the terms of the Trust Agreement, distributions will not be made on
this Security until the Business Day following each Distribution Date. Distributions will be
made to the Person in whose name this Security is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution (the related
“Record Date”), in an amount equal to the product of the Percentage Interest evidenced by this
Security and the distributions, if any, allocable to this Class of Securities pursuant to the Trust
Agreement.
Exhibit 4
11-4-67
64
This Security is limited in right of payment to certain collections in respect of the Trust
Assets and the Ginnie Mae Guaranty, all as more specifically set forth in the Trust Agreement.
This Security does not represent an obligation of the Sponsor or the Trustee or either of their
affiliates.
Distributions on this Security will be made by check mailed to the Holder at its address
reflected in the Register as of the related Record Date. Notwithstanding the foregoing, the final
distribution in retirement of this Security will be made only upon presentation and surrender of
this Security at the Corporate Trust Office.
Subject to the limitations set forth in the Trust Agreement, the Trust Agreement may be
amended for any purpose, without the consent of any Holder or Holders of the Securities.
However, the Trust Agreement may not be amended without the consent of the affected Holders
if the effect of such amendment is to alter the timing or amount of any required distribution of
principal or interest (including distributions made pursuant to the Ginnie Mae Guaranty) to any
Holder, or the right of any Holder to institute suit for the enforcement of any such payment. Any
such consent by the Holder of this Security shall be conclusive and binding on such Holder and
upon all future holders of this Security and of any Security issued upon the transfer hereof or in
exchange herefor or in lieu hereof regardless of whether notation of such consent is made upon
this Security.
As provided in the Trust Agreement and subject to certain limitations set forth therein,
the Holder of this Security may register the transfer of this Security in the Register by
surrendering this Security at the Corporate Trust Office of the Trustee. The surrendered Security
must be duly endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing. Upon such surrender, one or
more new Securities of like tenor of authorized denominations or Percentage Interests will be
issued to the designated transferee or transferees.
The Class RR Securities are issuable as Certificated Securities without coupons in the
minimum denomination or Percentage Interest specified in the Trust Agreement. As provided in
the Trust Agreement and subject to certain limitations set forth therein, this Class RR Security is
exchangeable for one or more new Securities of like tenor of authorized denomination, as
requested by the Holder surrendering the same. The Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with any
registration of transfer or exchange of this Class RR Security.
The Tax Administrator, Ginnie Mae and the Trustee and any agent of the Tax
Administrator, Ginnie Mae or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, and neither the Tax Administrator, Ginnie Mae
nor the Trustee, nor any such agent shall be affected by notice to the contrary.
Elections will be made to treat each Asset Pool as a REMIC (the “Pooling REMIC” and
the “Issuing REMIC,” and together the “Trust REMICs”) under the Internal Revenue Code of
1986, as amended (the “Code”). [Assuming that such elections are made properly and that
Exhibit 4
11-4-68
65
certain qualification requirements concerning the Asset Pools and the Securities are met, the
Holder of this Class RR Security will be treated for federal income tax purposes as the beneficial
owner of a “residual interest” in [each of][the] Pooling REMIC and the Issuing REMIC.
Accordingly, the Holder of this Class RR Security will be taxed on its pro rata share of each of
the Pooling REMIC’s [REMICs’] and the Issuing REMIC’s taxable income or net loss.] The
requirement that the Holder of this Class RR Security report its pro rata share of such income or
loss will continue until there are no Securities of any Class outstanding.
The registered Holder of a Class RR Security will be entitled to separate such Security
into its component parts. The Trustee shall, upon delivery to it of this Class RR Security and a
written request of the registered Holder thereof to separate such Security into its component
parts, issue to such registered Holder in exchange for such Class RR Security (i) a separately
transferable, certified and fully registered security substantially in the form of Exhibit 5 to the
Standard Trust Provisions (a “Class RP Security”) that will, from the date of its issuance,
represent the Holder’s Percentage Interest in the Residual Interest in the related Pooling REMIC
and (ii) a separately transferable, certified and fully registered security substantially in the form
of Exhibit 6 to the Standard Trust Provisions (a “Class RI Security”) that will, from the date of
its issuance, represent the Holder’s Percentage Interest in the Residual Interest in the related
Issuing REMIC. The Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with such exchange of this Class RR Security.
Pursuant to the Trust Agreement, the Tax Administrator, as agent of the Trust REMIC,
will provide the Holder of this Class RR Security with information sufficient to enable such
Holder to prepare (i) its federal income tax and information returns and (ii) any reports required
by the Code regarding the Securities, except where such information is provided to each such
Holder by the Trustee pursuant to the Trust Agreement. As the Holder of a residual interest in
each of the Trust REMICs, the Holder of this Class RR Security will have continuing
administrative rights and obligations with respect to each such REMIC generally similar to those
of a partner with respect to its partnership. Such rights and obligations principally concern the
Trust REMICs’ federal income tax and information returns and the representation of the Trust
REMICs in administrative or judicial proceedings involving the Internal Revenue Service. The
Tax Administrator, however, will act on behalf of the Holder of this Class RR Security as the
representative of the Trust REMICs for such proceedings. The federal income tax and
information returns of the Trust REMICs will be prepared by the Tax Administrator and signed
and filed by the Trustee.
[NOTE TO TRUST COUNSEL: IN THE CASE OF MULTIPLE POOLING REMICS OR
SIDE-BY-SIDE REMICS, REVISE AS REMIC STRUCTURE REQUIRES]
By accepting this Security, the Holder of this Security agrees to be bound by all of the
provisions of the Trust Agreement and, in particular, agrees that it shall (i) take any action
required by the Code or Treasury regulations thereunder in order to create or maintain the
REMIC status of each Trust REMIC and (ii) refrain from taking any action that could endanger
such status.
Exhibit 4
11-4-69
66
No transfer of this Security (or any beneficial interest therein) is permitted without the
written consent of the Trustee. As a condition to that consent, any Transferee (including the
initial purchaser) of this Security must provide the Trustee with a properly completed Transfer
Affidavit substantially in the form of Exhibit 1 to the Standard Trust Provisions, in which the
proposed Transferee represents and warrants to the Trustee that it (i) is a Permitted Transferee
and (ii) is not a Plan Investor. Notwithstanding the fulfillment of that condition, the Trustee may
withhold its consent to a transfer, but only to the extent necessary to avoid a risk of (i)
disqualification of any Trust REMIC as a REMIC or (ii) the imposition of a tax upon any Trust
REMIC. In addition, the Trustee shall not give its consent to the transfer of less than all of a
Transferor’s Ownership Interest in this Security unless the transferred interest can be expressed
as a single constant percentage of the Transferor’s Ownership Interest in this Security. Any
attempted transfer in violation of the foregoing restrictions will be null and void and shall not be
recognized by the Trustee.
If a tax or a reporting cost is borne by any Trust REMIC as a result of the transfer of this
Class RR Security, or any beneficial interest therein, in violation of the restrictions set forth
herein and in the Trust Agreement, the Trustee may pay such tax or reporting cost with amounts
that otherwise would have been paid to the transferee of this Class RR Security, or beneficial
interest therein. In that event, neither the transferee nor the transferor shall have any right to
seek repayment of such amounts from the Trustee, Ginnie Mae, the Trust, the Tax Administrator,
the Sponsor or the Holders of the other Securities. The Tax Administrator shall make, or cause
to be made, available the information necessary for the application of Section 860E(e) of the
Code.
The obligations created by the Trust Agreement and the Trust shall terminate upon the
payment to the Holders of the Securities of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Trust Agreement. The Trust Agreement permits, but
does not require, the Trustee to purchase all assets held by the Trust, at a price determined as
provided in the Trust Agreement, when the aggregate of the Class Principal Balances of the
Securities is less than 1% of the aggregate of the Original Class Principal Balances of such
Securities. Any exercise by the Trustee of such option would effect early retirement of the
Securities. In addition, the Trust (or one or more related Trust REMICs) may be terminated by
the Trustee (and the related Securities retired) under certain circumstances in which the REMIC
status of any Trust REMIC is threatened.
Unless the certificate of authentication herein has been executed by the Trustee by
manual signature this Security shall not represent entitlement to any benefit under the Trust
Agreement or be valid for any purpose.
Exhibit 4
11-4-70
67
IN WITNESS WHEREOF, the Trustee has caused this Security to be duly executed
under its official seal.
[TRUSTEE], AS TRUSTEE
By:______________________________
AUTHORIZED SIGNATORY
Attest:__________________________
AUTHORIZED SIGNATORY
Dated: __________________________
Exhibit 4
11-4-71
68
CERTIFICATE OF AUTHENTICATION
This is one of the Class RR Securities referred to in the within-mentioned Trust
Agreement.
__________________________________, AS TRUSTEE
By:_______________________________
AUTHORIZED SIGNATORYASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee.)
the beneficial interest evidenced by the within Security, and hereby authorizes the transfer of
registration of such interest to the above named assignee on the Register of the Trust.
I (We) further direct the Trustee to issue a new Security of like Class denomination or
Percentage Interest and tenor, to the above named assignee and to deliver such Security to the
following address:
_______________________________________________________________________
Dated:
____________________________
Signature by or on behalf of assignor
Dated:
____________________________
Signature by or on behalf of assignor
Exhibit 4
11-4-72
69
DISTRIBUTION INSTRUCTIONS
The assignee should complete the following for purposes of future distributions:
Distributions shall be made by wire transfer or otherwise in immediately available funds, if
permitted hereunder, to
______________________________________________________________________________
for the account of ______________________________________________________________
account number ________________________________________________________________
or, if mailed by check, to _______________________________________________________
Applicable statements should be mailed to __________________________________________
_____________________________________________________________________________
This information is provided by ___________________________________________________,
the assignee named above, or _____________________________________________________,
as its agent.
Exhibit 4
11-4-73
70
Exhibit 5
FORM OF CLASS RP SECURITY
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITY
GINNIE MAE REMIC TRUST 20___-__ (THE “TRUST”)
CLASS RP
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE
RELATED TRUST AGREEMENT. [THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF PREPAYMENT
PENALTIES ON THIS SECURITY.] THE FULL FAITH AND CREDIT OF THE
UNITED STATES OF AMERICA IS PLEDGED TO THE PAYMENT OF ALL
AMOUNTS THAT MAY BE REQUIRED TO BE PAID UNDER THIS GUARANTY.
NO TRANSFER OF THIS SECURITY IS PERMITTED WITHOUT THE WRITTEN
CONSENT OF THE TRUSTEE. AS A CONDITION TO THAT CONSENT, ANY
TRANSFEREE MUST DELIVER TO THE TRUSTEE A TRANSFER AFFIDAVIT. THE
TRUSTEE SHALL NOT CONSENT TO ANY TRANSFER OF THIS SECURITY TO A
“DISQUALIFIED ORGANIZATION” (AS DEFINED IN SECTION 860E(e)(5) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED), WHICH GENERALLY
INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME
TAXATION (INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE
INCOME) ON INCOME FROM THIS SECURITY. IN ADDITION NO TRANSFER OF
LESS THAN ALL OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY SHALL BE CONSENTED TO BY THE TRUSTEE UNLESS THE
TRANSFERRED INTEREST CAN BE EXPRESSED AS A SINGLE CONSTANT
PERCENTAGE OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY.
THIS CLASS RP SECURITY REPRESENTS A RESIDUAL INTEREST IN A REMIC
FOR FEDERAL INCOME TAX PURPOSES.
Exhibit 5
11-4-74
71
CLASS: RP
CUSIP NO.:
CLOSING DATE:
INTEREST RATE: ________%
MONTH OF FINAL DISTRIBUTION
DATE:
[VARIABLE INTEREST RATE]
TRUSTEE:
ORIGINAL CLASS PRINCIPAL
BALANCE OF ALL CLASS RP
SECURITIES AS OF THE CLOSING
DATE: $______________
SPONSOR:
[DENOMINATION: $____________]
TAX ADMINISTRATOR:
[PERCENTAGE INTEREST: _____%]
NO. ____
This Security evidences a percentage interest in the distributions allocable to the Pooling REMIC
Residual Interest of the Trust, the assets of which consist primarily of the Trust Assets.
THIS CERTIFIES THAT
_____________________________________
is the registered owner of the Percentage Interest evidenced by this Security (either explicitly
specified above or obtained by dividing the denomination of this Security by the aggregate of the
denominations of all Securities of this Class) in any monthly distributions allocable to this Class
of Securities. The Securities were issued by the Trust created pursuant to a trust agreement (the
“Trust Agreement”) between the Sponsor and the Trustee, not in its individual capacity but
solely as Trustee. The capitalized terms used and not defined herein have the meanings set forth
in the Trust Agreement and Glossary in the Ginnie Mae Multiclass Securities Guide in effect on
the Closing Date. This Security is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the Holder of this Security, by virtue of its
acceptance hereof, assents and by which such Holder is bound.
The distribution date is the respective day of each month provided in Section 3.04(i) of
the Standard Trust Provisions for distributions to Holders of the Residual Interest (each, a
“Distribution Date”), commencing in the month following the month of the Closing Date.
Nevertheless, pursuant to the terms of the Trust Agreement, distributions will not be made on
this Security until the Business Day following each Distribution Date. Distributions will be
made to the Person in whose name this Security is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution (the related
“Record Date”), in an amount equal to the product of the Percentage Interest evidenced by this
Security and the distributions, if any, allocable to this Class of Securities pursuant to the Trust
Agreement.
Exhibit 5
11-4-75
72
This Security is limited in right of payment to certain collections in respect of the Trust
Assets and the Ginnie Mae Guaranty, all as more specifically set forth in the Trust Agreement.
This Security does not represent an obligation of the Sponsor or the Trustee or either of their
affiliates.
Distributions on this Security will be made by check mailed to the Holder at its address
reflected in the Register as of the related Record Date. Notwithstanding the foregoing, the final
distribution in retirement of this Security will be made only upon presentation and surrender of
this Security at the Corporate Trust Office.
Subject to the limitations set forth in the Trust Agreement, the Trust Agreement may be
amended for any purpose, without the consent of any Holder or Holders of the Securities.
However, the Trust Agreement may not be amended without the consent of the affected Holders
if the effect of such amendment is to alter the timing or amount of any required distribution of
principal or interest (including distributions made pursuant to the Ginnie Mae Guaranty) to any
Holder, or the right of any Holder to institute suit for the enforcement of any such payment. Any
such consent by the Holder of this Security shall be conclusive and binding on such Holder and
upon all future holders of this Security and of any Security issued upon the transfer hereof or in
exchange herefor or in lieu hereof regardless of whether notation of such consent is made upon
this Security.
As provided in the Trust Agreement and subject to certain limitations set forth therein,
the Holder of this Security may register the transfer of this Security in the Register by
surrendering this Security at the Corporate Trust Office of the Trustee. The surrendered Security
must be duly endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing. Upon such surrender, one or
more new Securities of like tenor of authorized denominations or Percentage Interests will be
issued to the designated transferee or transferees.
The Class RP Securities are issuable as Certificated Securities without coupons in the
minimum denomination or Percentage Interest specified in the Trust Agreement. As provided in
the Trust Agreement and subject to certain limitations set forth therein, this Class RP Security is
exchangeable for one or more new Securities of like tenor of authorized denomination, as
requested by the Holder surrendering the same. The Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with any
registration of transfer or exchange of this Security.
The Tax Administrator, Ginnie Mae and the Trustee and any agent of the Tax
Administrator, Ginnie Mae or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, and neither the Tax Administrator, Ginnie Mae
nor the Trustee, nor any such agent shall be affected by notice to the contrary.
Elections will be made to treat each Asset Pool as a REMIC (the “Pooling REMIC” and
the “Issuing REMIC,” and together the “Trust REMICs”) under the Internal Revenue Code of
1986, as amended (the “Code”). Assuming that such elections are made properly and that certain
Exhibit 5
11-4-76
73
qualification requirements concerning the Asset Pools and the Securities are met, the Holder of
this Class RP Security will be treated for federal income tax purposes as the beneficial owner of
a “residual interest” in the Pooling REMIC. Accordingly, the Holder of this Class RP Security
will be taxed on its pro rata share of the Pooling REMIC’s taxable income or net loss. The
requirement that the Holder of this Class RP Security report its pro rata share of such income or
loss will continue until there are no Securities of any Class outstanding.
Pursuant to the Trust Agreement, the Tax Administrator, as agent of the Trust REMICs,
will provide the Holder of this Class RP Security with information sufficient to enable such
Holder to prepare (i) its federal income tax and information returns and (ii) any reports required
by the Code regarding the Securities, except where such information is provided to each such
Holder by the Trustee pursuant to the Trust Agreement. As the Holder of the residual interest in
the Pooling REMIC, the Holder of this Class RP Security will have continuing administrative
rights and obligations with respect to such REMIC generally similar to those of a partner with
respect to its partnership. Such rights and obligations principally concern the Pooling REMIC’s
federal income tax and information returns and the representation of the Pooling REMIC in
administrative or judicial proceedings involving the Internal Revenue Service. The Tax
Administrator, however, will act on behalf of the Holder of this Class RP Security as the
representative of the Pooling REMIC for such proceedings. The federal income tax and
information returns of the Pooling REMIC will be prepared by the Tax Administrator and signed
and filed by the Trustee.
By accepting this Security, the Holder of this Security agrees to be bound by all of the
provisions of the Trust Agreement and, in particular, agrees that it shall (i) take any action
required by the Code or Treasury regulations thereunder in order to create or maintain the
REMIC status of each Trust REMIC and (ii) refrain from taking any action that could endanger
such status.
No transfer of this Security (or any beneficial interest therein) is permitted without the
written consent of the Trustee. As a condition to that consent, any Transferee (including the
initial purchaser) of this Security must provide the Trustee with a properly completed Transfer
Affidavit substantially in the form of Exhibit 1 to the Standard Trust Provisions, in which the
proposed Transferee represents and warrants to the Trustee that it (i) is a Permitted Transferee
and (ii) is not a Plan Investor. Notwithstanding the fulfillment of that condition, the Trustee may
withhold its consent to a transfer, but only to the extent necessary to avoid a risk of (i)
disqualification of either Trust REMIC as a REMIC or (ii) the imposition of a tax upon either
Trust REMIC. In addition, the Trustee shall not give its consent to the transfer of less than all of
a Transferor’s Ownership Interest in this Security unless the transferred interest can be expressed
as a single constant percentage of the Transferor’s Ownership Interest in this Security. Any
attempted transfer in violation of the foregoing restrictions will be null and void and shall not be
recognized by the Trustee.
If a tax or a reporting cost is borne by any Trust REMIC as a result of the transfer of this
Class RP Security, or any beneficial interest therein, in violation of the restrictions set forth
herein and in the Trust Agreement, the Trustee may pay such tax or reporting cost with amounts
that otherwise would have been paid to the transferee of this Class RP Security, or beneficial
Exhibit 5
11-4-77
74
interest therein. In that event, neither the transferee nor the transferor shall have any right to
seek repayment of such amounts from the Trustee, Ginnie Mae, the Trust, the Tax Administrator,
the Sponsor or the Holders of the other Securities. The Tax Administrator shall make, or cause
to be made, available the information necessary for the application of Section 860E(e) of the
Code.
The obligations created by the Trust Agreement and the Trust shall terminate upon the
payment to the Holders of the Securities of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Trust Agreement. The Trust Agreement permits, but
does not require, the Trustee to purchase all assets held by the Trust, at a price determined as
provided in the Trust Agreement, when the aggregate of the Class Principal Balances of the
Securities is less than 1% of the aggregate of the Original Class Principal Balances of such
Securities. Any exercise by the Trustee of such option would effect early retirement of the
Securities. In addition, the Trust (one or more related Trust REMICs) may be terminated by the
Trustee (and the related Securities retired) under certain circumstances in which the REMIC
status of any Trust REMIC is threatened.
Unless the certificate of authentication herein has been executed by the Trustee by
manual signature this Security shall not represent entitlement to any benefit under the Trust
Agreement or be valid for any purpose.
Exhibit 5
11-4-78
75
IN WITNESS WHEREOF, the Trustee has caused this Security to be duly executed
under its official seal.
[TRUSTEE], AS TRUSTEE
By:______________________________
AUTHORIZED SIGNATORY
Attest:__________________________
AUTHORIZED SIGNATORY
Dated: __________________________
Exhibit 5
11-4-79
76
CERTIFICATE OF AUTHENTICATION
This is one of the Class RP Securities referred to in the within-mentioned Trust
Agreement.
__________________________________, AS TRUSTEE
By:_______________________________
AUTHORIZED SIGNATORY
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee.)
the beneficial interest evidenced by the within Security, and hereby authorizes the transfer of
registration of such interest to the above named assignee on the Register of the Trust.
I (We) further direct the Trustee to issue a new Security of like Class, denomination or
Percentage Interest and tenor, to the above named assignee and to deliver such Security to the
following address:
________________________________________________________________________
______
Dated:
____________________________
Signature by or on behalf of assignor
Dated:
____________________________
Signature by or on behalf of assignor
Exhibit 5
11-4-80
77
DISTRIBUTION INSTRUCTIONS
The assignee should complete the following for purposes of future distributions:
Distributions shall be made by wire transfer or otherwise in immediately available funds, if
permitted hereunder, to
______________________________________________________________________________
for the account of ______________________________________________________________
account number ________________________________________________________________
or, if mailed by check, to _______________________________________________________
Applicable statements should be mailed to __________________________________________
_____________________________________________________________________________
This information is provided by ___________________________________________________,
the assignee named above, or _____________________________________________________,
as its agent.
Exhibit 5
11-4-81
78
Exhibit 6
FORM OF CLASS RI SECURITY
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED REMIC PASS-THROUGH SECURITY
GINNIE MAE REMIC TRUST 20___-__ (THE “TRUST”)
CLASS RI
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE
RELATED TRUST AGREEMENT. [THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION DOES NOT GUARANTEE PAYMENTS OF PREPAYMENT
PENALTIES ON THIS SECURITY.] THE FULL FAITH AND CREDIT OF THE
UNITED STATES OF AMERICA IS PLEDGED TO THE PAYMENT OF ALL
AMOUNTS THAT MAY BE REQUIRED TO BE PAID UNDER THIS GUARANTY.
NO TRANSFER OF THIS SECURITY IS PERMITTED WITHOUT THE WRITTEN
CONSENT OF THE TRUSTEE. AS A CONDITION TO THAT CONSENT, ANY
TRANSFEREE MUST DELIVER TO THE TRUSTEE A TRANSFER AFFIDAVIT. THE
TRUSTEE SHALL NOT CONSENT TO ANY TRANSFER OF THIS SECURITY TO A
“DISQUALIFIED ORGANIZATION” (AS DEFINED IN SECTION 860E(e)(5) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED), WHICH GENERALLY
INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME
TAXATION (INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE
INCOME) ON INCOME FROM THIS SECURITY. IN ADDITION NO TRANSFER OF
LESS THAN ALL OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY SHALL BE CONSENTED TO BY THE TRUSTEE UNLESS THE
TRANSFERRED INTEREST CAN BE EXPRESSED AS A SINGLE CONSTANT
PERCENTAGE OF THE TRANSFEROR’S OWNERSHIP INTEREST IN THIS
SECURITY.
THIS CLASS RI SECURITY REPRESENTS A RESIDUAL INTEREST IN A REMIC
FOR FEDERAL INCOME TAX PURPOSES.
Exhibit 6
11-4-82
79
CLASS: RI
CUSIP NO.:
CLOSING DATE:
INTEREST RATE: ________%
MONTH OF FINAL DISTRIBUTION
DATE:
[VARIABLE INTEREST RATE]
TRUSTEE:
ORIGINAL CLASS PRINCIPAL
BALANCE OF ALL CLASS RI
SECURITIES AS OF THE CLOSING
DATE: $______________
SPONSOR:
[DENOMINATION: $____________]
TAX ADMINISTRATOR:
[PERCENTAGE INTEREST: _____%]
NO. ____
This Security evidences a percentage interest in the distributions allocable to the Issuing REMIC
Residual Interest of the Trust, the assets of which consist primarily of the Trust Assets.
THIS CERTIFIES THAT
_____________________________________
is the registered owner of the Percentage Interest evidenced by this Security (either explicitly
specified above or obtained by dividing the denomination of this Security by the aggregate of the
denominations of all Securities of this Class) in any monthly distributions allocable to this Class
of Securities. The Securities were issued by the Trust created pursuant to a trust agreement (the
“Trust Agreement”) between the Sponsor and the Trustee, not in its individual capacity but
solely as Trustee. The capitalized terms used and not defined herein have the meanings set forth
in the Trust Agreement and Glossary in the Ginnie Mae Multiclass Securities Guide in effect on
the Closing Date. This Security is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the Holder of this Security, by virtue of its
acceptance hereof, assents and by which such Holder is bound.
The distribution date is the respective day of each month provided in Section 3.04(i) of
the Standard Trust Provisions for distributions to Holders of the Residual Interest (each, a
“Distribution Date”), commencing in the month following the month of the Closing Date.
Nevertheless, pursuant to the terms of the Trust Agreement, distributions will not be made on
this Security until the Business Day following each Distribution Date. Distributions will be
made to the Person in whose name this Security is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution (the related
“Record Date”), in an amount equal to the product of the Percentage Interest evidenced by this
Security and the distributions, if any, allocable to this Class of Securities pursuant to the Trust
Agreement.
Exhibit 6
11-4-83
80
This Security is limited in right of payment to certain collections in respect of the Trust
Assets and the Ginnie Mae Guaranty, all as more specifically set forth in the Trust Agreement.
This Security does not represent an obligation of the Sponsor or the Trustee or either of their
affiliates.
Distributions on this Security will be made by check mailed to the Holder at its address
reflected in the Register as of the related Record Date. Notwithstanding the foregoing, the final
distribution in retirement of this Security will be made only upon presentation and surrender of
this Security at the Corporate Trust Office.
Subject to the limitations set forth in the Trust Agreement, the Trust Agreement may be
amended for any purpose, without the consent of any Holder or Holders of the Securities.
However, the Trust Agreement may not be amended without the consent of the affected Holders
if the effect of such amendment is to alter the timing or amount of any required distribution of
principal or interest (including distributions made pursuant to the Ginnie Mae Guaranty) to any
Holder, or the right of any Holder to institute suit for the enforcement of any such payment. Any
such consent by the Holder of this Security shall be conclusive and binding on such Holder and
upon all future holders of this Security and of any Security issued upon the transfer hereof or in
exchange herefor or in lieu hereof regardless of whether notation of such consent is made upon
this Security.
As provided in the Trust Agreement and subject to certain limitations set forth therein,
the Holder of this Security may register the transfer of this Security in the Register by
surrendering this Security at the Corporate Trust Office of the Trustee. The surrendered Security
must be duly endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing. Upon such surrender, one or
more new Securities of like tenor of authorized denominations or Percentage Interests will be
issued to the designated transferee or transferees.
The Class RI Securities are issuable as Certificated Securities without coupons in the
minimum denomination or Percentage Interest specified in the Trust Agreement. As provided in
the Trust Agreement and subject to certain limitations set forth therein, this Class RI Security is
exchangeable for one or more new Securities of like tenor of authorized denomination, as
requested by the Holder surrendering the same. The Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with any
registration of transfer or exchange of this Security.
The Tax Administrator, Ginnie Mae and the Trustee and any agent of the Tax
Administrator, Ginnie Mae or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, and neither the Tax Administrator, Ginnie Mae
nor the Trustee, nor any such agent shall be affected by notice to the contrary.
Elections will be made to treat each Asset Pool as a REMIC (the “Issuing REMIC” and
the “Pooling REMIC,” and together the “Trust REMICs”) under the Internal Revenue Code of
1986, as amended (the “Code”). Assuming that such elections are made properly and that certain
Exhibit 6
11-4-84
81
qualification requirements concerning the Asset Pools and the Securities are met, the Holder of
this Class RI Security will be treated for federal income tax purposes as the beneficial owner of a
“residual interest” in the Issuing REMIC. Accordingly, the Holder of this Class RI Security will
be taxed on its pro rata share of the Issuing REMIC’s taxable income or net loss. The
requirement that the Holder of this Class RI Security report its pro rata share of such income or
loss will continue until there are no Securities of any Class outstanding.
Pursuant to the Trust Agreement, the Tax Administrator, as agent of the Trust REMICs,
will provide the Holder of this Class RI Security with information sufficient to enable such
Holder to prepare (i) its federal income tax and information returns and (ii) any reports required
by the Code regarding the Securities, except where such information is provided to each such
Holder by the Trustee pursuant to the Trust Agreement. As the Holder of the residual interest in
the Issuing REMIC, the Holder of this Class RI Security will have continuing administrative
rights and obligations with respect to such REMIC generally similar to those of a partner with
respect to its partnership. Such rights and obligations principally concern the Issuing REMIC’s
federal income tax and information returns and the representation of the Issuing REMIC in
administrative or judicial proceedings involving the Internal Revenue Service. The Tax
Administrator, however, will act on behalf of the Holder of this Class RI Security as the
representative of the Issuing REMIC for such proceedings. The federal income tax and
information returns of the Issuing REMIC will be prepared by the Tax Administrator and signed
and filed by the Trustee.
By accepting this Security, the Holder of this Security agrees to be bound by all of the
provisions of the Trust Agreement and, in particular, agrees that it shall (i) take any action
required by the Code or Treasury regulations thereunder in order to create or maintain the
REMIC status of each Trust REMIC and (ii) refrain from taking any action that could endanger
such status.
No transfer of this Security (or any beneficial interest therein) is permitted without the
written consent of the Trustee. As a condition to that consent, any Transferee (including the
initial purchaser) of this Security must provide the Trustee with a properly completed Transfer
Affidavit substantially in the form of Exhibit 1 to the Standard Trust Provisions, in which the
proposed Transferee represents and warrants to the Trustee that it (i) is a Permitted Transferee
and (ii) is not a Plan Investor. Notwithstanding the fulfillment of that condition, the Trustee may
withhold its consent to a transfer, but only to the extent necessary to avoid a risk of (i)
disqualification of any Trust REMIC as a REMIC or (ii) the imposition of a tax upon either Trust
REMIC. In addition, the Trustee shall not give its consent to the transfer of less than all of a
Transferor’s Ownership Interest in this Security unless the transferred interest can be expressed
as a single constant percentage of the Transferor’s Ownership Interest in this Security. Any
attempted transfer in violation of the foregoing restrictions will be null and void and shall not be
recognized by the Trustee.
If a tax or a reporting cost is borne by either Trust REMIC as a result of the transfer of
this Class RI Security, or any beneficial interest therein, in violation of the restrictions set forth
herein and in the Trust Agreement, the Trustee may pay such tax or reporting cost with amounts
that otherwise would have been paid to the transferee of this Class RI Security, or beneficial
Exhibit 6
11-4-85
82
interest therein. In that event, neither the transferee nor the transferor shall have any right to
seek repayment of such amounts from the Trustee, Ginnie Mae, the Trust, the Tax Administrator,
the Sponsor or the Holders of the other Securities. The Tax Administrator shall make, or cause
to be made, available the information necessary for the application of Section 860E(e) of the
Code.
The obligations created by the Trust Agreement and the Trust shall terminate upon the
payment to the Holders of the Securities of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Trust Agreement. The Trust Agreement permits, but
does not require, the Trustee to purchase all assets held by the Trust, at a price determined as
provided in the Trust Agreement, when the aggregate of the Class Principal Balances of the
Securities is less than 1% of the aggregate of the Original Class Principal Balances of such
Securities. Any exercise by the Trustee of such option would effect early retirement of the
Securities. In addition, the Trust (or one or more related Trust REMICs) may be terminated by
the Trustee (and the related Securities retired) under certain circumstances in which the REMIC
status of any Trust REMIC is threatened.
Unless the certificate of authentication herein has been executed by the Trustee by
manual signature this Security shall not represent entitlement to any benefit under the Trust
Agreement or be valid for any purpose.
Exhibit 6
11-4-86
83
IN WITNESS WHEREOF, the Trustee has caused this Security to be duly executed
under its official seal.
[TRUSTEE], AS TRUSTEE
By:______________________________
AUTHORIZED SIGNATORY
Attest:__________________________
AUTHORIZED SIGNATORY
Dated: __________________________
Exhibit 6
11-4-87
84
CERTIFICATE OF AUTHENTICATION
This is one of the Class RI Securities referred to in the within-mentioned Trust
Agreement.
__________________________________, AS TRUSTEE
By:_______________________________
AUTHORIZED SIGNATORY
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee.)
the beneficial interest evidenced by the within Security, and hereby authorizes the transfer of
registration of such interest to the above named assignee on the Register of the Trust.
I (We) further direct the Trustee to issue a new Security of like Class, denomination or
Percentage Interest and tenor, to the above named assignee and to deliver such Security to the
following address:
________________________________________________________________________
______
Dated:
____________________________
Signature by or on behalf of assignor
Dated:
____________________________
Signature by or on behalf of assignor
Exhibit 6
11-4-88
85
DISTRIBUTION INSTRUCTIONS
The assignee should complete the following for purposes of future distributions:
Distributions shall be made by wire transfer or otherwise in immediately available funds, if
permitted hereunder, to
______________________________________________________________________________
for the account of ______________________________________________________________
account number ________________________________________________________________
or, if mailed by check, to _______________________________________________________
Applicable statements should be mailed to __________________________________________
_____________________________________________________________________________
This information is provided by ___________________________________________________,
the assignee named above, or _____________________________________________________,
as its agent.
Exhibit 6
11-4-89
86
FORM OF MX TRUST AGREEMENT FOR REMIC TRANSACTIONS
II-5-0
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED [MULTIFAMILY] GRANTOR TRUST PASS-THROUGH SECURITIES
GINNIE MAE MX TRUST 20_-_
TRUST AGREEMENT
between
______________________________,
as Sponsor,
and
_____________________________,
as Trustee
DATED AS OF
____________ __, 20_
II-5-1
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of _____ __, 20_, is entered into by and between
__________, a ________ (the “Sponsor”), and _________, a _______, as trustee (the “Trustee”).
Section 1.
Standard Trust Provisions. The Standard Trust Provisions for Ginnie Mae
MX Trusts, as set forth in the Ginnie Mae Multiclass Securities Guide, April 1, 2008 Edition[, as
amended through __________ __, 20__] (the “MX Standard Trust Provisions”) are herein
incorporated by reference and shall be considered a part of this Trust Agreement as if set forth
herein in full.
Section 2.
Defined Terms. Capitalized terms used in this Trust Agreement shall have
the meanings set forth below and in Article I of the MX Standard Trust Provisions, provided that
the meanings below shall be controlling in the case of any conflict with the MX Standard Trust
Provisions. Capitalized terms used and not otherwise defined in this Trust Agreement shall have
the meanings assigned to them in the Glossary contained in the Ginnie Mae Multiclass Securities
Guide, April 1, 2008 Edition, [as amended through
, 20 ,]; provided that the
definitions in such Glossary which themselves use capitalized terms defined in this Trust
Agreement will be interpreted using the meaning for such capitalized terms set forth in this Trust
Agreement.
“Book-Entry Securities”: The Securities identified as Modifiable Classes or MX Classes
in the Issuance Statement attached hereto as Exhibit 1.
“Closing Date”: As set forth in the related REMIC Trust Agreement.
“Corporate Trust Office”: As set forth in the related REMIC Trust Agreement.
[“Co-Trust Counsel”:
]
“Increased Minimum Denomination Class[es]”: As set forth under “Increased Minimum
Denomination Class[es]” in Schedule A.
“Offering Circular Supplement”: The Offering Circular Supplement for Ginnie Mae
REMIC Trust 20_ -__, dated
, 20 .
[“Ratio Strip Combination[s]: Combination[s] [ ] and [ ].]
“Registrar”: The Trustee.
“Sponsor”: The entity identified as such on the cover page hereof.
“Sponsor Agreement”: As set forth in the related REMIC Trust Agreement.
“Tax Administrator”: The Trustee.
2
II-5-2
“Trust Assets”: Each Class of Ginnie Mae Guaranteed REMIC Pass-Through Securities
issued by Ginnie Mae REMIC Trust 20 - having the identical class designation as each
Modifiable Class.
“Trust Counsel”: ______________________________.
“Trustee”: The entity identified as such on the cover page hereof, or its successor in
interest, or any successor trustee appointed as herein provided.
“Trust Fund”: The corpus of the trust established hereby, consisting of: (a) the Trust
Assets and all distributions thereon on or after the first day of the month following the month in
which the Closing Date occurs, (b) all of the Sponsor’s right, title and interest in, but none of the
Sponsor’s obligations under, the Sponsor Agreement, (c) the Trust Accounts, and (d) any
proceeds of the foregoing.
Section 3.
Conveyance to the Trustee. In consideration of all of the Securities issued
hereunder, the receipt of which is hereby acknowledged by the Sponsor, the Sponsor does hereby
sell, assign, transfer and convey to the Trustee, in trust for the benefit of the Holders, all of the
Sponsor’s right, title and interest in and to the Trust Fund.
Section 4.
Acceptance by the Trustee. By its execution of this Trust Agreement, the
Trustee acknowledges receipt of the Trust Fund and declares that it holds and will hold the Trust
Fund in trust for the exclusive use and benefit of all present and future Holders pursuant to the
terms of this Trust Agreement. The Trustee represents and warrants that (a) the Trust Assets
have been issued to the Trustee, (b) the Trustee acquired the Trust Assets on behalf of the Trust
from the Sponsor in good faith, for value, and without notice or knowledge of any adverse claim,
lien, charge, encumbrance or security interest (including, without limitation, federal tax liens or
liens arising under ERISA), (c) except as permitted in this Trust Agreement, the Trustee has not
and will not, in any capacity, assert any claim or interest in the Trust Assets, and (d) the Trustee
has not encumbered or transferred its right, title or interest in the Trust Assets.
Section 5.
The Securities.
(a)
The Securities will be designated generally as Ginnie Mae Guaranteed Grantor
Trust Pass-Through Securities, Series 20_-_. The (i) designation, (ii) Original Class Principal
Balance (or original Class Notional Balance), (iii) Interest Rate, (iv) Final Distribution Date,
(v) CUSIP Number, (vi) Interest Type and (vii) Principal Type for each Modifiable Class are set
forth in the table on the front cover of the Offering Circular Supplement attached hereto as
Schedule A (and correspond to the Related REMIC Class with the same Class designation), and
for each MX Class are set forth on the Combination Schedule attached hereto as Schedule B [;
except that the Interest Rates for the [Floating Rate] [and] [Inverse Floating Rate] Class[es] are
set forth in the Terms Sheet for the Offering Circular Supplement].
(b)
The Book-Entry Securities shall be issued in book-entry form in the
denominations specified in the Issuance Statement attached hereto as Exhibit 1.
3
II-5-3
[(c)
Each Modifiable or MX Class that is an Increased Minimum Denomination Class
shall be issued in the minimum denominations set forth under “Description of the Securities —
Form of Securities” in the Offering Circular Supplement.
Section 6.
Distributions to Holders. On each Distribution Date, the Trustee (or the
Paying Agent on behalf of the Trustee) shall withdraw the Class Distribution Amount for each
Class from the Trust Accounts in accordance with the MX Standard Trust Provisions and shall
distribute such amount on a pro rata basis among the Outstanding Securities of such Class.
Section 7.
Modification of the MX Standard Trust Provisions. The following
modifications of the MX Standard Trust Provisions shall apply to the Securities: [NONE]
[Insert other modifications, if necessary]
[NOTE TO TRUST COUNSEL: Additional modifications may be needed for the
definitions of Accrual Class, Partial Accrual Class, Interest Distribution Amount, Principal
Distribution Amount and any other definitions related to payments to Holders to the extent that
any Trust Asset Group consists primarily of HECM MBS or Underlying Certificates backed
ultimately by HECM MBS.]
Section 8.
Schedules and Exhibit[s]. Each of the Schedules and Exhibit[s] attached
hereto or referenced herein is incorporated herein by reference.
* * * * *
4
II-5-4
IN WITNESS WHEREOF, the Sponsor and the Trustee have caused this Trust
Agreement to be duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
[SPONSOR]
By: ____________________________________
Its: _____________________________________
[TRUSTEE], as Trustee
By: ____________________________________
Its: _____________________________________
5
II-5-5
STATE OF NEW YORK
COUNTY OF __________
)
) ss.:
)
The foregoing instrument was acknowledged before me in the County of _________,
____________, this ____ day of ______________, 20_, by _______________________,
_____________ of ______________________, a __________________ [corporation], on behalf
of the [corporation].
_______________________________
Notary Public
My Commission expires: _________________
II-5-6
STATE OF ________________
COUNTY OF ______________
)
) ss.:
)
The foregoing instrument was acknowledged before me in the County of __________,
_______________, this ____ day of ________________, 20_, by ________________,
____________ of _______________________, a ___________________ [banking corporation],
on behalf of the [corporation].
_______________________________
Notary Public
My Commission expires: _________________
II-5-7
LIST OF SCHEDULES AND EXHIBITS
Schedule A:
Front cover and Terms Sheet of Offering Circular Supplement
Schedule B:
Combination Schedule
Exhibit 1:
Issuance Statement
II-5-8
______________________________________________________________________________
STANDARD TRUST PROVISIONS
FOR GINNIE MAE MX TRUSTS
______________________________
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
GUARANTEED GRANTOR TRUST PASS-THROUGH SECURITIES
____________
April 1, 2008 Edition
______________________________________________________________________________
11-6-1
Table of Contents
Page
ARTICLE I. DEFINITIONS ..........................................................................................................1
ARTICLE II. ESTABLISHMENT OF TRUST .............................................................................4
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Section 2.05
Section 2.06
Establishment of Trust. ..................................................................................4
Conveyance of Underlying REMIC Certificates. ..........................................4
Registration of Underlying REMIC Certificates. ..........................................4
Delivery of Securities. ...................................................................................4
Board Approval of Trust Agreement. ............................................................4
Separate Grantor Trusts. ................................................................................5
ARTICLE III. THE SECURITIES .................................................................................................5
Section 3.01
Section 3.02
Section 3.03
Section 3.04
Forms of the Securities. .................................................................................5
Registration of Securities...............................................................................6
[Reserved]. .....................................................................................................6
Exchanges. .....................................................................................................6
ARTICLE IV. DISTRIBUTIONS ON THE SECURITIES ...........................................................7
Section 4.01
Section 4.02
Section 4.03
Section 4.04
Section 4.05
Section 4.06
Section 4.07
Section 4.08
Establishment of Accounts. ...........................................................................7
Class Factors. .................................................................................................8
Payments on the Underlying REMIC Certificates.........................................8
Distributions on the Securities. ......................................................................9
Reconciliation Process. ................................................................................10
Appointment of Information Agent. ............................................................10
Annual Reports. ...........................................................................................10
Operational Guidelines. ...............................................................................11
ARTICLE V. REPRESENTATIONS, WARRANTIES AND COVENANTS............................11
Section 5.01 Representations and Warranties of the Sponsor ..........................................11
Section 5.02 Representations and Warranties of the Trustee ...........................................12
ARTICLE VI. CONCERNING THE TRUSTEE.........................................................................12
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
Section 6.12
Duties of Trustee..........................................................................................12
Certain Matters Affecting the Trustee. ........................................................13
Trustee Not Liable for Securities.................................................................14
Trustee May Own Securities........................................................................14
Payment of Trustee’s Fees and Expenses. ...................................................15
Eligibility Requirements for Trustee. ..........................................................15
Resignation and Removal of the Trustee. ....................................................15
Successor Trustee.........................................................................................17
Appointment of Co-Trustee. ........................................................................17
Merger or Consolidation of Trustee.............................................................18
Indemnification of HUD and Ginnie Mae. ..................................................18
Performance Reviews by Ginnie Mae. ........................................................18
11-6-2
i
Section 6.13 Voting Under the REMIC Trust Agreement................................................18
ARTICLE VII. TERMINATION .................................................................................................19
ARTICLE VIII. MISCELLANEOUS PROVISIONS..................................................................19
Section 8.01
Section 8.02
Section 8.03
Section 8.04
Section 8.05
Section 8.06
Section 8.07
Section 8.08
Section 8.09
Section 8.10
Section 8.11
Section 8.12
Limitation of Rights of Holders...................................................................19
Control by Holders.......................................................................................19
Amendment of Trust Agreements................................................................19
Persons Deemed Owners. ............................................................................20
Third-Party Beneficiary; Ginnie Mae Subrogation......................................20
Preemption. ..................................................................................................20
Governing Law. ...........................................................................................21
Successors. ...................................................................................................21
Headings. .....................................................................................................21
Notice and Demand......................................................................................21
Severability of Provisions. ...........................................................................22
Counterparts.................................................................................................22
ARTICLE IX. TAX ADMINISTRATOR ....................................................................................23
Section 9.01 Tax Administration. .....................................................................................23
Section 9.02 Resignation and Removal of the Tax Administrator. ..................................24
Exhibit 1
Form of Issuance Statement
11-6-3
ii
STANDARD TRUST PROVISIONS
FOR GINNIE MAE MX TRUSTS
THESE STANDARD TRUST PROVISIONS FOR GINNIE MAE MX TRUSTS are to
be incorporated by reference in each Trust Agreement entered into by and between a Sponsor
and a Trustee in connection with each Series of Ginnie Mae’s Guaranteed Grantor Trust PassThrough Securities and shall apply to each such Series except as otherwise provided in the
related Trust Agreement.
ARTICLE I.
DEFINITIONS
Whenever used herein, the following words and phrases shall have the meanings set forth
in this Article I. Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the related Trust Agreement and the glossary included in the Ginnie Mae
Multiclass Securities Guide, Parts I and II in effect as of the date of the Trust Agreement.
Accrual Period: As to each MX or Modifiable Class, the “Accrual Period” for the
Related REMIC Class or Classes.
Aggregate Denomination: As to any Class and date of determination, the aggregate of
the principal or notional denominations of the Outstanding Securities of such Class on such date.
Book-Entry Depository Account: An Eligible Account that is a limited purpose account
maintained by the Trustee at the Book-Entry Depository, which account shall, among other
things, be credited with all distributions in respect of the Underlying REMIC Certificates, and
from which amounts distributable to Securities shall be payable.
Class: As to any Series, all Securities sharing the same designation.
Class Distribution Amount: As to each Modifiable Class and Distribution Date, an
amount equal to the distribution of principal and/or interest on such Distribution Date in respect
of the Related REMIC Class multiplied by a fraction, the numerator of which is equal to the
Aggregate Denomination of such Modifiable 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
Modifiable Class. As to each MX Class and Distribution Date, an amount equal to the sum of (i)
the Class Interest Distribution Amount for such Class and (ii) the Class Principal Distribution
Amount for such Class.
Class Factor: As to any date of determination and any Modifiable Class, the then current
“Class Factor” for the Related REMIC Class. As to any date of determination and any MX
Class, the factor (truncated to eight decimal places) determined by dividing (i) the aggregate
current principal (or notional) amount of such Class, calculated on the assumption that the
maximum possible amount thereof is then outstanding, regardless of any exchanges, by (ii) the
Initial Authorized Denomination of such Class.
11-6-4
1
Class Interest Distribution Amount: As to each MX Class and each Distribution Date, an
amount equal to interest accrued during the related Accrual Period (computed on the basis of a
360-day year consisting of twelve 30-day months) at the applicable Interest Rate on the Class
Principal Balance or Class Notional Balance thereof at the close of business on the related
Record Date.
Class Notional Balance: With respect to any Class of interest only securities, at any time,
the aggregate of the Notional Balances of all such Outstanding Securities.
Class Principal Balance: With respect to any Class of Securities, at any time, the
aggregate of the Security Principal Balances of all Outstanding Securities of such Class.
Class Principal Distribution Amount: As to each MX Class (other than an MX Class that
is a Notional Class), an amount as to principal equal to (i) the concurrent distribution of principal
in respect of the Related REMIC Class or Classes multiplied by (ii) a fraction, the numerator of
which is the Aggregate Denomination of such MX Class and the denominator of which is the
aggregate Original Class Principal Balance of such Related REMIC Class or Classes. For each
MX Class that is a Notional Class, the amount shall be zero.
Distribution Date: As to any Modifiable or MX Class, the Distribution Date for the
Related REMIC Class or Classes.
Distribution Shortfall Amount: As defined in Section 4.04(b).
Exchange Ratio: Unless otherwise specified in the related Trust Agreement, as to any
Security surrendered for exchange and each Security delivered in exchange therefor, such ratio
that results in (i) the aggregate principal balance (exclusive of any notional balance) of the
Securities received being equal to that of the Securities surrendered (except for de minimis
differences due to rounding) and (ii) the aggregate monthly interest entitlement of the Securities
received being equal to that of the Securities surrendered (except for de minimis differences due
to rounding).
Initial Authorized Denomination: With respect to any Class, the amount set forth with
respect to such Class in the Combination Schedule under the heading “Maximum Original
Principal Balance or Class Notional Balance”.
Level Two MX Class: Any Class included in a Combination which is an “MX Class” for
such Combination if one or more of the Classes for which such MX Class is exchangeable is
identified as an “MX Class” in another Combination.
Level Two MX Securities: The Securities of any Level Two MX Class.
Modifiable Class: Each Class included in a Combination that is not identified under the
heading “Related MX Class” as an MX Class for such Combination.
Modifiable Securities: The Securities of any Modifiable Class.
11-6-5
2
MX Class: Each Class designated as such in the Combination Schedule.
MX Securities: The Securities of any MX Class.
Notional Balances: As to any Outstanding Security that constitutes an interest only
security, (i) prior to the initial Distribution Date, the notional denomination thereof; and (ii)
subsequent to its initial Distribution Date, the notional denomination thereof multiplied by the
then current Class Factor.
Outstanding Security: Each Modifiable or MX Security; provided, however, that upon
the exchange of any Security pursuant to Section 3.04 hereof, the Security so exchanged shall be
deemed no longer to be an Outstanding Security and each Security issued in exchange therefor
shall be deemed to be an Outstanding Security.
Ratio Strip Combination: As defined in the related Trust Agreement.
Related MX Class or Classes: As to any Level Two MX Class included in a
Combination, the remaining MX Class or Classes included in such Combination (other than any
other Level Two MX Classes).
Related REMIC Class or Classes: As to any Modifiable Class or MX Class included in a
Combination, the Class or Classes of Underlying REMIC Certificates having the identical class
designations as the Modifiable Class or Classes included in such Combination (or, in the case of
a Level Two MX Class, the Class or Classes of Underlying REMIC Certificates having the
identical class designations as the Modifiable Class or Classes which are exchangeable into the
Related MX Class or Classes).
REMIC Trust Agreement: The trust agreement pursuant to which the Underlying
REMIC Certificates were issued.
Securities Group: All Classes of Securities included within any particular Combination.
Security: A Ginnie Mae Guaranteed Grantor Trust Pass-Through Security.
Security Principal Balance: As to any Outstanding Security (other than an Interest Only
Security) prior to the initial Distribution Date, the denomination thereof; and as to any such
Outstanding Security subsequent to such initial Distribution Date, the denomination thereof
multiplied by the then applicable Class Factor.
Tax Administrator: With respect to a Trust, the Person designated in the Trust
Agreement to perform certain tax administrative functions for the Trust.
Trust: As to each Series, the related Ginnie Mae MX Trust.
Trust Agreement: With respect to each Trust, the agreement between the Sponsor and
the Trustee that identifies and establishes the Trust and the particular Securities issued in respect
11-6-6
3
of that Trust. Each Trust Agreement shall incorporate these Standard Trust Provisions by
reference and may modify, amend or supplement the terms hereof in any respect.
Underlying REMIC Certificate: As to any Trust, each REMIC Security conveyed thereto
by the related Sponsor.
ARTICLE II.
ESTABLISHMENT OF TRUST
Section 2.01 Establishment of Trust.
As of the Closing Date, the Sponsor will establish the Trust by depositing the Underlying
REMIC Certificates identified in the related Trust Agreement with the Trust, and the Trust will
issue the Securities, representing the entire beneficial ownership interest in the Trust, to the
Sponsor in consideration of the Underlying REMIC Certificates.
Section 2.02 Conveyance of Underlying REMIC Certificates.
The deposit of Underlying REMIC Certificates by a Sponsor to a Trust pursuant to the
related Trust Agreement shall occur upon the Closing Date for such Series and shall constitute a
sale, assignment, transfer and conveyance by the Sponsor to the Trust of all right, title and
interest in such Underlying REMIC Certificates as of the first day of the month of the Closing
Date, notwithstanding any provision of federal or state law to the contrary.
Section 2.03 Registration of Underlying REMIC Certificates.
Each Underlying REMIC Certificate will be issued in uncertificated form under the
related REMIC Trust Agreement in the name of the Trustee hereunder. The books and records
of the Trustee will reflect that it holds the Underlying REMIC Certificates as Trustee of the
related Trust for the benefit of the Holders of the Securities of that Trust.
Section 2.04 Delivery of Securities.
Simultaneously with the execution and delivery of the Trust Agreement, the Trustee shall
deliver to the Sponsor the Securities (other than any Modifiable Securities that are the subject of
an exchange and any MX Securities that are not the subject of an exchange immediately
following their issuance).
Section 2.05 Board Approval of Trust Agreement.
Prior to the execution of the Trust Agreement and the establishment of the Trust, the
Trustee’s board of directors, its duly appointed loan committee, duly appointed trust committee
or duly authorized officers, as the case may be, shall approve the Trust Agreement in accordance
with the Trustee’s organizational documents and any applicable state or federal regulation,
including, to the extent applicable, and without limitation 12 C.F.R. §§ 9.7 and 550.5, each as
amended from time to time, and such approval shall be reflected in the minutes of the Trustee’s
11-6-7
4
board or committee, as applicable. The Trustee shall maintain the Trust Agreement as an official
record of the Trustee from the time the Trust Agreement is executed.
Section 2.06 Separate Grantor Trusts.
The arrangement pursuant to which each Trust is created pursuant to the related Trust
Agreement, and pursuant to which the related Underlying REMIC Certificates will be
administered, shall be treated as a separate grantor trust under subpart E, part I of subchapter J of
the Internal Revenue Code of 1986, as amended (the “Code”) and the provisions of the related
Trust Agreement shall be interpreted in a manner consistent with such treatment.
ARTICLE III.
THE SECURITIES
Section 3.01 Forms of the Securities.
(a)
Forms and Denominations of Securities. The Classes of Securities shall
be maintained, transferred and exchanged as Securities on the book-entry records of the BookEntry Depository in minimum denominations of $1,000 and integral multiples of $1 in excess
thereof, except that a Security of any Class designated as an Increased Minimum Denomination
Class in the Trust Agreement shall, in the case of any Modifiable Security, be issued in the
minimum denominations specified in the related Offering Circular for the Related REMIC Class
with the corresponding Class designation or, in the case of MX Securities, shall be issued in such
minimum denominations specified in the related Offering Circular. No person acquiring a
beneficial ownership interest in the Securities (a “beneficial owner”) shall be entitled to receive a
physical certificate representing such ownership interest.
(b)
Method of Distribution. Distributions on the Securities shall be made by
the Trustee on each Distribution Date to each Holder as of the related Record Date.
Distributions on the Securities shall be made through the facilities of the Book-Entry Depository
pursuant to instructions provided by the Trustee. In the event of a principal or interest payment
error, the Trustee shall, pursuant to Ginnie Mae’s instructions, effect corrections by the
adjustment of payments to be made on future Distribution Dates.
(c)
Authorization, Issuance and Delivery of Securities. The manual execution
of the MX Trust Agreement by an authorized officer of each of the Trustee and the Sponsor shall
be conclusive evidence that the Securities have been duly and validly authorized and validly
issued by the Trustee and are entitled to the benefits of the MX Trust Agreement.
Delivery of the Securities occurs when the Registrar registers the transferee as the
registered owner of such Securities. The Securities to be issued at closing shall be identified on
an Issuance Statement attached as Exhibit 1 to the Trust Agreement prepared by the Sponsor and
delivered to the Trustee. On the Closing Date, the Registrar shall register the Book-Entry
Depository as the registered owner of the Securities. Upon execution and delivery of the
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Guaranty Agreement with respect to each Trust, Ginnie Mae authorizes the issuance of the
Securities, entitled to the benefits of the following Ginnie Mae Guaranty:
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, PURSUANT TO
SECTION 306(g) OF THE NATIONAL HOUSING ACT, GUARANTEES THE TIMELY
PAYMENT OF PRINCIPAL AND INTEREST ON THIS SECURITY IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE RELATED
TRUST AGREEMENT. THE FULL FAITH AND CREDIT OF THE UNITED STATES OF
AMERICA IS PLEDGED TO THE PAYMENT OF ALL AMOUNTS THAT MAY BE
REQUIRED TO BE PAID UNDER THIS GUARANTY.
Section 3.02 Registration of Securities.
The Trustee shall keep one or more offices or agencies at which, subject to such
reasonable regulations as it may prescribe, the Trustee or another Person designated by the
Trustee and approved by Ginnie Mae shall be the registrar and shall maintain a register and
provide for the registration of Securities as herein provided.
Section 3.03 [Reserved].
Section 3.04 Exchanges.
Modifiable Securities shall be exchangeable on the books of the Book-Entry Depository
for MX Securities, and MX Securities shall be exchangeable on the books of the Book-Entry
Depository for Modifiable Securities, on and after the Closing Date under the terms and
conditions hereinafter set forth and otherwise in accordance with the procedures specified in the
related Offering Circular.
In the case of each Securities Group, Securities of the Class or Classes of Modifiable
Securities in such Securities Group shall be exchangeable for Securities of the MX Securities in
such Securities Group in the respective denominations determined pursuant to the applicable
Exchange Ratios. Upon any such exchange, the portion or portions of the Modifiable Securities
designated for exchange shall be deemed cancelled and replaced by the MX Security or
Securities issued in exchange therefor. Correspondingly, MX Securities included in a Securities
Group may be exchangeable for Securities of the Modifiable Classes included in the same
Securities Group in the respective denominations determined pursuant to the applicable
Exchange Ratios. In addition to the exchanges set forth above, in the case of any Ratio Strip
Combination, Securities of each MX Class in such Ratio Strip Combination shall be
exchangeable for Securities of the other MX Classes included in such Ratio Strip Combination in
the respective denominations determined pursuant to the applicable Exchange Ratios. Upon any
such exchange, the portion or portions of Securities designated for exchange shall be deemed
cancelled and replaced by the Security or Securities issued in exchange therefor. There shall be
no limitation (other than with respect to Increased Minimum Denomination Classes) on any
exchanges authorized pursuant to this Section 3.04, and, except as provided in the following
paragraph, no fee or other charge shall be payable in connection therewith.
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As a condition to each exchange, a fee shall be payable to the Trustee equal to 1/32 of 1%
of the outstanding principal balance (or notional balance, to the extent provided in the following
proviso) of the Securities to be submitted for exchange (but not less than $2,000 or greater than
$25,000); provided, however, that no such fee shall be payable in respect of an interest only
security, unless all Securities involved in an exchange are interest only securities. If the notional
balance of the Securities surrendered exceeds that of the Securities received, the fee will be
based on the latter.
Unless otherwise specified in the related Offering Circular or Trust Agreement, any
beneficial owner proposing to effect an exchange as contemplated by this Section 3.04 shall
notify the Trustee (through the facilities of the Book-Entry Depository) no later than two
Business Days before the proposed date of exchange; provided however, that no such exchange
can occur on the last business day of any month. Any such notice as provided hereunder shall
become irrevocable by the beneficial owner on the second Business Day preceding the proposed
date of exchange, provided that the exchange fee has been paid. The contents of any notice of
exchange shall be specified in the related Offering Circular.
In connection with any exchange of Securities, the Trustee shall verify that such
exchange has been effected in the appropriate proportions. The Trustee shall promptly notify the
Book-Entry Depository (or its participant, as applicable) in the event of error. The initial
distribution in respect of a Security delivered for exchange shall occur on the Distribution Date
in the month following the month of exchange.
Notwithstanding any provision herein to the contrary, a Sponsor may, with Ginnie Mae’s
prior consent, effect an exchange of Modifiable Securities immediately following their issuance
on the related Closing Date (which may coincide with the last day of the month) and take
delivery of MX Securities rather than such Modifiable Securities. No fee shall be payable for
any such exchanges.
ARTICLE IV.
DISTRIBUTIONS ON THE SECURITIES
Section 4.01 Establishment of Accounts.
(a)
Book-Entry Depository Account. The Trustee shall maintain a BookEntry Depository Account with the Book-Entry Depository. With respect to each Trust, the
Trustee shall account for all funds in, all deposits to and all withdrawals from the Book-Entry
Depository Account separately and on a Trust-by-Trust basis, clearly identifying the Segregated
Portion thereof.
(b)
[Reserved].
(c)
Variance Account. With respect to each Trust, the Trustee shall establish
and maintain a separate Variance Account, which will be an Eligible Account. Amounts will be
credited to the Variance Account and withdrawals will be made from the Variance Account as
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specified herein. The Variance Account shall not be an asset of the Trust, the owner of which
solely for federal income tax purposes (and not for any other purpose) will be Ginnie Mae. The
depository records of the Trustee, or, as the case may be, the depository institution or trust
company at which the Variance Account is to be established, shall reflect in respect of the
Variance Account (i) that the Trustee, as depositor, is acting in a fiduciary capacity on behalf of
the Holders of Securities in respect of the Trust, (ii) the names and respective interests of such
Holders, and (iii) that such Holders may be acting in a fiduciary capacity for others. If the
amounts on deposit in the Variance Account exceed $100, the Trustee shall invest amounts held
in the Variance Account in Eligible Investments approved by Ginnie Mae; any investment
earnings shall be for the account of and distributable to Ginnie Mae unless otherwise allocated to
make up for shortfalls as provided in Section 4.04(b) hereof.
(d)
Board Approval. Prior to the establishment of any Trust Account, the
Trustee’s board of directors, or a duly appointed loan committee, duly appointed trust committee
or duly authorized officers, as the case may be, of the Trustee, or, as the case may be, the
Trustee’s board of directors, a duly appointed loan committee, duly appointed trust committee or
duly authorized officers of the depository institution or trust company at which such Trust
Account is to be established, shall approve the establishment of such Trust Account and the Trust
Agreement in accordance with the organizational documents of such institution and any
applicable state or federal regulation, including, to the extent applicable, and without limitation
12 C.F.R. §§ 9.7 and 550.5, each as amended from time to time, and such approval shall be
reflected in the minutes of such board or committee, as applicable. The Trustee, or, as the case
may be, the depository institution or trust company at which any Trust Account is to be
established, shall maintain the Trust Agreement as an official record from the time of its
execution.
(e)
Segregated Portions. With respect to each Trust, the Book-Entry
Depository Account shall include, and where applicable a reference to such account herein or in
the related Trust Agreement shall be understood to be a reference to, a Segregated Portion of
such account corresponding to such Trust.
Section 4.02 Class Factors.
The Trustee shall determine the Class Factors and Interest Rate, and calculate the Class
Distribution Amount for each Distribution Date. In addition, the Trustee shall report the Interest
Rate and the Class Factor for each Class (and other information as requested by Ginnie Mae
from time to time) to the Information Agent no later than 6:00 p.m. (Eastern time) on the second
Business Day preceding the Distribution Date (or the third preceding Business Day, in the case
of Securities evidencing an interest in Underlying REMIC Certificates that are backed by Ginnie
Mae II Certificates).
Section 4.03 Payments on the Underlying REMIC Certificates.
All amounts in respect of distributions on the Underlying REMIC Certificates shall be
wire transferred to the Book-Entry Depository Account by the Trustee no later than 9:00 a.m.
Eastern Standard Time on the Distribution Date.
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Section 4.04 Distributions on the Securities.
(a)
Distribution Date Statement. No later than 2:00 p.m. Eastern Standard
Time on the first Business Day following each Distribution Date, the Trustee shall provide to the
Information Agent, a Distribution Date Statement in such form as is approved by the Trustee and
Ginnie Mae. Each Distribution Date Statement will specify amounts distributed on such
Distribution Date as principal and interest on each Class of Securities of a Series.
(b)
Distribution Shortfall. No later than 10:00 a.m. Eastern Standard Time on
the Distribution Date, the Book-Entry Depository shall determine the amount, if any, by which
(A) the amounts distributable as principal and interest on the Securities on such Distribution
Date, exceed (B) the amounts received on the Underlying REMIC Certificates on the related
Underlying REMIC Certificate Payment Date (the “Distribution Shortfall Amount”). The BookEntry Depository immediately shall notify Ginnie Mae of the amount of such deficiency, and the
account or accounts to which Ginnie Mae should transfer such amounts. In the event that there
are sufficient amounts in the Variance Account to cover the Depository Shortfall Amount, the
Trustee shall withdraw the Depository Shortfall Amount from the Variance Account and wire
transfer such amount to the Book-Entry Depository Account no later than 10:01 a.m., and shall
immediately inform Ginnie Mae of any such transfer.
(c)
[Reserved].
(d)
Distributions. On each Distribution Date the Trustee (and/or the BookEntry Depository on behalf of and pursuant to the instructions of the Trustee) shall make such
distributions on the Securities issued in respect of any Trust as shall be provided in the related
Trust Agreement. The Trustee hereby directs the Book-Entry Depository to withdraw from the
Book-Entry Depository Account on each Distribution Date amounts distributable as principal
and interest on the Securities as instructed by the Trustee. On each Distribution Date, the BookEntry Depository will credit the accounts of its record owner of such Securities in accordance
with the standard procedures of the Book-Entry Depository.
(e)
Allocations of Distributions. The Holders of any Class entitled to receive
distributions on any Distribution Date shall receive such distributions on a pro rata basis among
the Outstanding Securities of such Class based on the principal balance, notional balance or
percentage interest of such Securities. All distributions of principal on the Securities issued in
respect of a particular Trust shall be made as provided in the related Trust Agreement.
(f)
Ginnie Mae Guaranty. With respect to each Series, pursuant to the
Guaranty Agreement, Ginnie Mae, in exchange for the Ginnie Mae Guaranty Fee, has guaranteed
to each Holder of a Security the timely payment of principal and interest on such Security in
accordance with the terms of the applicable Trust Agreement
(g)
Ginnie Mae Guaranty Payments. If the Book-Entry Depository and/or the
Trustee discovers that payments on the Underlying REMIC Certificates underlying a Series
together with any available funds (including any such funds in the Variance Account) will be
inadequate to distribute principal and interest to the Securities of such Series on any Distribution
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Date in accordance with the terms of the Trust Agreement, the Book-Entry Depository and/or the
Trustee, as the case may be, promptly shall inform Ginnie Mae that a Ginnie Mae Guaranty
Payment must be made. In that event, Ginnie Mae (or its agent) will transfer the amount of the
shortfall to the Book-Entry Depository Account in immediately available funds. At Ginnie
Mae’s option, Ginnie Mae may instruct the Person designated by the Trustee and acceptable to
Ginnie Mae as the Person to hold funds on behalf of the Trustee (which Person initially shall be
The Bank of New York) to transfer such amount. In addition, if on the Final Distribution Date of
any Class, the funds available to be distributed on such Class are insufficient to reduce the Class
Principal Balance of such Class to zero, Ginnie Mae shall make a Ginnie Mae Guaranty Payment
in the amount of such insufficiency. In the event that Ginnie Mae makes any Ginnie Mae
Guaranty Payment to reduce the Class Principal Balance of any Class to zero on its Final
Distribution Date, such Class shall continue to be treated as outstanding for all purposes, and
Ginnie Mae shall be deemed to have purchased the related Class and will be entitled to all
subsequent distributions on such Class. For the avoidance of doubt, the powers of the Trustee
under the Trust Agreement include the right to take all necessary and appropriate actions to
enforce the Ginnie Mae Guaranty in accordance with the terms hereof, to the extent that Ginnie
Mae fails to make any required payment pursuant to the Ginnie Mae Guaranty.
(h)
Separate Application of Payments. The application of payments pursuant
to Section 4.03 and this Section 4.04 shall be made separately in respect of each Trust, and each
reference to a Trust Account shall be understood to refer to the Segregated Portion of such
account corresponding to each Trust created hereunder.
Section 4.05 Reconciliation Process.
After a Distribution Date, at the request of Ginnie Mae, the Trustee shall reconcile
payments in accordance with the Ginnie Mae Multiclass Operational Guidelines. Such
reconciliation may involve credits and charges to one or more Trust Accounts.
Section 4.06 Appointment of Information Agent.
Except as otherwise provided in the Trust Agreement, at the direction of Ginnie Mae, the
Trustee of each Trust has appointed The Bank of New York to be the Information Agent. Ginnie
Mae has reserved the right to substitute at any time another Person as the Information Agent.
Section 4.07 Annual Reports.
Within a reasonable period of time after the end of each calendar year (but in no event
later than sixty days after the end of such calendar year), the Trustee shall furnish or cause to be
furnished to Ginnie Mae and to each Person who at any time during the calendar year was the
Holder of a Security a statement containing the amount of distributions allocable to principal and
the amount allocable to interest.
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Section 4.08 Operational Guidelines.
Ginnie Mae has established operational guidelines designed to assist the operational
departments of the Trustee, the Book-Entry Depository, the Information Agent and Ginnie Mae
in complying with the requirements of this Article IV. Ginnie Mae has reserved the right,
consistent with law, to alter or waive any of the requirements of the operational guidelines or to
institute other requirements as it deems appropriate. The Trustee hereby agrees to comply with
the Ginnie Mae Multiclass Operational Guidelines, as amended from time to time.
ARTICLE V.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01 Representations and Warranties of the Sponsor. The Sponsor hereby
represents and warrants as follows:
(a)
The Trust Agreement constitutes the legal, valid and binding agreement of
the Sponsor, enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally
and to general principles of equity regardless whether enforcement is sought in a proceeding in
equity or at law;
(b)
Neither the execution and delivery by the Sponsor of the Trust Agreement,
nor the consummation by the Sponsor of the transactions therein contemplated, nor compliance
by the Sponsor with the provisions thereof, will (i) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the articles of incorporation or by-laws of the
Sponsor or any law, governmental rule or regulation or any judgment, decree or order binding on
the Sponsor or any of its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which the Sponsor is a party or by which it is bound, or (ii)
result in the creation of any lien, charge, or encumbrance upon any of its properties pursuant to
the terms of any such indenture, mortgage, deed of trust, contract or other instrument;
(c)
The information provided with respect to each Underlying REMIC
Certificate is true and correct in all material respects as of the Closing Date;
(d)
The representations and warranties made by the Sponsor in the Sponsor
Agreement are true and correct in all material respects at and as of the Closing Date with the
same effect as if made on the Closing Date; and
(e)
The Sponsor has complied with all the agreements (including, without
limitation, the covenants in the Sponsor Agreement) and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
It is understood and agreed that the representations and warranties set forth in this Section
5.01 shall survive delivery of the Underlying REMIC Certificates to the Trustee and shall inure
to the benefit of the Trustee and Ginnie Mae notwithstanding any restrictive or qualified
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endorsement or assignment. Upon the discovery by the Sponsor or the Trustee of a breach of the
foregoing representations and warranties, the party discovering such breach shall give prompt
written notice to the other party to the Trust Agreement and to Ginnie Mae, and in no event later
than two Business Days from the date of such discovery.
Section 5.02 Representations and Warranties of the Trustee. The Trustee hereby
represents and warrants as follows:
(a)
The Trustee acknowledges and declares that it holds and will hold the
Underlying REMIC Certificates (in uncertificated form), and that it has agreed to hold all
documents delivered to it with respect to such Underlying REMIC Certificates and all assets of
the Trust in trust for the exclusive use and benefit of all present and future Holders and, to the
extent provided herein, Ginnie Mae.
(b)
The Trustee (i) acquired the Underlying REMIC Certificates on behalf of
the Trust from the Sponsor in good faith, for value, and without notice or knowledge of any
adverse claim, lien, charge, encumbrance or security interest (including, without limitation, any
federal tax liens or liens arising under ERISA), (ii) except as permitted in the Trust Agreement,
has not and will not, in any capacity, assert any claim or interest in the Underlying REMIC
Certificates and will hold (or its agent will hold) such Underlying REMIC Certificates and the
proceeds thereof in trust pursuant to the terms of the Trust Agreement, and (iii) has not
encumbered or transferred its right, title or interest in the Underlying REMIC Certificates.
(c)
On the Closing Date, the Trustee shall deliver to the Sponsor and Ginnie
Mae a certificate certifying that the Trustee (or an agent thereof) is in possession of the
Underlying REMIC Certificates for such Series.
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.01 Duties of Trustee.
The Trustee undertakes to perform such duties and only such duties as are specifically set
forth in the related Trust Agreement. The Trustee, upon receipt of any and all resolutions,
certificates, statements, opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision of such Trust
Agreement, or that may be furnished to the Trustee at its request, shall examine them to
determine whether they conform to the requirements of such Trust Agreement.
No provision of any Trust Agreement shall be construed to relieve the Trustee of such
Trust from liability for its own negligent action, its own negligent failure to act or its own
misconduct; provided, however, that:
(a)
The duties and obligations of the Trustee shall be determined solely by the
express provisions of the related Trust Agreement, the Trustee shall not be liable except for the
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performance of such duties and obligations as are specifically set forth in the related Trust
Agreement, and no implied covenants or obligations shall be read into the related Trust
Agreement against the Trustee;
(b)
The Trustee shall not be personally liable for an error of judgment made in
good faith by a responsible officer or responsible officers of the Trustee, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(c)
The Trustee shall not be personally liable with respect to any action taken
or suffered or omitted to be taken by it in good faith in accordance with the direction of Ginnie
Mae as to the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under a Trust
Agreement.
(d)
The Trustee with respect to any Trust shall not be personally liable with
respect to any action taken or suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of a Series evidencing Percentage Interests aggregating not less
than 25% of each Class of Securities in such Series effected thereby as to the enforcement by the
Trustee of the Ginnie Mae Guaranty.
The Information Agent shall not be deemed to be the agent of the Trustee, but rather the
agent of Ginnie Mae. The Trustee shall not be liable for any loss, liability or damage to any
Trust attributable to the acts or omissions of the Information Agent.
Section 6.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 6.01, with respect to any Series:
(a)
The Trustee may request (at its sole expense, except as otherwise provided
herein) and rely conclusively upon and shall be protected in acting or refraining from acting
upon any resolution, officers’ certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other
paper, communication or document prima facie in proper form and believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b)
The Trustee may consult with counsel, and any opinion of counsel shall be
full and complete authorization and protection from liability in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c)
The Trustee shall be under no obligation to exercise any of the trusts or
powers vested in it by the related Trust Agreement or to institute, conduct or defend any
litigation thereunder or in relation thereto at the request, order or direction of Ginnie Mae or any
of the Holders of such Series, pursuant to the provisions of the Trust Agreement, unless (i) such
directing party has offered to the Trustee reasonable security or indemnity against the costs,
expenses (including the fees and disbursements of Trustee’s counsel), and liabilities that may be
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incurred by the Trustee with respect thereto or (ii) the need for or desirability of such institution,
conduct or defense results from the negligence of the Trustee;
(d)
The Trustee shall not be personally liable for any action taken or suffered
or omitted to be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by a Trust Agreement;
(e)
The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper, communications or document, unless
requested in writing so to do by Ginnie Mae or the Holders of a Series evidencing Percentage
Interests aggregating not less than 50% of each Class of Securities in such Series; provided,
however, that the reasonable expense of such investigation shall be paid by the party requesting
the investigation, and the Trustee may require reasonable indemnity against the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation as a condition to
proceeding;
(f)
The Trustee may execute any of the trusts or powers under any Trust
Agreement or perform any duties thereunder either directly or by or through agents or attorneys;
(g)
The Trustee may rely conclusively on all calculations and other
information provided to it by Ginnie Mae, the Information Agent or any other agent of Ginnie
Mae; and
(h)
The Trustee shall not be obligated to post a bond or other form of surety in
connection with its service or status as Trustee under a Trust Agreement.
Section 6.03 Trustee Not Liable for Securities.
The Trustee makes no representations as to the validity or sufficiency of any Trust
Agreement or of any Securities (except that each Trust Agreement has been duly executed and is
binding on the Trustee and the Securities of each Series shall be duly and validly issued,
authorized and delivered by the Trustee) or of any Underlying REMIC Certificates or any
document related to any of the foregoing.
The Trustee shall have no responsibility or accountability with respect to the sufficiency
or adequacy of the following: (a) the Underlying REMIC Certificates and Ginnie Mae Guaranty
to generate funds necessary to make required payments on the Securities or (b) any offering
circular or other securities filings or reports required to be filed by any federal, state or local
securities regulatory authority, including but not limited to the Securities and Exchange
Commission.
Section 6.04 Trustee May Own Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities, and may transact banking or trust business with Ginnie Mae, any Sponsor, the Book
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Entry Depository, any beneficial owner or any other Trustee with the same rights it would have
if it were not Trustee.
Section 6.05 Payment of Trustee’s Fees and Expenses.
The Trustee’s compensation for all services rendered by it in the execution of the trusts
created by the Trust Agreement and in the exercise and performance of any of its powers and
duties under the Trust Agreement shall be payable to it as a portion of its fees as Trustee of the
related REMIC trust.
Section 6.06 Eligibility Requirements for Trustee.
The Trustee under any Trust Agreement must have been approved in writing by Ginnie
Mae to serve as Trustee under such Trust Agreement and at all times (a) must be organized and
doing business under the laws of the state of its incorporation or the United States of America,
(b) must be authorized under such laws to exercise corporate trust powers, (c) must have (or
must be a member of a consolidated bank or financial holding company that has) a combined
capital and surplus that meets the requirements prescribed by Ginnie Mae from time to time
pursuant to written notice provided to the Trustee by Ginnie Mae, (d) must be a member
depository institution of the FRS (e) must be an entity subject to supervision or examination by
federal or state authority and (f) unless otherwise approved by Ginnie Mae, must have a long
term unsecured debt obligation rating from Moody’s Investors, Inc. of at least Aa3 and a short
term debt or commercial paper rating from Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc. of at least A-1. In addition, neither the Trustee nor any officer or
professional working on the subject matter of the Trust may be currently suspended or debarred
by any governmental agency, nor may such Persons have been convicted of, or found liable in a
civil action for, fraud, forgery, bribery, falsification or destruction of records, making false
statements or any other offense indicating a lack of business integrity that seriously and directly
could affect the responsibility of the Trustee, or such officer or professional.
If the Trustee publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of the Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time
the Trustee ceases to be eligible in accordance with the provisions of this Section, the Trustee
shall notify Ginnie Mae in writing immediately and, if Ginnie Mae requests, shall resign
immediately in the manner and with the effect specified in Section 6.07 hereof.
Section 6.07 Resignation and Removal of the Trustee.
The Trustee may resign as Trustee of any Trust at any time and be discharged from the
trusts created under the related Trust Agreement by giving written notice thereof to Ginnie Mae
and upon appointment of a successor trustee pursuant to Section 6.08. Upon receiving such
notice of resignation, Ginnie Mae may appoint a successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 90 days after the giving of such
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notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee acceptable to Ginnie Mae.
Ginnie Mae may remove the Trustee for cause at any time. For the purposes of this
Section “cause” shall mean one of the following:
(a)
The Trustee’s ceasing to be eligible in accordance with the provisions of
Section 6.06 hereof and failing to resign after written request therefor by Ginnie Mae or its
agent;
(b)
The Trustee’s inability to take any actions required under a Trust
Agreement;
(c)
The Trustee’s failure to observe or perform any of its covenants set forth
in the related Trust Agreement;
(d)
A court or regulatory authority having jurisdiction in the premises,
including without limitation the FDIC and any similar state authority, entering a decree or order
for relief in respect of the Trustee in an involuntary case under any bankruptcy, insolvency,
receivership, conservatorship or other similar law or regulation, state or federal, now or hereafter
in effect, or appointing a receiver, conservator, assignee, trustee, custodian, sequestrator or other
similar official for the Trustee or for all or any substantial part of its property, or order the
winding up or liquidation of its affairs;
(e)
The Trustee’s commencing a voluntary case under any applicable
bankruptcy, insolvency, receivership, conservatorship or other similar law or regulation, state or
federal, now or hereafter in effect, or consenting to or acquiescing in the entry of an order for
relief in an involuntary case under any such law, or consenting to or acquiescing in the
appointment of or taking of possession by a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for the Trustee or for all or any substantial part of
its property, or making a general assignment for the benefit of creditors, or the Trustee’s
generally failing to pay its debts as they become due;
(f)
The discovery that any Location-Based Tax, other tax or other charge
levied or threatened to be levied against a Trust on account of the situs of the Trustee could be
avoided by the appointment of a successor trustee, to the extent that Ginnie Mae determines that
such tax or other change may not be adequately covered by the Trustee; or
(g)
The removal for cause of the Trustee as the trustee of any trust that has
issued securities guaranteed by Ginnie Mae.
Any resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.08 hereof but in no event shall
become effective until a successor has been appointed and has accepted the duties of the Trustee.
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Any liability of the Trustee under a Trust Agreement arising prior to such termination shall
survive such termination.
To the extent that a successor trustee is entitled to receive reasonable compensation in
excess of compensation payable to the Trustee under the related Trust Agreement, the Trustee
shall indemnify Ginnie Mae and the Trust for the amount of such excess and shall provide such
security for such indemnity as Ginnie Mae may require.
Section 6.08 Successor Trustee.
Any successor trustee appointed to serve as Trustee of a Trust shall execute, acknowledge
and deliver to Ginnie Mae and its predecessor trustee an instrument accepting such appointment
under the related Trust Agreement, and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor under the Trust Agreement, with the same effect as if originally named as trustee
therein. The predecessor trustee shall immediately deliver to the successor trustee all documents
and statements held by it under the applicable Trust Agreement, and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably be required for
more fully and certainly vesting and confirming in the successor trustee all such rights, powers,
duties and obligations. The predecessor trustee shall perform the duties and obligations imposed
on it in this Section irrespective of any stay arising from, any injunction or other process issued
pursuant to, and any restriction or limitation imposed by any bankruptcy, insolvency,
receivership, conservatorship or other similar law or regulation, state or federal, now or hereafter
in effect, including without limitation 11 U.S.C. §§ 105, 362 and 18 U.S.C. §§ 1821, 1823, each
as amended from time to time. In the event the predecessor trustee fails to perform the duties
and obligations imposed on it in this Section, Ginnie Mae may take any action it deems
necessary or advisable to cause the performance of such duties and obligations.
No successor trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor trustee is eligible under the provisions of Section 6.06
hereof.
Upon acceptance of appointment by a successor trustee as provided in this Section, the
successor trustee shall mail notice of the succession of such trustee hereunder to all Holders at
their addresses as shown in the register.
Section 6.09 Appointment of Co-Trustee.
The Trustee shall be permitted to appoint a Person that either meets the eligibility
requirements to act as a Trustee hereunder or otherwise has been approved in writing by Ginnie
Mae to act as co-trustee with respect to the Trust. Any such co-trustee may perform any of the
duties and obligations of the Trustee hereunder, provided, however, that any such appointment of
any co-trustee shall not relieve the Trustee of any of its obligations and duties hereunder. The
Trustee shall continue to remain liable for the performance of all such duties and obligations
hereunder (including the obligation to indemnify Ginnie Mae pursuant to Section 6.11, 6.12),
11-6-20
17
irrespective of the appointment of any co-trustee to perform such duties or obligations on behalf
of the Trustee.
Section 6.10 Merger or Consolidation of Trustee.
Any corporation into which a Trustee may be merged or converted or with which it may
be consolidated or any corporation resulting from any merger, conversion or consolidation to
which such Trustee may be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of such Trustee, shall be the successor of such Trustee under the related
Trust Agreement without the execution or filing of any paper or any further act on the part of any
of the parties to the Trust Agreement, provided such corporation is eligible under the provisions
of Section 6.06 hereof.
Section 6.11 Indemnification of HUD and Ginnie Mae.
The Trustee for each Trust shall indemnify and hold harmless HUD and Ginnie Mae
(including each official, officer, employee and agent of HUD and Ginnie Mae) from and against
any and all losses, claims, demands, liabilities, or expenses (including, without limitation, all
attorneys’ fees and related charges and expenses) resulting, directly or indirectly, from any
Trustee default or other failure to perform under the related Trust Agreement. Without limiting
the foregoing, Ginnie Mae’s right to indemnification hereunder shall include the right to
reimbursement of any and all amounts paid by Ginnie Mae to any Holder of such Series as a
result of any failure of the Trustee properly to calculate the amount of any required distribution
to any such Holder or to cause the proper distributions to be made to any such Holder, together
with interest thereon at a rate equal to the yield on three-month U.S. Treasury securities.
Section 6.12 Performance Reviews by Ginnie Mae.
At its sole discretion, and from time to time, Ginnie Mae shall have the right to undertake
a full performance review of the Trustee and any subcontractors retained by the Trustee. Any
such review may involve the on site inspection of the Trustee’s (or any subcontractor’s) facilities
and the review of any books, records or documents of the Trustee (or any subcontractor) which
relate to the performance by the Trustee (or any subcontractor) of its duties hereunder. In
connection with any such review and inspection, the Trustee agrees to make available to Ginnie
Mae appropriate officers of the Trustee (or any subcontractor) and to otherwise cooperate with
such an undertaking by Ginnie Mae.
Section 6.13 Voting Under the REMIC Trust Agreement.
In the event that there shall be any matter arising under the related REMIC Trust
Agreement that requires the vote of holders of securities outstanding thereunder, the Trustee
shall vote in a manner consistent, in the sole judgment of the Trustee, with the best interests of
Holders. Notwithstanding the preceding sentence, the Trustee shall not have a right to vote,
under this Section 6.13, in any case where the existence of such right would cause the Trust not
to be treated as a grantor trust for United States federal income tax purposes.
11-6-21
18
ARTICLE VII.
TERMINATION
The respective obligations and responsibilities of the Sponsor and the Trustee created by
the related Trust Agreement shall terminate upon the payment of all principal and accrued
interest on the Securities and all other amounts due and owing by the Trustee under such Trust
Agreement; provided, however, that in no event shall the Trust created hereby continue beyond
the expiration of 21 years less one day from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living
on the date hereof.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Section 8.01 Limitation of Rights of Holders.
The death or incapacity of any person having an interest, beneficial or otherwise, in a
Security shall not operate to terminate any Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of any Trust, nor otherwise affect
the rights, obligations and liabilities of the parties hereto or any of them.
Section 8.02 Control by Holders.
Except as otherwise provided in the Trust Agreement, no Holder in any Series shall have
any right to vote or in any manner otherwise control the administration, operation and
management of any Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Securities, be construed so as to constitute the Holders
from time to time as partners or members of an association; nor shall a Holder 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.
Section 8.03 Amendment of Trust Agreements.
(a)
Any Trust Agreement may, with the consent of Ginnie Mae, and shall, at
the request of Ginnie Mae, be amended from time to time by the Trustee without the consent of
the Sponsor or any Holder or Holders (i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or to make any other
provisions with respect to this Trust Agreement, provided that any such amendment shall not
effect a change in the Distribution Dates, Record Dates, the Ginnie Mae Guaranty or other
payment terms established by the Trust Agreement for the Series which adversely affects in any
material respect the interests of any Holder and shall not impose an additional obligation on any
party who has not consented to such amendment; or (ii) except as provided in Section 8.03(b)
below, to make any other changes that Ginnie Mae requests.
11-6-22
19
(b)
Notwithstanding any other provision herein, without the consent of each
Holder who may be adversely affected, the related Trust Agreement may not be amended to
impair or affect the right of such Holder to receive payment of principal and interest (including
any payment under the Ginnie Mae Guaranty in respect thereof) or to institute suit for the
enforcement of any such payment, all as herein provided, on or after the respective due date of
such payment. Notwithstanding the foregoing, the Trustee shall not allow any amendment to the
related Trust Agreement that would cause the Trust not to be treated as a grantor trust for United
States federal income tax purposes.
Section 8.04 Persons Deemed Owners.
The Trustee, Ginnie Mae and the registrar, or any agent of the Trustee, Ginnie Mae or the
registrar, may deem and treat the Holder of the Securities (which, with respect to the Securities,
will be the Book-Entry Depository (or its nominee)), as the absolute owner of such Securities for
the purpose of receiving distributions of principal or interest and for all other purposes, and
neither the Trustee, Ginnie Mae nor the registrar, nor any agent of the Trustee, Ginnie Mae or the
registrar, shall be affected by any notice to the contrary. All such distributions so made to the
Holder or upon such Holder’s order shall be valid and, to the extent of the sum or sums so
distributed, effectual to satisfy and discharge the duty for monies distributable by the Trustee
upon such Securities.
The Holder of a Book-Entry Security is not the beneficial owner of such Security. The
rights of a beneficial owner of a Book-Entry Security with respect to the Trustee, Ginnie Mae
and the registrar may be exercised only through the Holder, which is the Book-Entry Depository
or its nominee. The Trustee, Ginnie Mae and the registrar will have no obligation to a beneficial
owner of a Book-Entry Security because such obligations are satisfied directly to the Book-Entry
Depository.
Section 8.05 Third-Party Beneficiary; Ginnie Mae Subrogation.
The Trustee and the Sponsor hereby acknowledge and agree that Ginnie Mae is a thirdparty beneficiary of each Trust Agreement and entitled to enforce all obligations of any party to a
Trust Agreement. Ginnie Mae shall be subrogated to all the rights, interests, remedies, powers
and privileges of the Holders in respect of any Ginnie Mae Guaranty payments, to the extent of
such payments.
Section 8.06 Preemption.
Pursuant to Section 306(g)(3)(E)(iv) of the National Housing Act (12 U.S.C.
§ 1721(g)(3)(E)(iv)), Ginnie Mae may exercise any right or power granted to it in or recognized
under the Trust Agreement irrespective of any stay arising from, any injunction or other process
issued pursuant to, and any restriction or limitation imposed by any bankruptcy, insolvency,
receivership, conservatorship or other similar law or regulation, state or federal, now or hereafter
in effect, including without limitation 11 U.S.C. §§ 105, 362 and 18 U.S.C. §§ 1821, 1823, each
as amended from time to time.
11-6-23
20
Section 8.07 Governing Law.
THE TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA. INSOFAR
AS THERE MAY BE NO APPLICABLE LAW OF THE UNITED STATES, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING REGARD TO CONFLICT OF
LAWS PRINCIPLES OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW) SHALL BE DEEMED REFLECTIVE OF THE LAWS OF
THE UNITED STATES OF AMERICA, INSOFAR AS TO DO SO WOULD NOT
FRUSTRATE THE PURPOSES OF ANY PROVISION OF THE TRUST AGREEMENT OR
THE TRANSACTIONS GOVERNED THEREBY.
Section 8.08 Successors.
The Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Trustee, the Sponsor, or Ginnie Mae, including any successor by operation of
law.
Section 8.09 Headings.
The Article and Section headings are for convenience only and shall not affect the
construction of the Trust Agreement.
Section 8.10 Notice and Demand.
Any notice, demand or other communication which by any provision of a Trust
Agreement is required or permitted to be given or served to or upon any Holder may be given or
served in writing by deposit thereof, postage prepaid, in the United States mail addressed to such
Holder as such Holder’s name and address may appear in the records of the Trustee or the
registrar. Such notice, demand or other communication to or upon a Holder shall be deemed to
have been sufficiently given or made, for all purposes, upon mailing or transmission.
RECEIPT AND ACCEPTANCE OF A SECURITY BY OR ON BEHALF OF A
HOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND
ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH SECURITY OF ALL THE
TERMS AND PROVISIONS OF THE RELATED TRUST AGREEMENT.
All demands, notices, approvals and communications under the Trust Agreement shall be
in writing and shall be deemed to have been duly given if personally delivered (including
overnight receipted delivery by a recognized courier service) to or mailed by registered mail,
postage prepaid, or transmitted by any standard form of written telecommunications and
confirmed by a similar mailed writing, to the address provided in the Trust Agreement. The
address for Ginnie Mae shall be as follows:
11-6-24
21
Government National Mortgage Association
550 12th Street, SW
Third Floor
Washington, D.C. 20024
Attention: President
With copies to:
Department of Housing and Urban Development
Office of General Counsel
Room 9254
451 Seventh Street, S.W.
Washington, D.C. 20410-9000
Attention: Assistant General Counsel Ginnie Mae/Finance
and the Legal Advisor as of the date of the demand, notice,
approval or communication.
The addresses of all other parties are set forth in the related Sponsor Agreement.
Section 8.11 Severability of Provisions.
Any part, provision, representation or warranty of any Trust Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions, representations or
warranties of that Trust Agreement. Any part, provision, representation or warranty of a Trust
Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions, representations or
warranties of that Trust Agreement, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties to each Trust Agreement waive any
provision of law which prohibits or renders void or unenforceable any provision of that Trust
Agreement.
Section 8.12 Counterparts.
The Trust Agreement may be executed in two or more counterparts, each of which when
so executed and delivered shall be an original, and all of which together shall constitute one and
the same instrument. The Trust Agreement shall inure to the benefit of and be binding upon the
parties thereto and their respective successors and assigns.
11-6-25
22
ARTICLE IX.
TAX ADMINISTRATOR
Section 9.01 Tax Administration.
Each Holder of a Security hereby designates the Tax Administrator, as its agent, to
perform certain tax administration functions of the related Trust.
(a)
With respect to each Trust, the Tax Administrator shall pay in a timely
manner:
(i)
the amount of any federal, state and local taxes imposed on the
Trust out of amounts in the Trust Accounts (except for Location-Based Taxes
attributable to the Tax Administrator, which shall be paid by the Tax
Administrator out of its own funds); provided, however, that the Tax
Administrator may decide, provided it has received the written permission of
Ginnie Mae, to pay or deposit such tax but subsequently to contest such tax, or, if
permitted by law, to refrain from paying such tax pending the outcome of the
contest of such tax, and
(ii)
out of its own funds, any and all tax related expenses (not
including taxes) of the Trust, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to each such Trust that involves the Internal Revenue Service or state or
local tax authorities; provided, however, that the Tax Administrator may pay out
of amounts in the Trust Accounts the reasonable cost of contesting a tax imposed
on the Trust, provided that the Tax Administrator has received Ginnie Mae’s
written permission to engage in the contest.
(b)
With respect to each Trust, the Tax Administrator shall maintain all books,
records, and supporting documents that are necessary to comply with any and all aspects of the
Tax Administrator’s duties under the Trust Agreement and other closing documents.
(c)
For each Trust, the related Tax Administrator shall timely prepare, sign
(or, as appropriate, submit to the Trustee for signature) and file all of the federal, state, and local
tax and information returns of the Trust. The expenses of preparing and filing such returns shall
be borne by the Tax Administrator without any right to reimbursement by the Trustee or from
amounts on deposit in the Trust Accounts.
(d)
The Tax Administrator for each Trust shall assist the Trustee in
performing in a timely manner all reporting and other tax compliance duties that are the
responsibility of the Trust under federal, state or local tax law. Upon the Tax Administrator’s
request, the Trustee shall provide the Tax Administrator with a list of Security holders of record
and any other information reasonably necessary to the Tax Administrator in the performance of
its duties.
11-6-26
23
(e)
With respect to each Trust, the Tax Administrator and the Trustee shall
take any action or cause any Trust to take any action necessary to create or maintain the status of
such Trust as a grantor trust pursuant to Section 2.06 hereof.
(f)
With respect to each Trust, neither the Tax Administrator nor the Trustee
shall take any action or fail to take any action, or cause any Trust to take any action or fail to take
any action that, if taken or not taken, could endanger the status of any such Trust as a grantor
trust pursuant to Section 2.06 hereof.
(g)
With respect to each Trust, unless otherwise provided in the related Trust
Agreement, the fiscal year of such Trust shall run from January 1 (or from the Closing Date, in
the case of the first fiscal year) through December 31.
(h)
The Trustee shall reimburse the Trust for any Location-Based Taxes.
Section 9.02 Resignation and Removal of the Tax Administrator.
(a)
Unless otherwise provided in the Trust Agreement, the Trustee shall act as
Tax Administrator. The Trustee may subcontract with another Person acceptable to Ginnie Mae
to undertake these obligations. In addition, Ginnie Mae reserves the right to require the Trustee
to subcontract with a Person designated by Ginnie Mae to perform these duties. Execution of a
subcontract shall not relieve the Trustee, however, of any responsibility for the tax
administration of the Trust or of liability for breaches of the obligations of the Tax Administrator
under the Trust Agreement.
(b)
If the Tax Administrator for a Trust is unable for any reason to fulfill its
duties as Tax Administrator, the Tax Administrator shall immediately notify Ginnie Mae and the
Trustee. Upon notification, the Trustee may appoint another Person acceptable to Ginnie Mae to
act as Tax Administrator or Ginnie Mae may direct the Trustee to appoint another Person to act
in such capacity.
(c)
Except as provided in a Trust Agreement, Ginnie Mae has reserved the
right to remove the Tax Administrator for cause at any time. For the purposes of this Section
“cause” shall mean one of the following:
(i)
The Tax Administrator’s inability to take any actions required
under a Trust Agreement;
(ii)
Failure on the part of the Tax Administrator to observe or perform
any other of its covenants set forth in the related Trust Agreement;
(iii) A court having jurisdiction entering a decree or order for relief in
respect of the Tax Administrator in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, sequestrator (or other
similar official) of the Tax Administrator or for all or substantially all of its
property, or order the winding up or liquidation of its affairs; or
11-6-27
24
(iv)
The Tax Administrator commencing a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
or consenting to the entry of an order for relief in an involuntary case under any
such law, or consenting to the appointment of or taking of possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Tax Administrator or for any substantial part of its property, or
making any general assignment for the benefit of creditors, or the Tax
Administrator failing generally to pay its debts as they become due.
(d)
Any resignation or removal of the Tax Administrator and appointment of a
successor Tax Administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Tax Administrator as provided in
Section 9.02(e) below. Any liability of the Tax Administrator under a Trust Agreement arising
prior to such termination shall survive such termination.
(e)
The successor Tax Administrator appointed to serve as Tax Administrator
of a Trust as provided in this Section shall execute, acknowledge and deliver to Ginnie Mae and
its predecessor Tax Administrator a written acceptance of such appointment under the related
Trust Agreement, and thereupon the resignation or removal of the predecessor Tax Administrator
shall become effective and such successor Tax Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor under such Trust Agreement, with the same effect as if originally named as Tax
Administrator therein.
*
*
*
11-6-28
25
Exhibit 1
ISSUANCE STATEMENT
See Section D., 2. of Part II of the Guide for the Form of Issuance Statement.
Exhibit 1
11-6-29
26
FORM OF TRUSTEE’S RECEIPT AND SAFEKEEPING AGREEMENT
FOR REMIC TRANSACTIONS
TRUSTEE’S RECEIPT AND SAFEKEEPING AGREEMENT
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
[Sponsor’s Name] (the “Sponsor”)
[Sponsor’s Address]
Ginnie Mae REMIC Trust 20 -__
Ladies and Gentlemen:
___________________________, as trustee (the “Trustee”) under a trust agreement (the
“Trust Agreement”), dated as of _______________ __, 20_, between the Trustee and
______________ (the “Sponsor”), acknowledges receipt of the [Trust Assets] [Ginnie Mae
Multifamily Certificates] listed on Schedule A attached to this letter (the “Trust Assets”).
Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the
glossary contained in the Ginnie Mae Multiclass Securities Guide currently in effect.
The Trustee has received the Trust Assets through the facilities of [
] (the
“ Trust Asset Depository”), which has credited the Trust Assets to a limited purpose account at
the Trust Asset Depository. [NOTE TO TRUST COUNSEL: If the Trust Assets include any
Trust MBS or Underlying Certificates that are held in the book-entry facilities of more than one
depository, identify such other depositories].
The Trustee confirms that it is holding, and at all times prior to settlement on
_____________________ __, 20_ (the “Closing Date”) will hold, the Trust Assets in one or
more segregated accounts in the name of and solely for the benefit of [the Sponsor] [the
Sponsor’s Participating Affiliates]. The Trustee has made appropriate entries on its books and
records to show that it is so holding the Trust Assets, and the Trust Assets are not subject to any
right, charge, security interest, lien or claim of any kind in favor of the Trustee or any Person
claiming through it.
II-7-1
All of the Trust Assets, [with the exception of the Class [A1] and [A2] Securities to be
issued by Ginnie Mae Callable Trust [20 - ] as of the Closing Date,] described in the attached
list and having an aggregate [original] [current] face value of $________________, are held by
the Trustee as the Sponsor’s agent and subject to the Sponsor’s further instructions. In the event
that there is no settlement on the Closing Date, the Trustee will release the Trust Assets in
accordance with the instructions of the [Sponsor] [or its Participating Affiliates].
Upon settlement (if any) on the Closing Date, the Trustee will deliver in accordance with
the instructions of the [Sponsor] the securities representing the regular and residual interests in
the Ginnie Mae REMIC Trust 20_-_ (the “REMIC Securities”), and the Trustee thereupon will
hold the Trust Assets in the name of and solely on behalf of the Ginnie Mae REMIC Trust 20__
__.
*
*
*
*
*
II-7-2
Unless otherwise instructed by the Sponsor, if any distributions on the Trust Assets are
received by the Trustee prior to settlement on the Closing Date, the Trustee will remit such
distributions to the Sponsor.
Very Truly Yours,
[TRUSTEE], as Trustee
By: ________________
Its: _______________
cc:
[Accountants’ Name]
[Accountants’ Address]
II-7-3
FORM OF ISSUANCE STATEMENT FOR REMIC AND MX TRANSACTIONS
ISSUANCE
STATEMENT
[Trustee]
Ginnie Mae REMIC Trust 20[ ]-[ ] [and Ginnie Mae MX Trust 20[ ] - [ ]]
The Sponsor hereby instructs the Trustee, on behalf of the Ginnie Mae REMIC Trust
[and MX Trust], to authorize the issuance of the Securities identified in Schedule[s] A[-1, A-2
and A-3] ([collectively,]the “Schedule”) in book-entry form through the facilities of the BookEntry Depository for the account of the Sponsor on the Closing Date. The Securities shall be
issued in the denominations specified in the Schedule[s] under the column designated as
“Denomination (or “Par Amount”) to be issued at Closing.” Capitalized terms used herein and
not otherwise defined shall be given the meanings assigned to them in the Trust Agreement,
dated as of [ ], 20[ ], by and between the Sponsor and the Trustee.
The undersigned acknowledges that the Schedule[s] accurately describe[s] the Securities
to be issued in book-entry form at closing.
[Sponsor]
By:
Its:
[NOTE TO TRUST COUNSEL: The Issuance Statement must be provided to the
Trustee no later than the Pool Wire Date, which is generally two Business Days prior to closing.]
II-8-1
SCHEDULE A[-1]: REMIC CLASSES
CLASS
DENOMINATION (OR
“PAR AMOUNT”) TO BE
ISSUED AT CLOSING
MAXIMUM
CLASS PRINCIPAL (OR
NOTIONAL) BALANCE
MINIMUM
DENOMINATION
CUSIP
†
†
________________________________
[†
Notional balance.]
2
II-8-2
[SCHEDULE A-2: MODIFIABLE CLASSES]
CLASS
DENOMINATION (OR
“PAR AMOUNT”) TO BE
ISSUED AT CLOSING
MAXIMUM
CLASS PRINCIPAL (OR
NOTIONAL) BALANCE
MINIMUM
DENOMINATION
CUSIP
†
†
_______________________________
[†
Notional balance.]
3
II-8-3
[SCHEDULE A-3: MX CLASSES]
CLASS
DENOMINATION (OR
“PAR AMOUNT”) TO
BE ISSUED AT
CLOSING
MAXIMUM
CLASS PRINCIPAL (OR
NOTIONAL) BALANCE
MINIMUM
DENOMINATION
CUSIP
†
†
_______________________________
[†
Notional balance.]
4
II-8-4
FORM OF TRANSACTION OPINION OF
TRUST COUNSEL
Pursuant to the Sponsor Agreement, Trust Counsel must deliver an opinion substantially
in the form as follows as a condition to closing. In general, this condition is met by the delivery
of an opinion in the following form, including the materials marked with square brackets “[].” If
an opinion includes the bracketed language, it need not include the language marked with braces
“{}.”
With Ginnie Mae’s approval prior to the execution of a Sponsor Agreement, however,
this condition to closing may be met by the delivery of two separate opinions: (1) a Sponsor’s
Opinion in the form in the Ginnie Mae Multiclass Securities Guide and (2) a Trust Counsel
opinion in the form as follows, but which opinion deletes the language in square brackets and
includes the language in braces.
II-9-1
FORM OF TRANSACTION OPINION OF
TRUST COUNSEL
FOR REMIC AND MX TRANSACTIONS
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
[Trustee]
[Sponsor]
Re:
Guaranteed [Multifamily] REMIC Pass-Through Securities
Ginnie Mae REMIC Trust 20_ [and]
[Guaranteed [Multifamily] Grantor Trust Pass-Through Securities
Ginnie Mae MX Trust 20_]
Ladies and Gentlemen:
We have acted as trust counsel in connection with the issuance, by the Ginnie Mae
REMIC Trust 20_-_ (the “[REMIC] Trust”), established pursuant to a trust agreement (the
“[REMIC] Trust Agreement”), dated as of ____________ __, 20_, by and between
___________________, as trustee of the [Trust] [Trusts] (the “Trustee”), and
_____________________, a(n) ________________ (the “Sponsor”), and incorporating by
reference the Standard Trust Provisions for REMIC Trusts, April 1, 2008 Edition[, as amended
through _________ __, 20_] (the “[REMIC] Standard Trust Provisions”) [and the Ginnie Mae
MX Trust 20_-_ (the “Grantor Trust” and, together with the REMIC Trust, the “Trusts”)
established pursuant to a trust agreement (the “MX Trust Agreement” and, together with the
REMIC Trust Agreement, the “Trust Agreements”) dated as of ________ __, 20_, by and
between the Trustee and the Sponsor and incorporating by reference the Standard Trust
Provisions for Ginnie Mae MX Trusts, April 1, 2008 Edition (the “MX Standard Trust
Provisions” and, together with the REMIC Standard Trust Provisions, the “Standard Trust
Provisions”)], of approximately $_____________ aggregate principal amount of securities (the
“Securities”) guaranteed by the Government National Mortgage Association (“Ginnie Mae”).
The Securities are being sold to the Sponsor pursuant to the Trust Agreement[s]. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to them in the
glossary contained in the Ginnie Mae Multiclass Securities Guide currently in effect (the
“Glossary”).
2
II-9-2
The Base Offering Circular [for Guaranteed [Multifamily] REMIC Pass-Through
Securities], dated ___________ __, 20_, and the related Offering Circular Supplement, dated
_______________ __, 20_ (collectively, the “Offering Circular”), were prepared in connection
with the offering of the Securities.
The assets of the [REMIC] Trust consist primarily of [Trust MBS] [,] [Ginnie Mae
Multifamily Certificates,] [Underlying SMBS Securities,] [Underlying Callable Securities] [and]
[an] [Underlying Certificate[s]] ([collectively,] the “Trust Assets”) sold to the [REMIC] Trust by
the Sponsor. In connection with the issuance of the Securities, Ginnie Mae is guaranteeing the
payment of the full amount of principal and interest on each Security pursuant to the Guaranty
Agreement and Section 3 of the Standard Sponsor Provisions, _______ 1, 20_ Edition (the
“Standard Sponsor Provisions”).
In connection with the foregoing, we have examined the following documents:
(a)
a copy of the Standard Trust Provisions;
(b)
[a] signed [copy] [copies] of the Trust Agreement[s], which incorporate[s] by
reference the Standard Trust Provisions;
(c)
a copy of the Standard Sponsor Provisions;
(d)
a signed copy of the sponsor agreement, dated __________ __, 20_, between
Ginnie Mae and the Sponsor (the “Sponsor Agreement”), which incorporates by reference the
Standard Sponsor Provisions;
(e)
a copy of the Offering Circular;
(f)
a copy of the Glossary;
(g)
[a] specimen[s] [of [the] [each] Class of Residual Securities] [of the Residual
Security]; [and]
(h)
the Issuance Statement[;][.] [and]
{(i)
the opinion of counsel of the Sponsor, delivered in connection with this
transaction (the “Sponsor’s Opinion”)[;][.] [and]}
[(j)
the Offering Circular Supplement[s] for the Ginnie Mae REMIC Pass-Through
Securities [and MX Securities], Ginnie Mae REMIC Trust[s] _____-___ [and _____-___] (the
“Underlying Certificate Disclosure Document[s]”).]
[(k)
the Articles of Incorporation and Bylaws (collectively, the “Constituent
Documents”) of the Sponsor, together with good standing certificates with respect to the
Sponsor; and
(l)
the resolutions of the Sponsor pertaining to the subject transactions, certified by
the Secretary or Assistant Secretary of the Sponsor.]
3
II-9-3
The Trust Agreement[s] and the Sponsor Agreement are collectively referred to herein as
the “Agreements.”
For purposes of the opinions expressed below, we have assumed (a) the authenticity of all
documents submitted to us as originals, (b) the conformity to the originals of all documents
submitted as certified or photostatic copies and the authenticity of the originals of such copies,
(c) the genuineness of signatures not witnessed by us, (d) the legal capacity of natural persons
[and] (e) the due authorization, execution and delivery of all documents by all parties and the
validity and binding effect thereof (other than [the due authorization, execution and delivery of
documents by the Sponsor and] the validity and binding effect of documents upon the Sponsor)
[and (f) the accuracy and completeness in all material respects of the Underlying [Certificate]
[SMBS Security] Disclosure Document[s]].
As to factual matters, we have relied upon representations included in the aforementioned
documents and in other documents delivered at the closing, upon certificates of officers of the
Sponsor and upon certificates of public officials. In addition, we have obtained from officers
and employees of the parties described above such other certificates and assurances, and we have
examined such records, other documents and questions of law, as we have considered necessary
or appropriate for purposes of rendering this opinion letter. [Whenever the phrase “to our
knowledge” is used herein, it refers to the actual knowledge of the attorneys of this firm involved
in the representation for this transaction.]
The enforceability of the Agreements against the parties thereto is subject to the
provisions of bankruptcy, insolvency, reorganization, or moratorium laws or laws relating to or
affecting the rights of creditors generally and to principles of equity, whether considered at law
or in equity, except that Ginnie Mae may enforce the Agreements against the parties thereto
notwithstanding any bankruptcy, insolvency, reorganization or moratorium law, or any law
relating to or affecting the rights of creditors generally, to the extent that such law is preempted
by the authorizing law for the Ginnie Mae Multiclass Securities Program set forth at 12 U.S.C. §
1721(g)(3)(E)(iv).
We do not purport to express an opinion as to the laws of any jurisdiction other than the
[State of incorporation of the Sponsor, the] State of New York and the United States of America.
I.
Based upon, and subject to, the foregoing and such other documents and information as
we have considered necessary for the purposes hereof, we are of the opinion that:
[1.
The Sponsor has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation.
2.
The Sponsor has the corporate power and authority to enter into the transactions
contemplated by the Agreements.
3.
The Sponsor is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction that requires such qualification wherein it owns
4
II-9-4
or leases material properties, except where the failure so to qualify would not have a material
adverse effect on such company’s ability to perform its obligations under the Agreements.
4.
To our knowledge, there is no action, suit, proceeding or investigation pending or
threatened against the Sponsor that reasonably could be expected to affect adversely (a) the
Sponsor’s ability to carry on its business substantially as now conducted; (b) the transfer of the
Trust Assets; (c) the issuance of the Securities or (d) the execution, delivery, performance or
enforceability of the Agreements, including the Sponsor’s performance under any
indemnification provisions.]
{1.
The Sponsor’s Opinion is satisfactory in form and scope to us, and we believe that
you may properly rely on it.}
{2}
[5.]
Assuming the due authorization, execution and delivery of the Trust
Agreement[s] by the [Trustee] {parties thereto}, the provisions of the Trust Agreement[s] are
sufficient to establish [a] trust[s] under and pursuant to the governing laws of the Trust
Agreement[s].
{3}
[6.]
[Each of the Agreements has been duly executed and delivered by an authorized
signatory of the Sponsor, and] {Assuming the due authorization, execution and delivery of the
Agreements by the parties thereto,} each constitutes a valid, legal and binding agreement of the
Sponsor, enforceable against the Sponsor in accordance with its respective terms.
{4}
[7.]
The Securities conform in all material respects to the descriptions thereof
contained in the Offering Circular. The Securities that are Book-Entry Securities [or
Uncertificated Securities] have been duly and validly authorized and delivered by the Trustee in
accordance with the [related] Trust Agreement and are duly and validly issued and entitled to the
benefits of such Trust Agreement. Assuming the due authorization of the officer of the Trustee
who executed the [Certificated Securities] [Residual Securit[y][ies]] on behalf of the [REMIC]
Trust, such Securit[y][ies] [has] [have] been duly and validly authorized, executed and delivered
by such Trust in accordance with the [REMIC] Trust Agreement and will, when authenticated as
specified in the [REMIC] Trust Agreement, be duly and validly issued and entitled to the
benefits [of [the] [such] Trust Agreement].
{5}
[8.]
The Securities are exempt from the registration requirements of the Securities Act
of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder,
and the Securities constitute “exempted securities” under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated thereunder.
{6}
[9.]
The Trust Agreement[s] is [are] not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the trust fund[s] created thereby [is] [are] not required to
be registered under the Investment Company Act of 1940, as amended.
{7}
[10.] No consent, approval, authorization or order of (a) any ____________ State or
federal court or (b) any ______________ State or federal governmental agency or body is
required for the consummation by the Trust[s] of the transactions contemplated by the
Agreements; provided, however, that we express no opinion with respect to requirements under
local and state securities laws, including but not limited to such as may be required under the
5
II-9-5
state securities or blue sky laws, of any jurisdiction in connection with the distribution of the
Securities.
{8}
[11.] The statements set forth under the headings “Terms Sheet” and “Description of
the Securities” in the Offering Circular Supplement, and under the headings “Description of the
Securities” and “The Trusts” in the Base Offering Circular, insofar as such statements together
purport to summarize certain provisions of the Agreements, provide a fair summary of such
provisions.
{9}
[12.] The statements in the Offering Circular Supplement under the headings “ERISA
Matters” and “Legal Investment Considerations,” and in the Base Offering Circular under the
headings “ERISA Considerations” and “Legal Investment Considerations,” insofar as they
describe federal statutes and regulations or constitute legal conclusions with respect thereto, have
been prepared or reviewed by us, and such statements fairly summarize such statutes and
regulations.
{10} [13.] The Regular [and MX] Securities qualify as “guaranteed governmental mortgage
pool certificates” within the meaning of 29 C.F.R. § 2510.3-101(i)(2).
II.
We have participated in various conferences with [officers and directors of] [appropriate
representatives of] the Sponsor, representatives of Ginnie Mae, representatives of [Hunton &
Williams LLP] [and Harrell and Chambliss LLP] [Thacher Proffitt & Wood LLP] [and Joseph C.
Reid P.A.], counsel to Ginnie Mae and [appropriate representatives of] the Accountants. At
those conferences, the contents of the Offering Circular were discussed and revised. [Since the
dates of those conferences, we have inquired of appropriate representatives whether there has
been any material change in the affairs of the Sponsor.]
Because of the inherent limitations in the independent verification of factual matters, we
are not passing upon, and do not assume any responsibility for, and make no representation that
we have independently verified, the accuracy, completeness or fairness of the statements
contained in the Offering Circular, except as specifically set forth in paragraphs [11 and 12]
{8 and 9} of Part I of our opinion above. Also, we do not express any opinion or belief as to the
financial statements or other numerical, financial or statistical information contained in the
Offering Circular. However, subject to the foregoing, we advise you that nothing has come to
our attention that would lead us to believe that the Offering Circular, as of the date thereof and at
the date hereof, contained or contains any untrue statement of a material fact or omitted or omits
to state any material fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading (except that we express no
opinion with respect to the numerical, financial and statistical data contained in the Offering
Circular).
We express no opinion as to any matter other than as expressly set forth herein, and no
other opinion is to be, or may be, inferred or implied herefrom. This opinion is given as of the
date hereof and is based on facts and conditions presently known to us and laws and regulations
currently in effect, and we do not undertake, and hereby disclaim, any obligation to advise you of
any change in any matters set forth herein.
6
II-9-6
This opinion letter is being furnished to you solely for your benefit and may not be relied
upon by, nor may copies be delivered to, any person without our prior written consent.
U.S. Treasury Circular 230 Notice
To ensure compliance by this law firm with requirements imposed by the Internal
Revenue Service, we inform you that (a) this advice was not intended or written to be used,
and cannot be used, for the purpose of avoiding United States federal tax penalties, (b) this
advice was written to support the promotion or marketing of the transactions or matters
addressed herein and (c) any taxpayer to whom such transactions or matters are being
promoted, marketed or recommended should seek advice based on its particular
circumstances from an independent tax advisor.
Very truly yours,
7
II-9-7
FORM OF OPINION OF SPONSOR
FOR REMIC AND MX TRANSACTIONS
_______________, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
[Trustee]
[Sponsor]
Re:
Guaranteed [Multifamily] REMIC Pass-Through Securities
Ginnie Mae REMIC Trust 20_ [and]
[Guaranteed [Multifamily] Grantor Trust Pass-Through Securities
Ginnie Mae MX Trust 20_]
Ladies & Gentlemen:
I am [employed as] [the] [Internal] [Associate General] [General] counsel [by] [of]
_____________________________ (the “Sponsor”) and, in such capacity, have acted as counsel
to the Sponsor, a ________, in connection with the issuance, by the Ginnie Mae REMIC Trust
20_ (the “[REMIC] Trust”), established pursuant to a trust agreement (the “[REMIC] Trust
Agreement”) dated as of _______, 20_, by and between ______________________________, as
trustee of the Trust[s] (the “Trustee”), and the Sponsor, and incorporating by reference the
Standard Trust Provisions for REMIC Trusts, _________, 20_ Edition, [as amended through
___________ __, 20_,] [and by the Ginnie Mae MX Trust 20_ (the “Grantor Trust” and together
with the REMIC Trust, the “Trusts”), established pursuant to a trust agreement (the “Grantor
Trust Agreement” and, together with the REMIC Trust Agreement, the “Trust Agreements”),
dated as of __________ __, 20_, by and between the Trustee and the Sponsor, and incorporating
by reference the Standard Trust Provisions for Ginnie Mae MX Trusts, __________, __, 20_
Edition [; as amended through __________ __, 20_], of approximately $___________ aggregate
principal amount of securities (the “Securities”) guaranteed by the Government National
Mortgage Association (“Ginnie Mae”). The Securities are being sold to the Sponsor pursuant to
the Trust Agreement[s]. Capitalized terms not otherwise defined herein shall have the meanings
assigned to them in the glossary contained in the Ginnie Mae Multiclass Securities Guide
currently in effect.
II-10-1
In connection with this opinion, I [or others under my supervision] have examined the
Trust Agreement[s] and a sponsor agreement (the “Sponsor Agreement” and, together with the
Trust Agreement[s], the “Agreements”) dated as of _______, 20_, by and between Ginnie Mae
and the Sponsor and incorporating by reference the Standard Sponsor Provisions, ________ __,
20_ Edition[, as amended through ___________ __, 20_]. I [or others under my supervision]
have also examined and am familiar with originals or copies, certified or otherwise identified to
my satisfaction, of such documents as I have deemed necessary or appropriate as a basis for the
opinions set forth below.
In my examination, I have assumed the genuineness of all signatures, the legal capacity
of natural persons, the conformity to original documents of all documents submitted to me as
certified or photostatic copies, the authenticity of the originals of such copies, and the due
authorization, execution and delivery of all documents by all parties and the validity and binding
effect thereof (other than the due authorization, execution and delivery of documents by the
Sponsor as to which I express an opinion herein). As to any fact material to this opinion that I
did not independently establish or verify, I have relied upon statements and representations of
officers and other representatives of the Sponsor. Whenever the phrase “to my knowledge” is
used herein, it refers to the actual knowledge of the attorneys employed by the Sponsor who are
involved in the representation for this transaction.
I am admitted to the Bar of the State of ________, and I express no opinion as to the laws
of any jurisdiction other than the laws of the State of ______________, [the [corporate] [limited
liability company] laws of the State of ________________] and, to the extent specifically
referred to herein, the laws of the United States of America. Based upon and subject to the
foregoing, I am of the opinion that:
1.
The Sponsor has been duly incorporated and is validly existing as a [corporation]
[limited liability company] in good standing under the laws of the jurisdiction of
its [incorporation] [organization].
2.
The Sponsor has the [corporate] power and authority to enter into the transactions
and perform the obligations contemplated by the Agreements.
3.
The Sponsor is duly qualified to do business as a foreign [corporation] [limited
liability company] and is in good standing under the laws of each jurisdiction that
requires such qualification wherein it owns or leases material properties, except
where the failure so to qualify would not have a material adverse effect on the
Sponsor’s ability to perform its obligations under the Agreements.
4.
There is no action, suit, proceeding or investigation pending or, to my knowledge,
threatened against the Sponsor that reasonably could be expected to affect
adversely (a) the Sponsor’s ability to carry on its business substantially as now
conducted, (b) the transfer of the Trust Assets, (c) the transfer of the Securities or
(d) the execution, delivery, performance or enforceability of the Agreements,
including the Sponsor’s performance under any indemnification provisions.
5.
The Agreements have been duly executed and delivered by the Sponsor.
2
II-10-2
6.
No consent, approval, authorization or order of (a) any ____________ State or
federal court or (b) any ______________ State or federal governmental agency or
body is required for the consummation by the Sponsor of the transactions
contemplated by the Agreements, except for those that have been obtained by the
Sponsor and are in full force and effect; provided, however, that I express no
opinion with respect to requirements under federal or state securities or blue sky
laws, of any jurisdiction in connection with the distribution of the Securities.
I express no opinion as to any matter other than as expressly set forth herein, and no other
opinion is to be, or may be, inferred or implied herefrom. This opinion is given as of the date
hereof and is based on facts and conditions presently known to me and laws and regulations
currently in effect, and I do not undertake, and hereby disclaim, any obligation to advise you of
any change in any matters set forth herein.
I consent to reliance upon this opinion letter by Ginnie Mae for the purpose of complying
with its requirements in connection with the Sponsor Agreement and by [Trust Counsel] in
connection with the delivery of its opinion related to the Agreements. Except as provided in the
preceding sentence, this opinion letter may not be relied upon by, nor may copies be delivered to,
any person without my prior written consent.
Very truly yours,
3
II-10-3
FORM OF TAX OPINION OF
TRUST COUNSEL FOR REMIC AND MX TRANSACTIONS
[SINGLE REMIC]
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
Ginnie Mae REMIC Trust 20_
c/o [Trustee]
[Trustee]
[Sponsor]
Ginnie Mae REMIC Trust 20 -_
Certain Tax Matters
Ladies and Gentlemen:
We have acted as trust counsel in connection with the formation of the Ginnie Mae
REMIC Trust 20__ (the “Trust”), established pursuant to a trust agreement (the “Trust
Agreement”), dated as of ____________ __, 20__, by and between ___________________, as
trustee of the Trust (the “Trustee”), and __________________, a(n) ________________
[corporation] [limited liability company] (the “Sponsor”), and incorporating by reference the
Standard Trust Provisions for REMIC Trusts, ____________, 20__ Edition[, as amended
through __________, 20__] (the “Standard Trust Provisions”), and the issuance of
approximately $_____________ aggregate [principal] [notional] amount of Guaranteed
[Multifamily] REMIC Pass-Through Securities (the “Securities”). The Securities consist of the
Class R Securities (the “Residual Securities”) and [each] [the] other Class of Securities (the
“Regular Securities”) listed on the front cover of the Offering Circular Supplement dated
_____________ __, 20__ (the “Offering Circular Supplement”). The Securities are being sold
pursuant to the [Multifamily] Base Offering Circular dated ___________________ __, 20__, and
the Offering Circular Supplement (together, the “Offering Circular”). Capitalized terms used but
not defined herein shall have the meanings assigned to them in the glossary contained in the
Ginnie Mae Multiclass Securities Guide currently in effect or in the Trust Agreement.
II-11-1
The assets of the Trust consist primarily of certain [Trust MBS] [,] [and] [Underlying
Callable Securities] [and] [an] [Underlying Certificate[s]] acquired from the Sponsor and certain
accounts. Section 1.03 of the Standard Trust Provisions[, as modified by the Trust Agreement]
identifies [a pool] [two pools] of such assets (the “Asset Pool[s]”) as the assets that will comprise
[each of] the Trust REMIC[s]. Pursuant to the Trust Agreement, an election will be made to
treat [the] [each] Asset Pool as [a] [separate] real estate mortgage investment conduit[s]
(“REMIC[s]”) under the Internal Revenue Code of 1986, as amended (the “Code”).
We have reviewed the originals or copies of: (i) the Trust Agreement, including the
Standard Trust Provisions; (ii) the Sponsor Agreement dated as of ____________ __, 20__, by
and between the Sponsor and Ginnie Mae, including the Standard Sponsor Provisions,
_________, 20__ Edition[, as amended through _________, 20__,]; (iii) the Guaranty
Agreement dated as of _______________ __, 20__; [and] (iv) the Offering Circular [and (v) the
Offering Circular Supplement[s] and related Offering Circular for Ginnie Mae REMIC [and MX]
Trust 20__-__ [and Ginnie Mae REMIC [and MX] Trust 20__-__] [and Ginnie Mae Callable
Trust 20__-__] (the “Underlying Certificate Offering Circular[s]”)]. We also have reviewed
such other documents relating to the transaction and made such other factual and legal inquiries
as we have considered necessary for purposes of the opinions given below. [We have assumed
the accuracy and completeness in all material respects of the Underlying Certificate Offering
Circular[s] and that [the] [each] Underlying Certificate will, at all relevant times, constitute [,
directly or indirectly,] [a] [either] “regular interest[s]” in a REMIC [or grantor trust interests in
respect of “regular interest[s]” in a REMIC].]
[In rendering our opinions, we have also relied, without independent verification, on a
letter from the Sponsor, dated __________ __, 20__, representing the belief of the Sponsor that
there are various economically reasonable circumstances under which the holders of the Call
Class of Ginnie Mae Callable Trust 20__-C_ would not exercise their rights to direct the
redemption of the Callable Class of Ginnie Mae Callable Trust 20__-C_.]
Based on the foregoing, we are of the opinion that, with respect to this transaction, the
statements and legal conclusions contained in the Offering Circular under the caption “Certain
Federal Income Tax Consequences” are correct in all material respects and the discussion
thereunder does not omit any material provision with respect to the matters covered. Also based
on the foregoing and subject to the qualifications stated herein, we are of the further opinion that,
if the Trustee, the Sponsor, Ginnie Mae, and the other parties to the documents referenced in the
foregoing paragraph comply (without waiver) with all of the provisions of such documents and
an election properly is made and filed for the Asset Pool to be treated as a REMIC pursuant to
section 860D of the Code: (i) [the Asset Pool will qualify as a REMIC] [each of the Asset Pools
will qualify as a separate REMIC], (ii) the Regular Securities will constitute “regular interests”
in [that] [the related Trust] REMIC[s] on the date of issuance thereof and thereafter, and (iii) the
Residual Securities will constitute the “residual interest” in [that REMIC] [each of the Trust
REMICs] on the date of issuance thereof and thereafter, in each case assuming continuing
compliance with the REMIC provisions of the Code and any regulations thereunder.
You should be aware that the above opinions and the discussion contained in the Offering
Circular under the caption “Certain Federal Income Tax Consequences” represent conclusions as
to the application of existing law to the transaction described herein. There can be no assurance
2
II-11-2
that existing law will not change or that contrary positions will not be taken by the Internal
Revenue Service.
No opinion has been sought and none has been given concerning the tax consequences of
the transaction described herein or of the acquisition, ownership, or disposition of the Securities
under the laws of any state or locality.
The opinions expressed herein are solely for the information and use of the addressees
and may not be relied upon or otherwise used for any purpose by any other person without our
express written consent.
U.S. Treasury Circular 230 Notice
To ensure compliance by this law firm with requirements imposed by the Internal
Revenue Service, we inform you that (a) this advice was not intended or written to be used,
and cannot be used, for the purpose of avoiding United States federal tax penalties, (b) this
advice was written to support the promotion or marketing of the transactions or matters
addressed herein and (c) any taxpayer to whom such transactions or matters are being
promoted, marketed or recommended should seek advice based on its particular
circumstances from an independent tax advisor.
Very truly yours,
3
II-11-3
FORM OF TAX OPINION OF
TRUST COUNSEL FOR REMIC AND MX TRANSACTIONS
[DOUBLE REMIC with CLASS RR]
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
Ginnie Mae REMIC Trust 20_
c/o [Trustee]
[Trustee]
[Sponsor]
Ginnie Mae REMIC Trust 20 - _
Certain Tax Matters
Ladies and Gentlemen:
We have acted as trust counsel in connection with the formation of the Ginnie Mae
REMIC Trust 20_ (the “Trust”), established pursuant to a trust agreement (the “Trust
Agreement”), dated as of ____________ __, 20_, by and between ___________________, as
trustee of the Trust (the “Trustee”), and __________________, a(n) ________________
[corporation] [limited liability company] (the “Sponsor”), and incorporating by reference the
Standard Trust Provisions for REMIC Trusts, ____________, 20_ Edition[, as amended through
__________, 20_] (the “Standard Trust Provisions”), and the issuance of approximately
$_____________ aggregate [principal] [notional] amount of Guaranteed [Multifamily] REMIC
Pass-Through Securities (the “Securities”). The Securities consist of the Class RR Securities
(the “Residual Securities”) and each other Class of Securities (the “Regular Securities”) listed on
the front cover of the Offering Circular Supplement dated _____________ __, 20_ (the
“Offering Circular Supplement”). The Securities are being sold pursuant to the [Multifamily]
Base Offering Circular dated ___________________ __, 20_, and the Offering Circular
Supplement (together, the “Offering Circular”). Capitalized terms used but not defined herein
shall have the meanings assigned to them in the glossary contained in the Ginnie Mae Multiclass
Securities Guide currently in effect or in the Trust Agreement.
II-12-1
The assets of the Trust consist primarily of certain [Trust MBS] [Ginnie Mae Multifamily
Certificates][,] [and] [Underlying Callable Securities] [and] [[an] Underlying Certificate[s]]
[Underlying SMBS Securities] acquired from the Sponsor and certain accounts. Section 1.03 of
the Standard Trust Provisions identifies [two] [three] pools of such assets (the “Pooling REMIC
Assets” and the “Issuing REMIC Assets”) as the assets that will comprise [the] [two] Pooling
REMIC[s] and the Issuing REMIC, respectively. Pursuant to the Trust Agreement, elections will
be made to treat [each group of] the Pooling REMIC Assets and the Issuing REMIC Assets as
separate real estate mortgage investment conduits (“REMICs”) under the Internal Revenue Code
of 1986, as amended (the “Code”).
We have reviewed the originals or copies of: (i) the Trust Agreement, including the
Standard Trust Provisions; (ii) the Sponsor Agreement dated as of ____________ __, 20_, by
and between the Sponsor and Ginnie Mae, including the Standard Sponsor Provisions,
____________, 20_ Edition[, as amended through __________, 20_] ; (iii) the Guaranty
Agreement dated as of _______________ __, 20_; [and] (iv) the Offering Circular [and (v) the
Offering Circular Supplement[s] and related Offering Circular[s] for Ginnie Mae [REMIC Trust
20_-__] [SMBS Trust __] [and Ginnie Mae REMIC Trust 20_-__] [and Ginnie Mae Callable
Trust 20__-__] (the “Underlying [Certificate] [SMBS Security] Offering Circular[s]”)]. We also
have reviewed such other documents relating to the transaction and made such other factual and
legal inquiries as we have considered necessary for purposes of the opinions given below. [We
have assumed the accuracy and completeness in all material respects of the Underlying
Certificate Offering Circular[s] and that [the] [each] Underlying Certificate will, at all relevant
times, constitute [, directly or indirectly,] a “regular interest” in a REMIC.] [We have assumed
the accuracy and completeness in all material respects of the Underlying SMBS Security
Offering Circular].]
[In rendering our opinions, we have also relied, without independent verification, on a
letter from the Sponsor, dated __________ __, 20_, representing the belief of the Sponsor that
there are various economically reasonable circumstances under which the holders of the Call
Class of Ginnie Mae Callable Trust 20_-C_ would not exercise their rights to direct the
redemption of the Callable Class of Ginnie Mae Callable Trust 20_-C_.]
Based on the foregoing, we are of the opinion that, with respect to this transaction, the
statements and legal conclusions contained in the Offering Circular under the caption “Certain
Federal Income Tax Consequences” are correct in all material respects and the discussion
thereunder does not omit any material provision with respect to the matters covered. Also based
on the foregoing and subject to the qualifications stated herein, we are of the further opinion that,
if the Trustee, the Sponsor, Ginnie Mae, and the other parties to the documents referenced in the
foregoing paragraph comply (without waiver) with all of the provisions of such documents and
elections properly are made and filed for [each of] the Pooling REMIC Assets and the Issuing
REMIC Assets to be treated as separate REMICs pursuant to section 860D of the Code: (i) [each
of] the Pooling REMIC Assets and the Issuing REMIC Assets will each qualify as a separate
REMIC, (ii) the Regular Securities will constitute the “regular interests” in the Issuing REMIC
on the date of issuance thereof and thereafter, (iii) [each of] the Pooling REMIC Subaccounts
will represent the “regular interests” in [each of] the Pooling REMIC[s] on the date of creation
thereof and thereafter, and (iv) the Residual Securities will constitute the “residual interest” in
[both] [each of] the Pooling REMIC[s] and the Issuing REMIC on the date of issuance thereof
2
II-12-2
and thereafter, in each case assuming continuing compliance with the REMIC provisions of the
Code and any regulations thereunder.
You should be aware that the above opinions and the discussion contained in the Offering
Circular under the caption “Certain Federal Income Tax Consequences” represent conclusions as
to the application of existing law to the transaction described herein. There can be no assurance
that existing law will not change or that contrary positions will not be taken by the Internal
Revenue Service.
No opinion has been sought and none has been given concerning the tax consequences of
the transaction described herein or of the acquisition, ownership, or disposition of the Securities
under the laws of any state or locality.
The opinions expressed herein are solely for the information and use of the
addressees and may not be relied upon or otherwise used for any purpose by any other person
without our express written consent.
U.S. Treasury Circular 230 Notice
To ensure compliance by this law firm with requirements imposed by the Internal
Revenue Service, we inform you that (a) this advice was not intended or written to be used,
and cannot be used, for the purpose of avoiding United States federal tax penalties, (b) this
advice was written to support the promotion or marketing of the transactions or matters
addressed herein and (c) any taxpayer to whom such transactions or matters are being
promoted, marketed or recommended should seek advice based on its particular
circumstances from an independent tax advisor.
Very truly yours,
3
II-12-3
FORM OF TAX OPINION OF
TRUST COUNSEL FOR REMIC AND MX TRANSACTIONS
[DOUBLE REMIC with CLASS RI and CLASS RP]
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
Ginnie Mae REMIC Trust 20_
c/o [Trustee]
[Trustee]
[Sponsor]
Ginnie Mae REMIC Trust 20_
Certain Tax Matters
Ladies and Gentlemen:
We have acted as trust counsel in connection with the formation of the Ginnie Mae
REMIC Trust 20_ (the “Trust”), established pursuant to a trust agreement (the “Trust
Agreement”), dated as of ____________ __, 20_, by and between___________________, as
trustee of the Trust (the “Trustee”), and __________________, a(n) ________________
[corporation] [limited liability company] (the “Sponsor”), and incorporating by reference the
Standard Trust Provisions for REMIC Trusts, ___________, 20_ Edition[, as amended through
___________, 20_] (the “Standard Trust Provisions”), and the issuance of approximately
$_____________ aggregate [principal] [notional] amount of Guaranteed [Multifamily] REMIC
Pass-Through Securities (the “Securities”). The Securities consist of the Class RI and Class RP
Securities (the “Residual Securities”) and each other Class of Securities (the “Regular
Securities”) listed on the front cover of the Offering Circular Supplement dated _____________
__, 20_ (the “Offering Circular Supplement”). The Securities are being sold pursuant to the
[Multifamily] Base Offering Circular dated ___________________ __, 20_, and the Offering
Circular Supplement (together, the “Offering Circular”). Capitalized terms used but not defined
herein shall have the meanings assigned to them in the glossary contained in the Ginnie Mae
Multiclass Securities Guide currently in effect or in the Trust Agreement.
II-13-1
The assets of the Trust consist primarily of certain [Trust MBS] [Ginnie Mae Multifamily
Certificates][,] [and] [Underlying Callable Securities] [and] [ [an] Underlying Certificate[s]]
[Underlying SMBS Securities] acquired from the Sponsor and certain accounts. Section 1.03 of
the Standard Trust Provisions identifies [two] [three] pools of such assets (the “Pooling REMIC
Assets” and the “Issuing REMIC Assets”) as the assets that will comprise [the] [two] Pooling
REMIC[s] and the Issuing REMIC, respectively. Pursuant to the Trust Agreement, elections will
be made to treat [each group of] the Pooling REMIC Assets and the Issuing REMIC Assets as
separate real estate mortgage investment conduits (“REMICs”) under the Internal Revenue Code
of 1986, as amended (the “Code”).
We have reviewed the originals or copies of: (i) the Trust Agreement, including the
Standard Trust Provisions; (ii) the Sponsor Agreement dated as of ____________ __, 20_, by
and between the Sponsor and Ginnie Mae, including the Standard Sponsor Provisions,
____________, 20_ Edition[, as amended through __________, 20_] ; (iii) the Guaranty
Agreement dated as of _______________ __, 20_; [and] (iv) the Offering Circulars [and (v) the
Offering Circular Supplement[s] and related Offering Circular[s] for Ginnie Mae [REMIC Trust
20_-_] [SMBS Trust _____] [and Ginnie Mae Callable Trust 20__-__] (the “Underlying
Certificate [SMBS Security] Offering Circular[s]”)]. We also have reviewed such other
documents relating to the transaction and made such other factual and legal inquiries as we have
considered necessary for purposes of the opinions given below. [We have assumed the accuracy
and completeness in all material respects of the Underlying Certificate Offering Circular[s] and
that [the] [each] Underlying Certificate will, at all relevant times, constitute [, directly or
indirectly,] a “regular interest” in a REMIC.] [We have assumed the accuracy and completeness
in all material respects of the Underlying SMBS Security Offering Circular.]
[In rendering our opinions, we have also relied, without independent verification, on a
letter from the Sponsor, dated __________ __, 20_, representing the belief of the Sponsor that
there are various economically reasonable circumstances under which the holders of the Call
Class of Ginnie Mae Callable Trust 20_-C_ would not exercise their rights to direct the
redemption of the Callable Class of Ginnie Mae Callable Trust 20_-C_.]
Based on the foregoing, we are of the opinion that, with respect to this transaction, the
statements and legal conclusions contained in the Offering Circular under the caption “Certain
Federal Income Tax Consequences” are correct in all material respects and the discussion
thereunder does not omit any material provision with respect to the matters covered. Also based
on the foregoing and subject to the qualifications stated herein, we are of the further opinion that,
if the Trustee, the Sponsor, Ginnie Mae, and the other parties to the documents referenced in the
foregoing paragraph comply (without waiver) with all of the provisions of such documents and
elections properly are made and filed for [each of] the Pooling REMIC Assets and the Issuing
REMIC Assets to be treated as separate REMICs pursuant to section 860D of the Code: (i) [each
of] the Pooling REMIC Assets and the Issuing REMIC Assets will each qualify as a separate
REMIC, (ii) the Regular Securities will constitute the “regular interests,” and the Class RI
Securities will constitute the “residual interest,” in the Issuing REMIC on the date of issuance
thereof and thereafter, (iii) [each of] the Pooling REMIC Subaccounts will constitute the “regular
interests,” and the Class RP Securities will constitute the “residual interest,” in [each of] the
Pooling REMIC[s] on the date of the creation or issuance thereof and thereafter, in each case
2
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assuming continuing compliance with the REMIC provisions of the Code and any regulations
thereunder.
You should be aware that the above opinions and the discussion contained in the Offering
Circular under the caption “Certain Federal Income Tax Consequences” represent conclusions as
to the application of existing law to the transaction described herein. There can be no assurance
that existing law will not change or that contrary positions will not be taken by the Internal
Revenue Service.
No opinion has been sought and none has been given concerning the tax consequences of
the transaction described herein or of the acquisition, ownership, or disposition of the Securities
under the laws of any state or locality.
The opinions expressed herein are solely for the information and use of the
addressees and may not be relied upon or otherwise used for any purpose by any other person
without our express written consent.
U.S. Treasury Circular 230 Notice
To ensure compliance by this law firm with requirements imposed by the Internal
Revenue Service, we inform you that (a) this advice was not intended or written to be used,
and cannot be used, for the purpose of avoiding United States federal tax penalties, (b) this
advice was written to support the promotion or marketing of the transactions or matters
addressed herein and (c) any taxpayer to whom such transactions or matters are being
promoted, marketed or recommended should seek advice based on its particular
circumstances from an independent tax advisor.
Very truly yours,
3
II-13-3
FORM OF TAX OPINION OF
TRUST COUNSEL FOR REMIC AND MX TRANSACTIONS
[MX (GRANTOR) TRUST]
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
Ginnie Mae MX Trust 20_
c/o [Trustee]
[Trustee]
[Sponsor]
Ginnie Mae MX Trust 20_
Certain Tax Matters
Ladies and Gentlemen:
We have acted as trust counsel in connection with the formation of the Ginnie Mae MX
Trust 20_ (the “Trust”), established pursuant to a trust agreement (the “Trust Agreement”), dated
as of ____________ __, 20_, by and between___________________, as trustee of the Trust (the
“Trustee”), and __________________, a(n) ________________ [corporation] [limited liability
company] (the “Sponsor”), and incorporating by reference the Standard Trust Provisions for
Ginnie Mae MX Trusts, ____________, 20_ Edition [, as amended through __________, 20_]
(the “Standard Trust Provisions”), and the issuance of its Guaranteed [Multifamily] Grantor
Trust Pass-Through Securities (the “Securities”). The Securities consist of the Classes of
Securities listed on the front cover of the Offering Circular Supplement dated _________, 20___
(the “Offering Circular Supplement”) that are designated as Securities exchangeable for MX
Securities (the “Modifiable Securities”) and the Classes of Securities listed as MX Securities in
Schedule I to the Offering Circular Supplement (the “MX Securities”). The Securities are being
sold pursuant to the [Multifamily] Base Offering Circular dated ___________________ __, 20_,
and an Offering Circular Supplement (together, the “Offering Circular”). Capitalized terms used
but not defined herein shall have the meanings assigned to them in the glossary contained in the
Ginnie Mae Multiclass Securities Guide currently in effect or in the Trust Agreement.
II-14-1
We have reviewed the originals or copies of: (i) the Trust Agreement, including the
Standard Trust Provisions; (ii) the Guaranty Agreement dated as of _______________ __, 20_;
and (iii) the Offering Circular. We also have reviewed such other documents relating to the
transaction and made such other factual and legal inquiries as we have considered necessary for
purposes of the opinions given below.
Based on the foregoing, we are of the opinion that, with respect to this transaction, the
statements and legal conclusions contained in the Offering Circular under the caption “Certain
Federal Income Tax Consequences” are correct in all material respects and the discussion
thereunder does not omit any material provision with respect to the matters covered. Also based
on the foregoing and subject to the qualifications stated herein, we are of the further opinion that,
Ginnie Mae MX Trust 20_-_ will constitute a grantor trust within the meaning of Sections 671
through 679 of the Code, and not a partnership or an association taxable as a corporation.
You should be aware that the above opinions and the discussion contained in the Offering
Circular under the caption “Certain Federal Income Tax Consequences” represent conclusions as
to the application of existing law to the transaction described herein. There can be no assurance
that existing law will not change or that contrary positions will not be taken by the Internal
Revenue Service.
No opinion has been sought and none has been given concerning the tax consequences of
the transaction described herein or of the acquisition, ownership, or disposition of the Securities
under the laws of any state or locality.
The opinions expressed herein are solely for the information and use of the addressees
and may not be relied upon or otherwise used for any purpose by any other person without our
express written consent.
U.S. Treasury Circular 230 Notice
To ensure compliance by this law firm with requirements imposed by the Internal
Revenue Service, we inform you that (a) this advice was not intended or written to be used,
and cannot be used, for the purpose of avoiding United States federal tax penalties, (b) this
advice was written to support the promotion or marketing of the transactions or matters
addressed herein and (c) any taxpayer to whom such transactions or matters are being
promoted, marketed or recommended should seek advice based on its particular
circumstances from an independent tax advisor.
Very truly yours,
2
II-14-2
FORM OF OPINION OF TRUSTEE’S COUNSEL FOR REMIC TRANSACTIONS
____________ __, 20_
Government National Mortgage Association
[Potomac Center
550 12th Street, SW
Third Floor
Washington, D.C. 20024]
Ginnie Mae REMIC Trust 20_-_
[Ginnie Mae MX Trust 20_-_]
c/o [Trustee]
[Sponsor]
Ginnie Mae Guaranteed [Multifamily] REMIC Pass-Though Securities [and MX Securities];
Ginnie Mae REMIC Trust 20 -__[and Ginnie Mae MX Trust 20- ]
Ladies and Gentlemen:
We have acted as special counsel to ________________________ in its capacity as
trustee (the “Trustee”) in connection with the issuance by the Ginnie Mae REMIC Trust 20_-_
(the “[REMIC] Trust”), established pursuant to a trust agreement (the “[REMIC] Trust
Agreement”), dated as of ____________ __, 20_, by and between the Trustee and
_____________________, a(n) ________________ corporation (the “Sponsor”), and
incorporating by reference the Standard Trust Provisions for REMIC Trusts, _________, 20_
Edition[, as amended through __________, 20_] (the “[REMIC] Standard Trust Provisions”)
[and the Ginnie Mae MX Trust 20_-_ (the “Grantor Trust” and, together with the REMIC Trust,
the “Trusts”) established pursuant to a trust agreement (the “MX Trust Agreement” and, together
with the REMIC Trust Agreement, the “Trust Agreements”), dated as of __________ __, 20_, by
and between the Trustee and the Sponsor and incorporating by reference the Standard Trust
Provisions for Ginnie Mae MX Trusts, __________ __, 20_, Edition[,as amended through
__________ __, 20_,] (the “MX Standard Trust Provisions” and, together with the REMIC
Standard Trust Provisions, the “Standard Trust Provisions”)], of $_____________ aggregate
[principal] [notional] amount of Guaranteed [Multifamily] REMIC Pass-Through Securities [and
MX Securities] (the “Securities”) guaranteed by the Government National Mortgage Association
(“Ginnie Mae”). The Securities are being sold to the Sponsor pursuant to the Trust
Agreement[s]. Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the glossary contained in the Ginnie Mae Multiclass Securities Guide currently in
effect.
In connection with the foregoing, we have examined the following documents:
II-15-1
(a)
[a copy] [copies] of the Standard Trust Provisions;
(b)
a signed copy of [the] [each] Trust Agreement, which incorporates by reference
the [related] Standard Trust Provisions;
(c)
a specimen security for [each Class of Certificated Security] [the Residual
Security] evidencing ownership interests in the Trust[s] established under the Trust
Agreement[s];
(d)
[the Sponsor Certification and the Accountants’ Certification]
(e)
the Issuance Statement;
(f)
the [Amended and Restated] Articles of [Incorporation] [Association] [Restated
Organization Certificate] and [the Amended and Restated] Bylaws of the Trustee, together with
[Certificates of Corporate Existence and Fiduciary Powers with respect to the Trustee] [good
standing certificates with respect to the Trustee]; and
(g)
the resolutions [and other corporate action] of the Trustee pertaining to the subject
transactions, certified by [the Secretary or an Assistant Secretary] [an officer] of the Trustee.
For purposes of the opinions expressed below, we have assumed (a) the authenticity of all
documents submitted to us as originals, (b) the conformity to the originals of all documents
submitted as certified or photostatic copies and the authenticity of the originals of such copies,
(c) the genuineness of signatures not witnessed by us, (d) the legal capacity of natural persons
and (e) the due authorization, execution and delivery of all documents by all parties and the
validity and binding effect thereof (other than the due authorization, execution and delivery of
documents by the Trustee and the validity and binding effect of documents upon the Trustee as
to which we express an opinion herein).
As to factual matters, we have relied upon representations included in the aforementioned
documents and in other documents delivered at the closing, upon certificates of officers of the
Trustee and upon certificates of public officials. In addition, we have obtained from officers and
employees of the parties described above such other certificates and assurances, and we have
examined such records, other documents and questions of law, as we have considered necessary
or appropriate for purposes of rendering this opinion letter. Whenever the phrase “to our
knowledge” is used herein, it refers to the actual knowledge of the attorneys of this firm involved
in the representation of the Trustee in this transaction.
The enforceability of the Trust Agreement[s] against the parties thereto is subject to the
provisions of bankruptcy, insolvency, reorganization, or moratorium laws or laws relating to or
affecting the rights of creditors generally and principles of equity, whether considered at law or
in equity, except that Ginnie Mae may enforce the Trust Agreement[s] against the parties thereto
notwithstanding any bankruptcy, insolvency, reorganization or moratorium law, or any law
relating to or affecting the rights of creditors generally, to the extent that such law is preempted
by the authorizing law for the Ginnie Mae Multiclass Securities Program set forth at 12 U.S.C. §
1721(g)(3)(E)(iv).
2
II-15-2
We do not purport to express an opinion as to the laws of any jurisdiction other than the
[State of ___________________, the] State of New York and the United States of America.
Based upon, and subject to, the foregoing and such other documents and information as
we have considered necessary for the purposes hereof, we are of the opinion that:
1.
The Trustee is a(n) ______________________ [corporation] [national banking
association], duly organized and validly existing in good standing under the laws of
[____________] [the United States of America], and has all requisite power and authority to
enter into the Trust Agreement[s] and to perform its obligations thereunder.
2.
To our knowledge, there is no action, suit, proceeding or investigation pending or
threatened against the Trustee that could materially adversely affect the Trustee’s ability to
perform its obligations under the Trust Agreement[s].
3.
[The] [Each] Trust Agreement has been duly authorized, executed and delivered
by the Trustee, and constitutes the legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, subject to the limitations noted above.
4.
The Book-Entry Securities [and the Uncertificated Securities] have been duly and
validly authorized and delivered by the Trustee in accordance with the [related] Trust Agreement
and are duly and validly issued and entitled to the benefits of [the] [such] [related] Trust
Agreement. The [Certificated Securities have] [Residual Security has] been duly and validly
authorized, executed, authenticated and delivered by the Trustee in accordance with the [related]
Trust Agreement and are duly and validly issued and entitled to the benefits of [the] [such] Trust
Agreement.
5.
The performance by the Trustee of its duties pursuant to the Trust Agreement[s]
does not conflict with or result in a breach or violation of any term or provision of, or constitute a
default under, any statute or regulation currently governing the Trustee.
6.
Assuming that [each Asset Pool] [and for as long as,] [each of the Pooling
REMIC and the Issuing REMIC] [the Trust REMIC] qualifies and elects to be treated as a
REMIC for federal income tax purposes, [it] [neither the Pooling REMIC nor the Issuing
REMIC] [the Trust REMIC] will [not] be subject to [income, excise, or franchise taxes] [any tax]
imposed by the [Commonwealth] [State] of _____________ or any political subdivision thereof
[NOTE - Insert the Trustee’s principal place of business and, if different, the place where the
principal trustee functions with respect to the Trust will take place] on its assets or income,
except to the extent it is subject to federal income tax.
We express no opinion as to any matter other than as expressly set forth herein, and no
other opinion is to be, or may be, inferred or implied herefrom. This opinion is given as of the
date hereof and is based on facts and conditions presently known to us and laws and regulations
currently in effect, and we do not undertake, and hereby disclaim, any obligation to advise you of
any change in any matters set forth herein.
We consent to reliance upon this opinion letter by you for the purpose of complying with
your requirements in connection with this transaction only as it relates to the specific legal issues
3
II-15-3
identified herein. Except as provided in the preceding sentence, this opinion letter may not be
relied upon by, nor may copies be delivered to, any person without our prior written consent.
Very truly yours,
4
II-15-4
OPINION OF HUD GENERAL COUNSEL
Please contact Ginnie Mae for document II-16,
Opinion of HUD General Counsel.
1
II-16-1
GINNIE MAE REMIC TRUST ADMINISTRATION AND TAX REPORTING
Trust administration and tax reporting will be performed in accordance with the REMIC
Standard Trust Provisions.
1
II-17-1
Office of Management & Budget publication number [2503-0030]
| File Type | application/pdf |
| File Title | Microsoft Word - 1905932_11.DOC |
| Author | 10024 |
| File Modified | 2008-12-05 |
| File Created | 2008-07-16 |