(b)(2) 

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(b)(4) 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE 

THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE 


("Settlement Agreement") is entered into and made effective as of the 9thday of March, 


2010 ("Effective Date"), by and between the Federal Deposit Insurance Corporation as 


Receiver of lndyMac Bank, FSB ("FDIC'') and Hometrust Mortgage Company 


("HOMETRUST"). The FDIC and HOMETRUST may hereinafter be referred to 


individually as a "Party" or collectively as the "Parties." 


RECITALS 

1.1 HOMETRUST sold and/or delivered mortgage loans to lndyMac Bank, 


FSB, pursuant to various written agreements. A dispute has arisen between the Parties 


with respect to outstanding demands for repurchase and/or indemnity. Specifically, 


lnd).'Mac Bank, FSB made demands to HOMETRUST for repurchase and/or 


indemnification based upon findings of breach ofthe representations and warranties as 


set forth in the written agreements. 


1.2 Without admitting liability, the Parties desire to and have agreed to settle 


any and all repurchase and/or indemnification claims arising out of, or related in any 


manner to, any mortgage loan sold directly by HOMETRUST to lndyMac Bank, FSB 


(the "LOANS"), upon the terms and conditions hereinafter set forth. 


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: 

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

this Settlement Agreement as though fully set forth herein. 

1.4 Payment of the Settlement Agreement. HOMETRUST shall pay the 

total sum of $30,000 (thirty thousand dollars) (the "Settlement Funds") by no later than 

March 15,2010. The payment shall bt: made by wire transfer made rayable to 

"Mortgage Recov~up Trust Account," Account Number:_ l (b)(4) 

Routing Number; L_______JRefcrcncc: Hometrust Settlement. . .. ~ ­

RELEASE 

1.5 Unknown Claims. Each Party acknowledges and agrees that this 

SE"I"H.EMENT AGRtEMENT & MUTUAL RELEASE 

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... 


Settlement Agreement applies to all claims for injuries, damages, or losses of any type or 

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

unforeseen, patent or latent) which each Party may have against the other Party arising 

from the LOANS. Each Party hereby expressly waives application of California Civil 

Code §/542 and any other similar statute or rule. 

1.6 Each Party certifies that it has read and understands the following 


provisions ofCalifornia Civil Code §1542, 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 of executing the release, which if known 

by him or· her must have materially affected his or her 

settlement with the debtor." 

1.7 Each Party understands, acknowledges arid agrees that the significance 

and consequence ofits waiver ofCalifornia Civil Code §1542 is that even if either Party 

should eventually suffer additional damages arising out of the LOANS, the claims and 

causes ofaction that were or could have been asserted relating to the LOANS, or any 

facts or circumstances related to the repurchase of and/or indernnification of losses 

associated with the LOANS, that Party will not be able to make any claim for those 

damages. Furthennore, each Party acknowledges and agrees that they consciously intend 

these consequences will apply to claims for damages that may exist as ofthe date of this 

release but which that Party does not know exists, and which, ifknown, \Vould materially 

affect that Party's decision to execute this release, regardless of whether that Pa11y's lack 

of knowledge is the resuIt of ignorance, oversight, error, negligence, or any other cause. 

1.8 Each Party hereby fully, finally, and forever releases and discharges the 

other Party, and any and all ofits respective past, present, and future affiliates, 

employees, members, partners, joint venturers, independent contractors, attorneys, 

insurers, investors, successors, assigns, representatives, officers, directors, shareholders, 

predecessors, successors and assigns, and any corporation, partnership or limited liability 

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

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

directors, and!or employees, or any corporation, partnership or limited liability company 

which was or is an affiliate ofsuch entity by virtue of commo11 ownership or control, and 

any such corporation's, partnership's or limited liability company's, officers, directors, 

and/or employees ofand from any and all actions, causes of action, 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, the LOANS, the claims and causes of 

action that were or could have been asserted relating to the LOANS, or any facts or 

circumstances related to the repurchase of and/or indemnification of losses associated 

SE'I"ri.EMENT AGf(EEMENT & MUnJAI. RELEASE 

l'agc 2 of5 
with the LOANS. 

1.9 Notwithstanding any other provision in this Settlement Agreement. the 

FDIC does not release, and expressly preserves fully and to the same extent as if the 

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 for any federal judicial 

district. In addition, the FDIC specifically reserves the right to seek court ordered 

restitution pursuant to the relevant provisions ofthe Victim and Witness Protection Act, 

18 U.S.C. § 3663, et seq., ifappropriate. 

1.10 Conditions ofExccution. Each Party acknowledges and warrants that its 

execution ofthis Settlement Agreement is free and voluntary. 

1.11 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 

of disputed claims. 

1.12 Fair Meaning. The Parties hereto further agree that the language of all 

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 of the Parties. · 

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

and County ofLos Angeles, 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 of dispute shall be adjudicated, governed and controlled 

under California Jaw. 

1.14 Attorneys' Fees. Should any action be commenced to enforce, interpret, 

or seek damages, injunctive relief, or specific performance for violation of this Settlement 

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

to an award of reasonable attorney's fees and litigation expenses incurred in the 

prosecution or defense ofthe action, including any appeal. 

1.15 Severability. The Parties hereto agree that if any provision ofthis 

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

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

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

Agreement. 

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

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

SElTLEMENT AGREEMENT & MUTUAL RELEASE 


Pngc 3 nf5 

successors, and assigns. 

1.17 Review and Understanding. The Parties have entered into this 

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

and effect of all ofits terms and provisions. and fully understanding its and their costs 

and risks. Each ofthc 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, or which 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. 

1.18 Number. Whenever applicable, the singular shall include the plural. and 

the plural shall include the sing~lar. 

1.19 Counterparts/Execution. This Settlement Agreement may be executed 


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


signature on this Settlement Agreement by facsimile shall be valid and effective for all 


purposes as an original signature, provided, however, that the original signature shall be 


produced upon request. 


1.20 Waiver. No term 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 estoppel. 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. 


1.21 Headings. The headings of paragraphs herein are intended solely for the 

convenience of reference and shall not control the meaning or interpretation of any of the 

provisions of this Settlement Agreement. 

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

request of the other Party, they shall execute, acknowledge, and deliver any additional 

instruments or documents 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 of the 

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

created by this Settlement Agreement. 

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

SE'ITLEMENT AGREEMENT & MUTUAL RELEASE 

l'agc 4 ors 
(b)(6) 

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Settlement Agreement sets forth the entire agreement benveen 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 

of this Settlement Agreement. 

For: The FDIC as Receiver of For: Hometrust Mortgage Company 

(b)(6) Indy Mac Bank, FSB 

By: I I ~ I Name: R~· "= \tcL"J S.(i~l{ Name: Patricia ~- Gustafson

Title:. C Sr. Vice President CH2 ~ ~~- ~ Title: 


Date: 3 ~ 1s- .- ~Q lu Date: 3/9/2010 


SE"ITLEMENT AGREEMENT&. MUTUAL RELEASE 

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