(b)(4);(b) 

(n) 

SETTLEMENT AGREEMENT 

THIS SETTLEMENT AGREEMENT ("Settlement Agreement") is entered 

into and made effective as ofthe 3

rd day ofJanuary 2013 (''Effective Date"), by and 

between FEDERAL DEPOSIT INSURANCE CORPORATION. as Receiver for 

INDYMAC BANK. F.S.8. ("F DtC-R") and III CREATE, INC. ("Ill CREA TE"). The 

FDIC-Rand Ill CREATE may hereinafter be referred to individually as a "Party" or 

collectively as the "Parties". 

I. RECITALS 

1.l On orabout July 7,201 I, the FDIC-R filed a lawsuit entitled FEDERAL 

DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC BANK, 

F.S.B. v. PLACER TITLE COMPANY, el. al., in the United States District Court for the 

--~stem District ofCalifornia Case No.2:11-at-00953 (hereinafter "Action"). The FDICR sought a Ill CREATE arising out ofa mortgage loan that IndyMac Bank, 

F.S.B. ("IndyMac") had issu t ~----_the "Loan"). The Action included 

claims for breach ofcontract and negligent misrepresentation. In its answer, 

Ill CREATE denied it was liable to the FDIC-R for damages. 

1.2 The Parties desire and have agreed to settle all claims between the FDIC-R 

and Ill CREATE relating to the Loan. By entering into this Settlement Agreement, the 

Parties are not admitting the allegations as set forth in the Complaint. 

2. AGREEMENT 

NOW, THEREFORE, .in consideration ofthe mutual covenants and promises set 

forth herein, and for other good and valuable consideration, the receipt and sufficiency of 

which are hereby acknowledged by the Parties, the Parties, intending to be legally bound, 

agree as follows: 

2.1 Recitals. The Recitals set forth above are incorporated into the body of 

this Settlement Agreement as though fully set forth herein. 

2.2 Payment to the FDIC. Payment ofForty Five Thousand Dollars and 

no/cents ($45,000.00) (the "Settlement Payment") shall be paid by or on behalfof 

III CREATE to the FDIC-R. The Settlement Payment shall be made no later than 

January 30, 2013. Ill CREATE shall deliver the payment to the FDIC-R c/o Mortgage 

Recovery Law Group, LLP via check payable to: Mortgage Recovery Law Group 

Client Trust Account, Reference: III Create Settlement. 

2.3 In the event III CREATE defaults by faillng to make a timely payment to 

the FDIC-Ras set forth in paragraph 2.2 above {"Settlement Payment Due Date"), the 

FDIC-R, In its sole discretion, shall have the right to: 

a. Extend the time for payment, including interest accruing from the 

Settlement Payment Due Dale through the date of payment at a rate calculated in 

accordance with 26 U.S.C. § 6621 (b)(3); or 

SETTLEMENT AGREEMENT Page I of6 
b. Enforce this Settlement Agreement and, in such event, 

IIJ CREATE agrees to jurisdiction in Federal District Court in Cal ifomia to pay 

all ofthe FDIC-R's reasonable attorney's fees and costs expended in enforcing 

the tenns ofthis Agreement; or 

c. Declare this Settlement Agreement null and void, move to vacate 

any dismissal order, to which Ill CREATE agrees to consent, and institute an 

action on the FDIC-R's claims. as to which Ill CREATE waives any and all 

objections and defenses and covenant and agree not to assert any objections and 

defenses; and/or 

d. Seek any other relief available to it in law orequity. 

Any extension oftime for delivery ofthe Settlement Payment shall no prejudice 

the FDIC-R's right to take other action or seek any relief during or after such period of 

extension, including the right to bring an action to enforce the Settlement Agreement, or 

declare the Settlement Agreement null and void. 

2.4 Within ten (I 0) business days ofthe FDIC-R"s receipt ofthe Settlement 

Payment as set forth in paragraph 2.2, the FDIC's counsel shall file a request for dismissal 

ofthe entire Action with prejudice. 

2.5 Each Party agrees that Section 664.6 ofthe Code ofCivil Procedure ofthe 

State ofCalifornia shall apply to this Settlement Agreement and requests that the court 

retain jurisdiction over the Parties to enforce this Settlement. 

2.6 The Parties shall bear theirown costs and attorneys' fees Incurred in the 

Action. 

3. RELEASE 

3.1 Known and Unknown Claims. The FDIC-Rand III CREATE 

acknowledge and agree that the release they give to each other upon executing this 

Settlement Agreement applies to all claims for injuries. damages, or losses ofany type or 

nature (whether those injuries. damages, or losses are known or unknown, foreseen or 

unforeseen, patent or latent) arising from or in conjunction with or related to the facts and 

circumstances giving rise to the Action. 

3.2 The Panics hereby expressly waive application ofCalifornia Civil Code 

§/542as it relates to the Action. The Parties certify that they have read and understood 

the following provisions ofCalifornia Civil Code §JS42 which states in pertinent part as 

follows: 

A general release does not extend to claims which the creditor 

does not know or suspect to exist in his or her favor at the 

time ofexecuting the release, which ifknown by him or her 

must have materially affected his or her settlement with the 

debtor. 

SETILEMENT AGREEMENT Pagc2of6 
3.3 The Parties understand and acknowledge that the significance and 

consequence ofits waiver ofCalifornia Civil Code §1542 is that even ifeither Party 

should eventually suffer additional damages arising from or in conjunction with the 

Action or any facts or circumstances related to the Action, that Party will not be able to 

mJke any claim against any other Party for those damages. Furthermore. each Party 

acknowledges that they consciously intend these consequences even as to claims for 

damages that may exist as ofthe date ofthis release relating to the Action, but which that 

Party does not know exists, and which, if known, would materially affect that Party's 

decision to execute this release, regardless ofwhether that Party's lack ofknowledge is 

the result ofignorance, oversight, error, negligence, orany other cause. 

3.4 Except for the rights, duties, and obligations set forth in this Settlement 

Agreement, the Parties each hereby fully, finally, and forever release and discharge the 

other Parties, and any and all ofits respective, employees, brokers, investors, members, 

partners, joint venturers, independent contractors, attorneys, accountants, insurers, agents, 

investors, representatives, officers, directors, and any corporation, partnership or limited 

liability company which was or is at any time the parent or wholly owned subsidiary of 

such entity, and any such corporation's,. partnership's or limited liability company's 

officers, directors, employees and/or agents, or any corporation, partnership or limited 

liability company which was or is an affiliate ofsuch entity by virtue ofcommon 

ownership or control, and any such corporation's, partnership's or limited liability 

company's, officers, directors, employees and/or agents ofand from any and all actions, 

causes ofaction, claims, demands, damages, debts, losses, costs, expenses, attorney fees 

or other liabilities ofevery kind and nature whatsoever, whether legal or equitable and 

whether known or unknown, arising out of, resulting from, or relating to, in any manner, 

to any damages, loss, or liability arising from, in conjunction with, or related to the 

Action or any facts or circumstances related to the Action. 

3.S Notwithstanding any other provision ofthis Settlement Agreement, the 

FDIC-R does not release, and expressly preserves fully and to the same extent as ifthe 

Settlement Agreement had not been executed any claims against UI CREA TE arising out 

ofexisting or failed tinanci11I institutions other than IndyMac. The FDIC-R represents 

that it retains the rights to pursue any claims arising out ofor related to the Loan against 

other parties. 

3.6 Notwithstanding any other provision, by this Settlement Agreement, the 

FDIC-R does not release, and expressly preserves fully and to the same extent as ifthe 

Settlement Agreement had not been executed, any action taken by any other federal 

agency. In addition, this Settlement Agreement does not purport to waive. or intend to 

waive, any claims which could be brought by the United States through either the 

Department ofJustice or the United States Attorney's Office in any federal judicial 

district. 

4. MISCELLANEOUS 

4.1 Conditions orExecution. Each Party acknowledges and warrants that its 

execution ofthis Settlement Agreement is free and voluntary. 

SETTLEMENT AGREEMENT 
4.2 No Admission. It is agreed that no Party hereto admits liability or 

wrongdoing ofany nature, and that this Settlement Agreement is made as a compromise 

ofdisputed claims. 

4.3 Fair Meaning. The Parties hereto further agree that the language ofall 

parts ofthis Settlement Agreement shall in all cases be construed as a whole, according to 

its fair meaning, and not strictly for or against any ofthe Parties 

4.4 Governing Law. The Parties agree to submit to the Courts ofthe City 

and County ofSacramento, California. for any dispute arising out ofthis Settlement 

Agreement, or related thereto, and consent to the jurisdiction ofsaid Courts and further 

agree that any and all matters ofdispute shall be adjudicated, governed and controlled 

under California law. 

4.S Attorneys Fees and Costs. Should any action be commenced to enforce, 

interpret, or seek damages, injunctive relief, or specific perfonnance for violation ofthis 

Settlement Agreement, the prevailing party shall, in addition to any other available relief, 

be entitled to an award ofreasonable attorney's fees and litigation expenses incurred in 

the prosecution or defense of the action, including any appeal. 

4.6 Severabllity. The Parties hereto agree that ifany provision ofthis 

Settlement Agreement is declared by any court to be illegal or invalid, the validity ofthe 

remaining parts, tenns or provisions shall not be affected thereby, and such illegal or 

invalid part, tenn or provision shall be deemed not to be part ofthis Settlement 

Agreement. 

4.7 Binding Effect. This Settlement Agreement shall be binding upon and 

inure to the benefit ofthe Parties and their respective heirs, personal representatives, 

successors, and assigns. 

4.8 Review and Understanding. The Parties have entered into this 

Settlement Agreement voluntarily, having fully read and fully understood the meaning 

and effect ofall ofits terms and provisions, and fully understanding Its and their costs 

and risks. Each ofthe Parties has consulted with legal counsel concerning this Settlement 

Agreement and has conducted such Inquiry as they deem necessary and advisable prior to 

entering into this Settlement Agreement. The Parties enter into this Settlement 

Agreement understanding that facts or other circumstances may exist which are presently 

unknown or undisclosed, orwhich are different from or other than those which they 

believe to be the case, and the Parties voluntarily assume all risks attendant to such 

unknown, undisclosed, different, or additional facts or other circumstances. 

4.9 Number. Whenever appllcable, the singular shall include the plural, and 

the plural shall include the singular. 

4.10 Counterparts/Execution. This Settlement Agreement may be executed 

in one or more counterparts, all ofwhich shall fonn a single agreement. A Party's 

signature on this Settlement Agreement by facsimile or e-mail shall be valid and effective 

SETTLEMENT AGREEMENT P1111c 4 or6 
for all purposes as an original signature, provided. however, that the original signature 

shall be produced upon request. 

4,11 Waiver. No tenn or condition ofthis Settlement Agreement shall be 

deemed to have been waived, nor shall there be an estoppel against the enforcement of 

any provision ofthis Settlement Agreement, except by written instruments signed by the 

Party charged with the waiver or cstoppel. No written waiver shall be deemed a 

continuing waiver unless specifically stated therein, and the written waiver shall operate 

only as to the specific term or condition waived, and not for the future or as to any other 

act than that specifically waived. 

4.12 Headings. The headings ofparagraphs herein arc intended solely for the 

convenience ofreference and shall not control the meaning or interpretation ofany ofthe 

provisions ofthis Settlement Agreement. 

4.13 Subsequent Agreements. The Parties agree that, upon the reasonable 

request ofthe other Party, they shall execute, IKlknowledge, and deliver any additional 

instruments ordocuments that may reasonably be required to carry out the intentions of 

this Settlement Agreement, including such instruments as may be required by the laws of 

any jurisdiction, now in effect or hereinafter enacted, that may affect the rights ofthe 

Parties as between themselves or others with respect to their rights and obligations 

created by this Settlement Agreement. 

4.14 Entire Agreement. The Parties hereto further agree and promise that this 

Settlement Agreement sets forth the entire agreement between and among the Parties and 

fully supersedes any and all prior negotiations, agreements or understandings made 

between or among the Parties. This Settlement Agreement shall not be modified except 

In a writing signed by the Parties or their authorized representatives. 

IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties 

have executed this Settlement Agreement as ofthe date set forth in the opening paragraph l(b )(6) ofthis Settlement Agreement. 

DA TED: .Airri' :::::d!9•.,_ Ill Create lne . 

. HAi I, 2,o/'s 

ByL.______....,....-________.,__ 

Signature 

,~lfifMVui~-(JtJJ,:e<l_ 

Type/Print Name andTille 

SETTLEMENT AGREEMENT Page 5 or6 
DATED: Aj,rll __, 21»3 FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for INDYMAC (b)(6) 

BANK, F.S.B. 

...._.,,,,....___________ _ By: 

Signature 

SETTLEMENT AOREEMENT Pagc6of6