exv10w80






Exhibit 10.80


 

 


FORM OF SETTLEMENT AGREEMENT




among



FEDERAL NATIONAL MORTGAGE ASSOCIATION



and



FEDERAL HOME LOAN MORTGAGE CORPORATION



and



UNITED STATES DEPARTMENT OF THE TREASURY



and



THE HFA DESIGNATED HEREIN



and



U.S. BANK NATIONAL ASSOCIATION



Dated as of December 9, 2009


 

 




 






 









 










          This SETTLEMENT AGREEMENT is dated as of December 9, 2009 (as the same may be amended,
supplemented or otherwise modified from time to time, this “Agreement”), among the FEDERAL
NATIONAL MORTGAGE ASSOCIATION, a United States government sponsored enterprise (“Fannie
Mae”), the FEDERAL HOME LOAN MORTGAGE CORPORATION, a United States government sponsored
enterprise (“Freddie Mac”) (Fannie Mae and Freddie Mac are herein referred to as the
“GSEs” and, each, a “GSE”), the UNITED STATES DEPARTMENT OF THE TREASURY
(“Treasury”), the HFA identified on the signature page to this Agreement (the
“HFA”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, but solely as escrow and closing agent (the “Closing Agent”) under
this Agreement. Capitalized terms used in this Agreement that are not otherwise defined in Section
1 of this Agreement or in the recitals of this Agreement have the meaning assigned to them in
Article 1 of the Placement Agreement.




WITNESSETH:




          WHEREAS, pursuant to that certain Memorandum of Understanding, dated October 19, 2009 (the
“MOU”), among Treasury, the Federal Housing Finance Agency (“FHFA”), Fannie Mae and
Freddie Mac, the parties to the MOU have agreed, among other things, to facilitate financing for
various state and local housing finance agencies to serve homebuyers and low and moderate income
renters (the “HFA Initiative”);




          WHEREAS, Treasury requested that FHFA and the GSEs help Treasury design and implement the
programs set forth in the MOU in order to facilitate financing for the state and local housing
finance agencies, and to implement the HFA Initiative, including implementing the New Issue Bond
Program contemplated in the MOU;




          WHEREAS, the HFA, in accordance with the terms of the Placement Agreement, will exchange the
Program Bonds with the GSEs for GSE Securities;




          WHEREAS, the Program Bonds will be held by, and in the name of, the Administrator, pursuant to
the Administration Agreement;




          WHEREAS, the Administrator will deliver to each GSE a Custodial Receipt representing an
undivided 50% beneficial ownership interest of such GSE (each, a “GSE Interest”) in the
Program Bonds;




          WHEREAS, each GSE will enter into a trust agreement (each, a “Trust Agreement”)
pursuant to which it, in its corporate capacity, will deliver its related Custodial Receipt to
itself as trustee of a trust (each, a “Trust”) established by the GSE under a Trust
Agreement;




          WHEREAS, each GSE will issue and deliver on behalf and at the direction of the HFA to
Treasury’s Financial Agent, a series of GSE Securities that evidence each GSE’s Trust’s 50%
beneficial ownership interest in the Program Bonds;





 









 








          WHEREAS, Treasury will purchase the GSE Securities and cause the Purchase Price for the GSE
Securities to be remitted to the Closing Agent in payment for the GSE Securities;




          WHEREAS, the Closing Agent will remit the Purchase Price (less the GSE Fees) to the HFA
Trustee;




          WHEREAS, in accordance with the terms of the Placement Agreement and the New Issue Bond
Program Agreement, the parties to this Agreement desire that certain of the above referenced
actions occur concurrently;




          WHEREAS, the GSEs, Treasury and the HFA desire to appoint the Closing Agent to perform various
functions to facilitate the Settlement; and




          WHEREAS, the Closing Agent has the capacity to provide the respective services required hereby
and is willing to perform such services for the GSEs, Treasury and the HFA on the terms set forth
in this Agreement.




          NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
agree as follows:




          Section 1. Definitions and Rules of Construction.




          Whenever used in this Agreement (including in the Exhibits attached to this Agreement), the
following words and phrases, unless the context otherwise requires, shall have the meanings
specified in this Section.




          “Administration Agreement” means the Administration Agreement, dated as of December 1,
2009, among Fannie Mae, Freddie Mac and the Administrator.




          “Administrator” means U.S. Bank National Association, in its capacity as custodian,
collection agent, paying agent and administrator under the Administration Agreement.




          “Adverse Change” has the meaning given to such term in Section 3(i) of this Agreement.




          “Agent” means U.S. Bank National Association as escrow agent pursuant to the Global
Escrow Agreement.




          “Authorized Person” means a person whose name and title appear on Exhibit B attached
to this Agreement.




          “Business Day” means any day that is not (i) a Saturday, a Sunday, or any other day on
which Fannie Mae, Freddie Mac or the Closing Agent is not open for business, (ii) a day






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on which banking institutions in New York are permitted or required by law or executive order to
be closed or (iii) a day on which Treasury or the Federal Reserve Bank of New York is closed.




          “Certificate of Adverse Change” means a written certificate of the HFA stating that an
Adverse Change has occurred and describing the nature thereof.




          “Closing Documents” means each of the items delivered to the Closing Agent under
Section 3(a) and Section 3(b) of this Agreement.




          “Complete Indenture” means the Indenture, together with the Supplemental Indenture and
any other supplements thereto.




          “Corporate Trust Office” means the corporate trust office of the Closing Agent at
which at any particular time its corporate trust business in connection with this Agreement shall
be administered, which office at the date of the execution of this Agreement is located at 1
Federal Street, 3rd Floor, Boston, Massachusetts 02110, or at such other address as the
Closing Agent may designate from time to time by notice to the GSEs, the HFA, Treasury and
Treasury’s Financial Agent.




          “Custodial Receipt” means any of the custodial receipts relating to the Program Bonds
executed and delivered by the Administrator to the GSEs pursuant to the Administration Agreement in
the form attached as Exhibit A to the Administration Agreement.




          “DTC” means The Depository Trust Company or its successor in interest.




          “Escrow Account” has the meaning given to such term in Section 3(a)(v) of this
Agreement.




          “Exception” has the meaning given to such term in Section 3(f) of this Agreement.




          “Failed Settlement” has the meaning given to such term in Section 3(f) of this
Agreement.




          “Global Escrow Agreement” means the Global Escrow Agreement to be entered into among
Fannie Mae, Freddie Mac, the HFA Trustee and the Agent.




          “GSE Fees” mean, with respect to each GSE, the sum of (a) the Initial Securitization
Fee owed to such GSE and (b) the other fees and expenses due to such GSE on the Settlement Date
(which includes any fees owed to the GSE Special Closing Counsel) with respect to all of the GSE
Securities being issued to the HFA on the Settlement Date.




          “GSE Securities” means the securities issued by each GSE in exchange for the Program
Bonds.




          “GSE Special Closing Counsel” means the special counsel to the GSEs identified on
Schedule A of the Placement Agreement.





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          “HFA Trustee” means the bond indenture trustee of the Program Bonds identified in the
Settlement Statement.




          “Indenture” means the indenture or resolution identified on Schedule B to the
Placement Agreement pursuant to which the Program Bonds were issued.




          “Initial Securitization Fee” means the Initial Securitization Fee payable by the HFA
to each GSE, which such amount is set forth on Schedule A to the Placement Agreement.




          “Legal Deposit” means the legal deposit in the amount of $25,000 wired by the HFA to
the Closing Agent pursuant to the Participation Letter, evidencing the intent of the HFA to
participate in the New Issue Bond Program.




          “New Issue Bond Program” means the program pursuant to which Treasury will purchase
GSE Securities pursuant to the New Issue Bond Program Agreement.




          “New Issue Bond Program Agreement” means the New Issue Bond Program Agreement, dated
as of December 9, 2009, among Treasury, Fannie Mae and Freddie Mac.




          “Official Statement” means the Official Statement of the HFA delivered pursuant to
Section 5.1(a)(iv) of the Placement Agreement pertaining to the Program Bonds being delivered to
the GSEs in exchange for the GSE Securities.




          “Opinion of Counsel” means a written opinion of counsel, who may be outside or
salaried counsel of the party causing the opinion to be delivered, acceptable in any event to (a)
each of the parties to which such opinion is addressed and (b) each of the parties entitled to rely
on such opinion.




          “Participation Letter” means the participation letter from the HFA to Fannie Mae and
Freddie Mac acknowledging the HFA’s intent to participate in the HFA Initiative.




          “Placement Agreement” means the Placement Agreement, dated December 9, 2009, by and
among Fannie Mae, Freddie Mac and the HFA, which provides for the exchange of the Program Bonds for
the GSE Securities.




          “Pre-Settlement Conditions” has the meaning given to such term in Section 3(d)(v) of
this Agreement.




          “Private Placement Memorandum” means a private placement memorandum of a GSE relating
to the GSE Securities.




          “Program Bonds” means, collectively, the single-family mortgage revenue bonds and/or
multifamily mortgage revenue bonds issued by the HFA and identified in Schedule B to the Placement
Agreement.




          “Purchase Price” means the aggregate purchase price paid by Treasury for the GSE
Securities, which is specified in the Settlement Statement.





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          “Rating Agencies” mean any of Fitch, Inc., Moody’s Investors Service, Inc. and/or
Standard & Poor’s Ratings Services.




          “Revised Settlement Date” has the meaning given to such term in Section 3(g) of this
Agreement.




          “Settlement” means the consummation of the issuance and exchange of the Program Bonds
for the GSE Securities, the purchase of the GSE Securities by Treasury, the payment of the net
purchase proceeds to the HFA Trustee, the payment of the GSE Fees to the GSEs and the other
transactions contemplated by the Placement Agreement and this Agreement.




          “Settlement Date” means December 23, 2009.




          “Settlement Statement” means the statement in the form of Schedule I attached to this
Agreement.




          “Supplemental Indenture” means the supplemental indenture, resolution and/or appendix
to the Indenture entered into in connection with the issuance of the Program Bonds.




          “Treasury’s Financial Agent” means JPMorgan Chase Bank, N.A., as Treasury’s financial
agent or such other party as Treasury may appoint for such purpose from time to time.




          Section 2. Appointment.




          The GSEs, Treasury and the HFA hereby appoint the Closing Agent to act as escrow agent and
closing agent under this Agreement and to provide the other services for the period described in
this Agreement and on the terms set forth in this Agreement. The Closing Agent hereby accepts such
appointment and agrees during such period to provide the services set forth in this Agreement for
the compensation provided for in this Agreement.




          Section 3. Delivery of Closing Documents; Duties of the Parties.





          (a) In accordance with the Placement Agreement, the HFA shall:




	 	(i)	 	on or prior to 10:00 AM, local time of the
office of the GSE Special Closing Counsel, on December 9, 2009,
deliver or cause to be delivered to the GSE Special Closing Counsel
the Placement Agreement (an original or pdf copy), this Agreement (an
original or pdf copy), the Settlement Statement with all information
completed therein (an original or pdf copy) and one electronic copy
(with a hard copy to follow) of the Official Statement (along with
their respective executed signature pages if the applicable document
requires execution), a copy of each of which will be delivered by the
GSE Special Closing Counsel to Treasury’s
Financial Agent prior to noon, New York time, on December 9, 2009;




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	 	(ii)	 	on or prior to 5:00 PM, New York time, on
December 11, 2009, deliver or cause to be delivered (a) to the
Closing Agent the completed UW Source spreadsheet by e-mail at
usbhfa@usbank.com (for delivery to DTC) and a copy of the Official
Statement and (b) to DTC a copy of the Letter of Representation of
the HFA;
	 
	 	(iii)	 	on or prior to 10:00 AM, local time of the
office of the GSE Special Closing Counsel, on December 14, 2009,
deliver or cause to be delivered to the GSE Special Closing Counsel
the documents (originals or pdf copies) specified in Schedule C
(Settlement Deliverables) of the Placement Agreement (along with
their respective executed signature pages if the applicable document
requires execution);
	 
	 	(iv)	 	on or prior to 5:00 PM, New York time, on
December 18, 2009, deliver or cause to be delivered to the Closing
Agent a certificate of the HFA Trustee in the form of Exhibit D
attached to this Agreement; and
	 
	 	(v)	 	on or prior to 1:00 PM, New York time, on
December 21, 2009, cause the Program Bonds to be settled, released
and credited to the Closing Agent’s participant account at DTC for
further credit by the Closing Agent to a securities account held by
the Closing Agent (the “Escrow Account”).





          In the event that the GSE Special Closing Counsel or either GSE does not agree with the
information set forth in the Settlement Statement, the HFA hereby agrees to cooperate with such
parties and revise the Settlement Statement to reflect the terms mutually agreed upon (whereupon
the revised Settlement Statement shall be the operative Settlement Statement for all purposes of
this Agreement). In the event that a revised Settlement Statement is not agreed upon by such
parties, delivery of the Settlement Statement pursuant to Section 3(a)(i) above will not have been
satisfied and a Failed Settlement will be deemed to have occurred.





          (b) The GSEs shall deliver, or cause to be delivered, to the Closing Agent, the following
documents along with their respective executed signature pages (if the applicable document
requires execution) all in accordance with the time frames set forth below:




	 	(i)	 	on or prior to noon, New York time, on
December 17, 2009, a certification from the GSEs substantially in the
form of Exhibit A attached to this Agreement; and
	 
	 	(ii)	 	on or prior to 5:00 PM, New York time, on
December 18, 2009, a copy of the Placement Agreement.






          (c) On or prior to noon, New York time, on December 18, 2009, Treasury (or Treasury’s
Financial Agent on Treasury’s behalf) shall do all things necessary to register the



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GSE
Securities with DTC and make the GSE Securities DTC FAST-eligible, including without limitation:
(i) paying all required fees and (ii) delivering the Private Placement Memorandum and entering
all other required information into the DTC system, including without limitation, delivering the
DTC Eligibility Questionnaire, or any other data requested by DTC in the form of a questionnaire
or any other form.




          (d) Prior to 5:00 PM, New York time, on December 21, 2009, the Closing Agent shall:




	 	(i)	 	examine the Closing Documents that were
received by it hereunder and determine whether it has received all of
the Closing Documents required to be delivered to it under Section
3(a) and Section 3(b) above;
	 
	 	(ii)	 	confirm the execution (if such document
requires execution) by each of the parties to the Closing Documents;
	 
	 	(iii)	 	confirm that the Closing Documents appear
complete and regular on their face and are in the form required by
this Agreement;
	 
	 	(iv)	 	confirm that the Program Bonds have been
credited to the Escrow Account in accordance with Section 3(a)(v)
above; and
	 
	 	(v)	 	confirm with DTC that the GSE Securities
have been set up as DTC Fast-eligible as specified in Section 3(c)
above (collectively, clauses (i) through (v) are the
“Pre-Settlement Conditions”).






The Closing Agent shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, other paper or document that it reviews under this Section 3(d), but
may make such further inquiry or investigation into such facts or matters as it may deem
necessary.




          (e) If the Closing Agent has determined that all the required Pre-Settlement Conditions
have been met hereunder, the Closing Agent shall notify each GSE, the HFA, Treasury and
Treasury’s Financial Agent of such determination, which notification shall (i) occur no later
than 5:00 PM, New York time, on December 21, 2009 and (ii) be substantially in the form attached
to this Agreement as Exhibit C. Upon receipt of notice that all Pre-Settlement Conditions have
been met, Treasury shall cause Treasury’s Financial Agent, on or prior to 9:00 AM, New York
time, on the Settlement Date, to wire on behalf of Treasury the aggregate Purchase Price for the
GSE Securities to the Closing Agent pursuant to the Closing Agent’s wire instructions set forth
in the Settlement Statement. The Closing Agent shall hold the Purchase Price in escrow pending
release in accordance with Section 4 of this Agreement.




          (f) If the Closing Agent determines that any of the Pre-Settlement Conditions have not been
met, the Closing Agent shall notify the parties to this Agreement of each



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exception (each such
exception, an “Exception”) no later than 5:00 PM, New York time, on December 21, 2009
and identify the nature thereof. If each Exception is not waived or cured in all material
respects by 11:00 AM, New York time, on December 22, 2009, or if the Program Bonds have not been
credited to the Escrow Account by at least 2:00 PM, New York time, on December 22, 2009, the
Closing Agent shall notify each GSE, the HFA, Treasury and Treasury’s Financial Agent of such
and the Settlement shall constitute a “Failed Settlement.” The Closing Agent shall then
proceed in accordance with Section 3(g) below.




          (g) Subject to the last sentence of this paragraph, if a Failed Settlement has occurred,
the Closing Agent shall within one Business Day after the scheduled Settlement Date (except as
otherwise set forth below) (i) return each Closing Document to the respective party that
delivered it to the Closing Agent by overnight mail, (ii) cause the Program Bonds being held in
the Escrow Account to be returned to the HFA (or the HFA Trustee), (iii) promptly return the
Purchase Price (to the extent received by the Closing Agent) to Treasury’s Financial Agent in
accordance with the wire instructions provided in the Settlement Statement and (iv) apply the
Legal Deposit in accordance with the instructions of the GSEs. In the event of a Failed
Settlement, Treasury, the GSEs and the HFA may agree and instruct the Closing Agent in writing
that such Settlement shall occur on the January 12th settlement date for the New
Issue Bond Program (the “Revised Settlement Date”), in which case the Closing Agent
shall (x) hold the Closing Documents in accordance with this Agreement until the Revised
Settlement Date, (y) re-determine prior to the Revised Settlement Date whether all of the
Pre-Settlement Conditions have been met with respect to such Settlement and (z) comply with all
of the other provisions of this Agreement with respect to such Settlement, all in accordance
with the revised time line established by reference to the Revised Settlement Date.




          (h) Any notifications and instructions pursuant to this Section 3 sent to any party to this
Agreement shall be in writing (which may be by facsimile or electronic mail) with receipt
confirmed by telephone at the addresses set forth below in Section 10. Any such notifications
must be from an Authorized Person.




          (i) In the event of a change in law or facts occurring on or before the Settlement Date,
which change was beyond the control of the HFA (or the entity providing the Closing Document on
behalf of the HFA) and which change materially adversely affects the conclusions or
representations contained in a Closing Document (an “Adverse Change”), the HFA shall
deliver a Certificate of Adverse Change on or prior to the Settlement Date. Delivery of a
Certificate of Adverse Change shall not result in a Failed Settlement, and Settlement shall
otherwise occur as herein provided, including the delivery of the GSE Securities, the transfer
of funds and the payment of all GSE Fees as contemplated herein. Delivery of a Certificate of
Adverse Change will subject the Program Bonds to mandatory and involuntary redemption in whole
in accordance with the terms of the Complete Indenture.



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          Section 4. Disbursement of Funds and Release of Closing Documents.





          (a) Upon (A) satisfaction of the Pre-Settlement Conditions and (B) receipt by the Closing
Agent of the Purchase Price, the Closing Agent shall on the Settlement Date:




	 	(i)	 	release the Closing Documents from escrow;
	 
	 	(ii)	 	disburse the applicable GSE Fees and expenses
out of the Purchase Price and the Legal Deposit to the related GSE and
the other parties entitled thereto in accordance with the Settlement
Statement;
	 
	 	(iii)	 	disburse the remaining Purchase Price (net
of the GSE Fees and expenses paid pursuant to clause (ii) above) to
the HFA Trustee and, if applicable, to the Agent pursuant to the
Global Escrow Agreement in accordance with the Settlement Statement
(including the wire instructions of the HFA Trustee and the Agent set
forth therein); and
	 
	 	(iv)	 	transfer the Program Bonds being held in the
Escrow Account to the trust account established by the Administrator
pursuant to the Administration Agreement (and the Administrator, upon
receipt of the Program Bonds will deliver the Custodial Receipts to
the GSEs).






          (b) Upon receipt of the Custodial Receipts, each GSE shall issue the related GSE Securities
and deliver, or cause to be delivered, the GSE Securities to Treasury by crediting Treasury’s
Financial Agent’s account at DTC.




          (c) Each of the parties to this Agreement hereby agrees and acknowledges that the events
described in Section 4 (a) and (b) above will be deemed to take place concurrently. The HFA
hereby acknowledges and agrees that, upon the transfer pursuant to Section 4(a)(iv) above of the
Program Bonds to the trust account established by the Administrator in accordance with the
Placement Agreement, the Administrator, on behalf of the GSEs, will acquire good, unencumbered
and marketable title to the Program Bonds and neither the HFA nor any other party will have any
claim to or interest in the Program Bonds.




          (d) If any of the events described in Section 4 (a) and (b) above do not occur on the
Settlement Date, the Settlement shall be deemed to be a Failed Settlement and the Closing Agent
shall follow the procedures set forth in Section 3(g) above.



          Section 5. Resignation and Removal of the Closing Agent.





          (a) The Closing Agent shall not resign from the obligations and duties imposed on it as
Closing Agent under this Agreement except upon a determination that the performance of its
duties under this Agreement shall no longer be permissible under applicable law or shall violate
any final order of a court or administrative agency with jurisdiction over the Closing Agent or
its properties. Notice of any such determination



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permitting or requiring the resignation of the Closing Agent shall be communicated to the
GSEs, the HFA, Treasury and Treasury’s Financial Agent at the earliest practicable time (and, if
such communication is not in writing, shall be confirmed in writing at the earliest practicable
time) and any such determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the GSEs, the HFA, Treasury and Treasury’s Financial Agent concurrently with or
promptly after such notice. No such resignation shall become effective until a successor
Closing Agent shall have assumed the responsibilities and obligations of the resigning Closing
Agent in accordance with Section 5(d) below.





          (b) Subject to Section 5(d) of this Agreement, the GSEs and Treasury, acting together, may
remove the Closing Agent without cause by providing the Closing Agent with at least 5 days’
prior written notice.




          (c) Subject to Section 5(d) of this Agreement, the GSEs and Treasury, acting together, may
remove the Closing Agent immediately upon written notice of termination from the GSEs to the
Closing Agent and the HFA if any of the following events shall occur:




	 	(i)	 	the Closing Agent shall default
in the performance of any of its duties under this Agreement
and, after notice of such default, shall not cure such default
within one (1) Business Day (or, if such default cannot be cured
in such time, shall not give within one (1) Business Day such
assurance of cure as shall be reasonably satisfactory to the
GSEs and Treasury);
	 
	 	(ii)	 	a court having jurisdiction shall
enter a decree or order for relief in respect of the Closing
Agent in any involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or
appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Closing Agent or any
substantial part of its property or order the winding-up or
liquidation of its affairs; or
	 
	 	(iii)	 	the Closing Agent shall commence
a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under
any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Closing Agent or any substantial part
of its property, shall consent to the taking of possession by
any such official of any substantial part of its property, shall
make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.






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          (d) No resignation or removal of the Closing Agent pursuant to this Section shall be
effective until (i) a successor Closing Agent shall have been appointed by the GSEs and Treasury
and (ii) such successor Closing Agent shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Closing Agent is bound hereunder.



          Section 6. Closing Agent Responsibilities.




          The Closing Agent executes this Agreement solely for the purpose of accepting the escrow
created by this Agreement and performing the duties set forth herein on the terms and conditions
set forth in it, and undertakes to perform the duties, but only the duties, specifically set forth
in this Agreement. The Closing Agent is not required to secure the performance of its duties by
bond or otherwise. The HFA, Treasury, Fannie Mae and Freddie Mac hereby release the Closing Agent
from all liability for any punitive, incidental, consequential, or other damages or obligations to
them for any act or omission by the Closing Agent or any of its agents or employees in good faith
in the exercise of its or their duties and in a manner reasonably believed by it or them to be
authorized or within the duties, rights, powers, privileges, or direction conferred on the Closing
Agent by this Agreement, except for willful misconduct, negligence, or tortious conversion of any
funds held hereunder. Without limiting the generality of the foregoing, the responsibilities of
the Closing Agent are further defined, limited, and qualified by the following:





     (i) The duties and obligations of the Closing Agent will be determined by the
express provisions of this Agreement, and this Agreement is not to be interpreted or
construed to impose on the Closing Agent any implied duties, covenants, or obligations.




     (ii) The Closing Agent may execute any of its rights, powers, or responsibilities
under this Agreement either directly or by or through its agents, partners, employees,
or attorneys, and it will not be liable for any error of judgment made in good faith by
an authorized agent, partner, employee, or attorney of it, unless it is proven that the
Closing Agent was negligent in ascertaining the pertinent facts or in employing or
supervising the agent, partner, employee or attorney.




     (iii) The Closing Agent will not be liable to any person with respect to any
action taken, suffered, or omitted by it in accordance with this Agreement or in
accordance with written instructions signed by the GSEs, Treasury, Treasury’s Financial
Agent and/or the HFA in accordance with this Agreement, or an order issued by a court
of competent jurisdiction.




     (iv) Except as otherwise specified in this Agreement, the Closing Agent shall not
be responsible to the GSEs, the HFA or Treasury or any other person or entity for
recitals, statements or warranties or representations of any other person or entity
contained herein, in the Closing Documents or in any other documents related thereto or
be bound to ascertain or inquire as to the performance or observance of any of the
terms of this Agreement or the Closing Documents on the part of the HFA.



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     (v) The Closing Agent shall not be liable for any error of judgment, or for any
act done or step taken or omitted by it, in good faith, or for any mistakes of fact or
law, or for anything which it may do or refrain from doing in connection herewith,
except for the Closing Agent’s negligence, reckless disregard or willful misconduct.




     (vi) The Closing Agent shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties hereunder,
or in the exercise of its rights or powers, if the Closing Agent believes that
repayment of such funds (repaid in accordance with the terms of this Agreement) or
adequate indemnity against such risk or liability is not reasonably assured to it.




     (vii) The Closing Agent may consult with counsel, and the advice or any opinion of
counsel shall be full and complete authorization and protection in respect of any
action taken or omitted by it hereunder in good faith and in accordance with such
advice or opinion of counsel.




     (viii) The Closing Agent 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, entitlement order, approval or other paper or
document.




     (ix) The Closing Agent shall not be responsible for delays or failures in
performance resulting from acts beyond its reasonable control. Such acts shall include
but not be limited to acts of God, strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures, power
failures, earthquakes or other disasters.



          Section 7. Compensation and Expenses of the Closing Agent.




          As compensation for the performance of the Closing Agent’s obligations under this Agreement
and as reimbursement for its expenses related thereto, the Closing Agent shall be entitled to
receive the fees set forth in the Administration Agreement.




          Section 8. Controversy.




          If a controversy arises before, during, or after the term of this Agreement with respect to
the Closing Documents or the Settlement, the Closing Agent may do either or both of the following:
(a) withhold further performance by it under the instructions set forth in this Agreement until all
of the parties to this Agreement provide joint instructions with respect to such controversy; or
(b) commence or defend any action or proceeding for or in the nature of interpleader. If a suit or
proceeding for or in the nature of interpleader is brought by or against it, the Closing Agent may
deliver the Closing Documents and other funds and property held by it under this Agreement into the
registry of the court and thereupon will be released and discharged from all further obligations
and responsibilities under this Agreement.







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          Section 9. Term of the Agreement.




          This Agreement shall terminate upon the earliest to occur of (i) the completion of all of the
releases, deliveries and disbursements provided for in Section 4 hereof, (ii) the return of all
Closing Documents, funds and other documents in connection with a Failed Settlement in accordance
with Section 3(g) of this Agreement or (iii) the mutual written agreement of the parties to this
Agreement that this Agreement should be terminated.




          Section 10. Notices.




          All notices, directions, certificates or other communications under this Agreement shall be
sent by e-mail (as a first preference), certified or registered mail, return receipt requested, or
by overnight courier addressed to the appropriate notice address set forth below. Any such notice,
certificate or communication shall be deemed to have been given as of the date of actual delivery
or the date of failure to deliver by reason of refusal to accept delivery or changed address of
which no notice was given pursuant to this Section 10. Any of the parties to this Agreement may,
by such notice described above, designate any further or different address to which subsequent
notices, certificates or other communications shall be sent without any requirement of execution of
any amendment to this Agreement. The notice addresses are as follows:




	 	 	 	 	 
	To Closing	 	U.S. Bank National Association
	Agent:	 	One Federal Street, 3rd Floor
	 	 	Boston, MA 02110
	 	 	Attention: Structured Finance/HFA Program
	 
	 	 	 	 
	 

	 	E-mail:
	 	Julie.Kirby@usbank.com
	 
	 	 	 	 
	To Treasury:

	 	Care of:	 	 
	 
	 	 	 	 
	 	 	JPMorgan Chase Bank, N.A.
	 	 	1 Chase Manhattan Plaza, Floor 19
	 	 	New York, New York 10005
	 	 	Attention: Lillian G. White
	 	 	Phone - 212-552-2392
	 	 	Fax - 212-552-0551
	 
	 	 	 	 
	 

	 	E-mail:
	 	jpm.hfa@jpmorgan.com
	 
	 	 	 	 
	 

	 	with a copy to:	 	 
	 
	 	 	 	 
	 

	 	 	 	Lillian.G.White@jpmorgan.com
	 
	 	 	 	 
	 	 	Notice delivered to Treasury at the address given above shall
also constitute notice to Treasury’s Financial Agent.






-13-









 






	 	 	 	 	 
	 	 	with a copy to:
	 
	 	 	 	 
	 	 	Department of the Treasury
	 	 	1500 Pennsylvania Avenue, N.W.
	 	 	Washington, D.C. 20220
	 

	 	Attention:
	 	Fiscal Assistant Secretary
	 

	 	 	 	re: Housing Finance Agencies Initiative
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	Attention:
	 	Assistant General Counsel
	 

	 	 	 	(Banking and Finance)
	 

	 	 	 	re: Housing Finance Agencies Initiative
	 
	 	 	 	 
	To Fannie Mae:

	 	Fannie Mae	 	 
	 	 	3900 Wisconsin Avenue, N.W.
	 	 	Washington, D.C. 20016
	 

	 	Attention:
	 	Carl W. Riedy, Jr.

Vice President for Public

Entities Channel, Housing

and Community Development
	 
	 	 	 	 
	 

	 	E-mail:
	 	Carl_W_Riedy@fanniemae.com
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	Attention:
	 	Barbara Ann Frouman
	 

	 	 	 	Vice President and
	 

	 	 	 	Deputy General Counsel, Housing and
	 

	 	 	 	Community Development
	 
	 	 	 	 
	 

	 	E-mail:
	 	Barbara_Ann_Frouman@fanniemae.com
	 
	 	 	 	 
	 

	 	with copies to:	 	 
	 
	 	 	 	 
	 

	 	 	 	John Runyon
	 

	 	 	 	Director of Capital Markets Operations
	 

	 	E-mail:
	 	john_l_runyon@fanniemae.com






-14-









 






	 	 	 	 	 
	To Freddie Mac:

	 	Freddie Mac	 	 
	 	 	1551 Park Run Drive
	 	 	Mail Stop D4F
	 	 	McLean, Virginia 22102
	 

	 	Attention:
	 	Mark D. Hanson
	 

	 	 	 	Vice President Mortgage Funding
	 
	 	 	 	 
	 

	 	E-mail:
	 	Mark_Hanson@freddiemac.com
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	Freddie Mac	 	 
	 	 	8200 Jones Branch Drive
	 	 	McLean, Virginia 22102
	 
	 	 	 	 
	 

	 	Attention:
	 	Melinda Reingold
	 

	 	 	 	Managing Associate General Counsel —Mortgage Securities
	 
	 	 	 	 
	 

	 	E-mail:
	 	Melinda_Reingold@freddiemac.com
	 
	 	 	 	 
	 

	 	with copies to:
	 	Arnold_Dean@freddiemac.com and
	 

	 	 	 	Edward_Abrams@freddiemac.com
	 
	 	 	 	 
	To HFA:	 	The address identified in the Settlement Statement.





or to any other address any party provides to the other parties in writing.




          Section 11. Amendments.




          The parties to this Agreement may from time to time amend this Agreement in writing, and such
amendments, when executed by all parties, shall then become a part of this Agreement.




          Section 12. Governing Law.




          This Agreement shall be governed by, and interpreted in accordance with, the laws of the
United States, not the law of any state or locality, except that the authority and powers of the
HFA shall be governed by and construed in accordance with the laws of its state. To the extent
that a court looks to the laws of any state to determine or define the laws of the United States,
it is the intention of the parties to this Agreement that such court shall look only to the laws of
the State of New York without regard to the rules of conflicts of laws.




          Section 13. Entire Agreement; Priority of Agreements.




          This Agreement, including all documents and exhibits incorporated by reference herein,
constitutes the entire agreement between the parties with respect to the matters set forth






-15-









 







herein. If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be held invalid for any reason whatsoever, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement. In the event of any conflict or inconsistency between this Agreement
and the Placement Agreement, this Agreement shall control.




          Section 14. Successors and Assigns.




          Neither this Agreement nor any of the rights and obligations of the HFA under this Agreement
may be assigned by the HFA without the prior written consent of each GSE. The rights of the GSEs
under this Agreement shall inure to the benefit of their respective successors and assigns.




          Section 15. No Third-Party Beneficiaries.




          Except as to Treasury’s Financial Agent, this Agreement does not confer any rights, benefits,
remedies or claims, either at law or in equity, on any person not a party to this Agreement.
Treasury’s Financial Agent shall be a beneficiary, and entitled to enforce the provisions, of this
Agreement.




          Section 16. Headings.




          The section headings hereof have been inserted for convenience of reference only and shall not
be construed to affect the meaning, construction or effect of this Agreement.




          Section 17. Counterparts.




          This Agreement may be executed in counterparts, each of which when so executed shall together
constitute but one and the same agreement.




          Section 18. Severability.




          Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.




          Section 19. Records.




          The Closing Agent shall maintain appropriate books of account and records as required by law
and relating to the Closing Agent’s services performed under this Agreement. These books of
account and records shall be accessible for inspection upon written request by the GSEs, the HFA,
Treasury or Treasury’s Financial Agent at any time during normal business hours.




* * *




-16-









 








          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the day and year first above written.




	 	 	 	 	 
	 	FEDERAL NATIONAL MORTGAGE ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Fannie Mae Signature Page to Settlement Agreement]





S-1









 





          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the day and year first above written.




	 	 	 	 	 
	 	FEDERAL HOME LOAN MORTGAGE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Freddie Mac Signature Page to Settlement Agreement]





S-2









 





          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the day and year first above written.




	 	 	 	 	 
	 	UNITED STATES DEPARTMENT OF THE TREASURY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Treasury Signature Page to Settlement Agreement —[HFA] [(Single-family)][(Multifamily)]





S-3









 





          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the day and year first above written.




	 	 	 	 	 
	 	[HFA]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[HFA Signature Page to Settlement Agreement]





S-4









 





          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the day and year first above written.




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[U.S. Bank Signature Page to Settlement Agreement]





S-5











 





Schedule I




FORM OF SETTLEMENT STATEMENT



NEW ISSUE BOND PROGRAM



Name of HFA Bond(s):




 





 





     I. CONTACTS




	 	(A)	 	HFA
	 
	 	 	 	[name and address of HFA]
	 
	 	 	 	[contact individuals; include phone and email]
	 
	 	(B)	 	HFA TRUSTEE
	 
	 	 	 	[name and address of HFA trustee]
	 
	 	 	 	[contact individuals; include phone and email]
	 
	 	(C)	 	US BANK






	 	 	 	Julie Kirby

U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Telephone: 617-603-6576

E-mail: Julie.Kirby@usbank.com






	 	(D)	 	GSEs
	 
	 	 	 	Fannie






	 	 	 	Robert Mailley

Fannie Mae

3900 Wisconsin Avenue, N.W. Mailstop 2H-3S/16

Washington, D.C. 20016-2892

Telephone: 202-752-7240

E-mail: Robert_Mailley@fanniemae.com













Schedule I-1









 












	 	 	 	Freddie






	 	 	 	Mike Dawson

Freddie Mac

1551 Park Run Drive

McLean, Virginia 22102

Telephone: 571-382-3812

E-mail: Mike_Dawson@freddiemac.com






	 	(E)	 	JPMORGAN CHASE






	 	 	 	Lillian G. White

JPMorgan Chase Bank, N.A.

1 Chase Manhattan Plaza, Floor 19

New York, New York

Telephone — 212-552-2392

Fax — 212-552-0551

E-mail: Lillian.G.White@jpmorgan.com






	 	(F)	 	HFA BOND COUNSEL
	 
	 	 	 	[name and address of counsel]
	 
	 	 	 	[contact individuals; include phone and email]
	 
	 	(G)	 	[HFA ISSUER’S COUNSEL]
	 
	 	 	 	[name and address of counsel]
	 
	 	 	 	[contact individuals; include phone and email]
	 
	 	(H)	 	GSE SPECIAL CLOSING COUNSEL
	 
	 	 	 	[name and address of counsel]
	 
	 	 	 	[contact individuals; include phone and email]







Schedule I-2









 











     II. SECURITIES DETAILS



TERM BONDS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal Balance	 	 	 	 	 	 	 	 	 	Initial Interest	 	 
	 	 	at Issue Date	 	Trade Price	 	CUSIP Number	 	Rate	 	Final Maturity Date
	Single Family
Simultaneous
Premium
	 	$	 	 	 	 	103 00	 	 	 	 	 	 	 	 	 	 	 	 	 
	Single Family
Simultaneous Par
	 	$	 	 	 	 	100 00	 	 	 	 	 	 	 	 	 	 	 	 	 
	Single Family Escrow
	 	$	 	 	 	 	100 00	 	 	 	 	 	 	 	 	 	 	 	 	 
	Multifamily Escrow
	 	$	 	 	 	 	100 00	 	 	 	 	 	 	 	 	 	 	 	 	 






     III. MARKET BONDS (if any)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal Balance 
at Issue Date	 	CUSIP Number	 	Initial Interest Rate	 	Final Maturity Date
	 	 	 	 	 	 	 	 	 	 	 	 	 
	$ 
	 	 	 	 	 	 	 	 	 	 	 	 




Escrow Ratio:



Market Bond/ Sum of Market Bonds and Simultaneous Par Program Bonds Issued: ___%




     IV. SOURCES AND USES



	 	 	 	 	 
	PURCHASE PRICE FROM JPMC
	 	$	                    	 
	GSE INITIAL SECURITIZATION FEES
	 	 	 	 
	Fannie
	 	 	($                    	)
	Freddie
	 	 	($                    	)
	GSE EXPENSES (SPECIAL COUNSEL LEGAL FEES)
	 	 	 	 
	Fannie
	 	 	($                    	)
	Freddie
	 	 	($                    	)
	LEGAL DEPOSIT
	 	$	                    	 
	NET REMITTANCE TO HFA TRUSTEE
	 	$	                    	 







Schedule I-3









 






     V. WIRE INSTRUCTIONS



	 	 	 
	US BANK AS CLOSING AGENT:

	 	ABA = 091000022 U.S. Bank
	 

	 	BBK = U.S. Bank N.A.
	 

	 	BNF = U.S. Bank Trust N.A..A.
	 

	 	A/C : 173103321118
	 

	 	OBI = Structured Finance- Account # (TBD)
	 

	 	Ref: NIBP-HFA Code
	 

	 	Attn: Corporate Trust GSE Securitization
	 
	 	 
	FANNIE MAE

	 	FNMA NYC
	 

	 	ABA 021039500
	 

	 	Acct. Fannie Mae
	 

	 	Ref: GR090-HFA
	 
	 	 
	FREDDIE MAC

	 	Bank Name: FHLMC WASH/INV
	 

	 	ABA: 021033205
	 

	 	Attn: Jim Wolfson
	 

	 	Ref: securitization fee
	 
	 	 
	GSE OUTSIDE COUNSEL
	 	 
	 
	 	 
	US BANK FEE ACCOUNT

	 	ABA = 091000022 U.S. Bank
	 

	 	BBK = U.S. Bank N.A.
	 

	 	BNF = U.S. Bank Trust N.A..A.
	 

	 	A/C : 173103321118
	 

	 	OBI = Structured Finance- Account # (TBD)
	 

	 	Ref: NIBP-HFA Code
	 

	 	Attn: Corporate Trust GSE Securitization
	 
	 	 
	HFA TRUSTEE
	 	 
	 
	 	 
	HFA
	 	 
	 
	 	 
	OTHERS
	 	 










Schedule I-4









 








EXHIBIT A




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Structured Finance/HFA Program




     Re: Settlement Agreements listed on Schedule A


Ladies and Gentlemen:




[                    __], 2009




          Pursuant to Section 3(b)(i) of each of the Settlement Agreements listed on Schedule A to this
certificate (each, a “Settlement Agreement”), the undersigned hereby certifies to U.S. Bank
National Association that it has received and reviewed the certification (the “Closing Counsel
Certification”) provided to it by the GSE Special Closing Counsel regarding the items to be
delivered to the GSE Special Closing Counsel pursuant to Section 3(a)(i) and Section 3(a)(iii) for
each of the transactions listed on Schedule A to this certificate and that each such Closing
Counsel Certification is acceptable to the undersigned.




          This certificate may be executed in counterparts, each of which when so executed shall
together constitute but one and the same certificate. All capitalized terms used herein unless
otherwise defined shall have the meaning ascribed to them in the Settlement Agreements.




	 	 	 	 	 
	 	FEDERAL NATIONAL MORTGAGE ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FEDERAL HOME LOAN MORTGAGE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








A-1









 








EXHIBIT B




Authorized Persons



FANNIE MAE



	 	 	 
	NAME	 	TITLE
	 
	 	 
	Richard Sorkin

	 	Vice President, Capital Markets — Structured Transactions






FREDDIE MAC




	 	 	 
	NAME	 	TITLE
	 
	 	 
	Mark Hanson

	 	Vice President Mortgage Funding
	 
	 	 
	Mike Dawson

	 	Vice President Deal & Contract Management






TREASURY




	 	 	 
	NAME	 	TITLE
	 
	 	 
	Gary Grippo
	 	Deputy Assistant Secretary for Fiscal Operations and Policy






HFA




	 	 	 
	NAME	 	TITLE
	 
	 	 
	 

	 	 












B-1









 








EXHIBIT C




Notice



[December 21, 2009]



[Addressees listed on Schedule 1

hereto]




     Re: Settlement Agreements — Closing Conditions


Ladies and Gentlemen:




     This notice is given to you in accordance with the provisions of the Settlement Agreements,
dated as of                      2009 listed on Schedule I hereto (the “Settlement Agreements”), by and
among Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, United States
Department of the Treasury, U.S. Bank National Association, as closing agent (the “Closing Agent”),
and the HFAs parties to those agreements. All initially capitalized terms used herein shall have
the meaning ascribed to them in the Settlement Agreements. In accordance with Section [3(e)] of
the Settlement Agreements, the Closing Agent hereby notifies you that it has determined that all of
the required Pre-Settlement Conditions have been satisfied [subject to the exceptions listed on
Schedule II attached hereto].



     The Closing Agent has made no independent examination of any of the documents delivered to it
in accordance with Section 3 of the Settlement Agreements beyond the review specifically required
by the Settlement Agreements. The Closing Agent makes no representations as to the validity,
legality, enforceability or genuineness of any of such documents or the Program Bonds to which they
relate.



	 	 	 	 	 
	 	U.S. Bank National Association, as

Closing Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 










C-1









 








EXHIBIT D




CERTIFICATION OF RECEIPT



$                    

[Bond Caption]


The undersigned, an authorized representative of [Trustee] as Trustee under that [Indenture] dated
as of [                    ], of [Issuer] (the “Issuer”) as amended and supplemented in connection with
the issuance of the Program Bonds, the Trustee hereby acknowledges receipt from or on behalf of the
Issuer of the sum of $                     for deposit under the Indenture as follows: (a) $                     (the
“Shortfall Amount”) into the [Program Fund]; and (b) $                     (the “Costs of Issuance Amount”)
for deposit into the [Costs of Issuance Fund].



The Trustee hereby certifies that the Shortfall Amount is equal to the difference between the
initial principal amount of the Program Bonds and the proceeds of the Program Bonds to be delivered
in payment therefor pursuant to the Indenture. The Shortfall Amount consists of:



a. GSE Initial Securitization Fee of $______; and



b. GSE Special Closing Counsel Fee of $______.



The Costs of Issuance Amount consists of:





	 	a.	 	Bond Counsel Fee of $                    _
	 
	 	b.	 	Issuer’s [Financial Advisor/Special Advisor] Fee of $______
	 
	 	c.	 	[Issuer Counsel Fee] of $                    ___; and
	 
	 	d.	 	[other payees]





DATED: December ___, 2009




	 	 	 	 	 
	 	[TRUSTEE], as Trustee

 	 
	 	By  	 	 
	 	 	Title 	 
	 	 	 	 
	 






D-1