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owners and/or shareholders. Provided, however, that the release of Hovey shall not
become effective until: (a) he has made all payments to the FDIC-R required of him
under Section L.A of this Agreement (plus any accrued interest) described in Section I;
and (b) a period of 91 days has expired after his last settlement payment is made, and
Hovey has not filed a voluntary petition in bankruptcy or had an involuntary petition in
bankruptey filed against him within that time.

2. Release of Garman: The FDIC-R, for itself and its successors and assigns,
hereby releases and discharges Garman and his respective heirs, executors,
administrators, representatives, successors and assigns, from any and all claims,
demands, obligations, damages, actions, and causes of action, direct ot indirect, in law or
in equity, belonging to the FDIC-R, that arise from or relate to: (a) the performance,
nonperformance, or manner of performance of the Settling Defendants’ respective
functions, duties and actions as officers and/or ditectors of the Bank and/or as parties to
the LPO Agreement, including without limitation the causes of action alleged in the
ResortBane Action; and (b) any Aiture claims that the FDIC-R may assert against the
Bank and/or its directors, officers, owners and/or shareholders, Provided, however, that
the release of Garman shall not become effective until: (a) he has made all payments to
the FDIC-R required of him under Section LA of this Agreement (plus any accrued
interest) described in Section 1; and (b) a period of 91 days has expired after his last
settlement payment is made, and Garman has not filed a voluntary petition in bankruptcy
or had an involuntary petition in bankruptcy filed against him within that time.

3. Release of ResortBanc: The FDIC-R, for itself and its successors and

assigns, releases and discharges ResortBanc and its respective heirs, executors,


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produce documents protected by the attorney-client privilege or work product
protection;

b. making themselves available upon request by the FDIC-R at
reasonable times and places for interviews regarding facts, as determined by the
FDIC-R in its sole discretion, to be relevant to the Bank;

g appearing to testify, upon request by the FDIC-R, in any matter
determined by the FDIC-R in its sole diseretion, to be related to the Bank, without
the necessity of subpoena;

d, signing truthful affidavits upon request by the FDIC-R, regarding
any matter, as determined by the FDIC-R in its sole discretion, to be relevant to
the Bank,

H. Advice of Counsel. Each Party hereby acknowledges that it has consulted with
and obtained the advice of counsel prior to executing this Agreement, and that this

Agreement has been explained to that Party by his counsel.

10


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Effective simultaneously with the releases granted in Sections I]. A-B. above, the
Settling Defendants, and their respective heirs, executors, administrators, representatives,
successors and assigns, hereby release and discharge each other from any and all claims,
demands, obligations, damages, actions, and causes of action, direct or indirect, in law or in
equity, that arise from or relate to the performance, nonperformance, or manner of performance
of their respective functions, duties and actions as officers and/or directors of the Bank, including

without limitation the causes of action alleged in the ResortBane Action,

SECTION V: Representations and Acknowledgements

A No Admission of Liability, The undersigned Parties each acknowledge and agree
that the matters set forth in this Agreement constitute the settlement and compromise of disputed
claims, and that this Agreement is not an admission or evidence of liability by any of them
regarding any claim.

B. Execution in Counterparts, This Agreement may be executed in counterparts by
one on more of the patties named herein and all such counterparts when so executed shall
together constitute the final Agreement, as if one document had been signed by all parties hereto;
and each such counterpart, upon execution and delivery, shall be deemed a complete original,
binding the party or parties subscribed thereto upon the execution by all parties to this
Agreement.

on Binding Effect. Each of the undersigned persons represents and warrants that
they are a party hereto or are authorized to sign this Agreement on behalf of the respective Party,
and that they have the full power and authority to bind such party to each and every provision of

this Agreement. This Agreement shall be binding upon and inure to the benefit of the


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administrators, representatives, successors and assigns, from any and all claims,
demands, obligations, damages, actions, and causes of action, direct or indirect, in law or
in equity, belonging to the FDIC-R, that arise from or relate to: (a) the performance,
nonperformance, or manner of performance of ResortBane’s respective functions, duties
and actions under the terms of the LPO Agreement, including without limitation the
causes of action alleged in the ResortBane Action; and (b) any future claims that the
FDIC-R may assert against the Bank and/or its directors, officers, owners and/or
shatcholders. Provided, however, that the release of ResoriBanc shall not become
effective until: (a) Hovey and Garman have made all payments to the FDIC-R required
of them under Section LA of this Agreement (plus any accrued interest) described in
Section J; and (b) a period of 91 days hag expired after his last settlement payment is
made and neither Hovey nor Garman have filed a voluntary petition in bankruptey or had
an involuntary petition in bankruptcy filed against them within that time.

B. Release of FDIC-R. by the Setiling Defendants.

Effective simultaneously with the releases granted in Section ILA above, the Settling
Defendants, on behalf of themselves individually, and their respective heirs, executors,
administrators, agents, representatives, successors and assigns, hereby release and discharge the
FDIC-R, and its employees, officers, directors, representatives, successors and assigns, from any
and all claims, demands, obligations, damages, actions, and causes of action, direct or indirect, in
law or in equity, that arise from or relate to, the Bank or to the performance, nonperformance, ot
manner of performance of the Bank as party to the LPO Agreement, including without limitation
the causes of action alleged in the ResortBanc Action; and any future claims that the Settling
Defendants may assert against the Bank or the FDIC-R,

Cc. Release by Setiling Defendants of Each Other.



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void; (b) the FDIC-R may retain the Settlement Funds of the non-disclosing Settling
Defendant(s); (c) the FDIC-R may sue the non-disclosing Settling Defendant(s) for damages, an
injunction, and specific performance for the breach of this agreement; and (d) the FDIC-R may
seek to vacate any dismissal order and reinstate the FDIC-R’s claims against the non-disclosing
Settling Defendant(s). The Settling Defendants agree that if, in their affidavits or financial
statements, they have failed to disclose any interest, legal, equitable, or beneficial, in any asset
that existed as of the date of the affidavits and financial statements, the non-disclosing Settling
Defendant(s) consent to the reinstatement of FDIC-R’s claims and waive any statute of
limitations that would bar any of the FDIC-R’s claims against them.

G. Reasonable Cooperation.

1 The undersigned parties agree to cooperate in good faith to effectuate all
the terms and conditions of this Agreement, including doing or causing their agents and
attorneys to do whatever is reasonably necessary to effectuate the signing, delivery,
execution, filing, recording, and entry, of any documents necessary to conclude the
ResortBane Action, and to otherwise perform the terms of this Agreement.

2. Fortber, the Settling Defendants agree to cooperate fully with the FDIC-R
in connection with any action required under this Agreement. Any such cooperation that
involves any out of pocket costs is subject to reasonable reimbursement by the FDIC-R
pursuant to its internal guidelines and policy for such reimbursement. Such cooperation
shall consist of:

a producing all documents requested by the FDIC-R, without the
necessity of subpoena, as determined by the FDIC-R, in its sole discretion, to be

relevant to the Bank, except that the Settling Defendants shall not be required to


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SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (“Agreement”) is made as of hist] “Bey of
December, 2012, by, between, and among the following undersigned Parties:

The Plaintiff Federal Deposit Insurance Corporation in its capacity as receiver of
Colorado Capital Bank ("FDIC-R"}, and Defendants ResortBanc Financial, Inc., Randal Garman
and Scott Hovey (collectively the "Settling Defendants”), (The FDIC-R and the Settling

Defendants may be referred to herein individually as a “Party” and collectively as the “Parties”.)

RECITALS
WHEREAS:

Ac Prior to July 8, 2011, Colorado Capital Bank ("Bank") was a depository
institution organized and existing under the laws of Colorado,

B. On March 24, 2011, the Bank filed a Complaint for Declaratory Judgment and
Damages against Defendant ResortBanc Financial, Inc. (“ResortBanc”) in the District Court for
Douglas County, Colorado.

ion On April 28, 2011, ResortBanc filed its Answer and Counterclaim against the
Bank in the District Court for Douglas County, Colorado.

dD On July 8, 2011, the Bank was closed by the Colorado Division of Banking and,
pursuant to 12 U.S.C. § 1821(c), the FDIC-R was appointed receiver. In accordance with 12
US.C. § 1821(d), the FDIC as receiver succeeded to all tights, titles, powers and privileges of
the Bank, including those with respect to the Bank’s claims against the Settling Defendants.

EB On January 30, 2012, the FDIC-R filed a Notice of Removal of the Douglas

County lawsuit to the United States District Court for the District of Colorado, where it was

4482168


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Execution Copy

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to bs executed

by each of them or their duly authorized representatives on the dates hereinafter subscribed.

Date:

FEDERAL DEPOSIT INSURANCE CORPORATION

BY.

NAME:

RESORTBANC FINANCIAL, INC.

(b)(6)

BY: 7]

NAME: S74 theg
wn, Yee feteihorl?-

bates fp LLe. SCOTT HOVEY
(b)(6) f



(b)(6)

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Execution Copy

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed

by cach of them or their duly authorized representatives on the dates hereinafter subscribed.

pate: Del? Lek FEDERAL DEPOSIT INSURANCE CORPORATION

BYE]

NAME AL fa Kitson

aire: Ceuase |

Date: RESORTBANC FINANCIAL, INC.
BY:
NAME:
TITLE:.
SCOTT HOVEY

Date:



Pa ge 8 Execution Copy

undersigned parties and their respective heirs, executors, administrators, representatives,
successors and assigns.

Dd Choice of Law and Venue. This Agreement shall be interpreted, construed and
enforced according to applicable federal law, or in its absence, the laws of the State of Colorado.
The United States District Court for the District of Colorado shall be the exclusive venue for any
disputes related to this Agreement.

E. Entire Agreement and Amendments, This Agreement constitutes the entire

agreement and understanding between and among the undersigned parties concerning the matters
set forth herein. This Agreement may not be amended or modified except by another written
insirument signed by the Party or Parttes to be bourid thereby, or by their respective authorized

attorney(s) or other representative(s).

F, Specific Representations Warranties and Disclaimer, The Settling Defendants
expressly acknowledge that in determining to settle the claims released here, the FDIC-R has
reasonably and justifiably relied upon the accuracy of financial information in the affidavits
submitted. If, in their affidavits or financial statements, the Settling Defendants have failed to
disclose any interest, legal, equitable, or beneficial that existed as of the date of the affidavits and
financial statements, in any asset, the Settling Defendants agree to cooperate fully with the
FDIC-R to transfer their interest in the asset to the FDIC-R and to sign any and all documents
necessary to transfer their interest in the asset to the FDIC-R. Moreover, if, in their affidavits or
financial statements, the Settling Defendants have failed to disclose any interest, legal, equitable,
or beneficial that existed as of the date of the affidavits and financial statements, in any asset, the
FDIC-R in its sole discretion, may exercise one or more or all of the following remedies: (a) the

FDIC-R may declare the releases granted to the non-disclosing Settling Defendant(s) as null and


Pa ge 4 Execution Copy

set forth in Section LA above, The failure of one Party to deliver its share of the Settlement
Funds shall not affect the validity of this Agreement with respect to a Party that has delivered its

share of the Settlement Funds.

SECTION I: Stay, Stipulation and Dismissal

A. Upon execution of this Agreement by each of the undersigned Parties, they shall
jointly submit a stipulation requesting that the ResortBane Action be stayed pending final
payment of the Settlement Funds (plus any accrued interest) required by Section I of this
Agreement,

B. Upon the passing of 91 days after the FDIC-R’s receipt of the final payment of
the Settlement Funds (plus any accrued interest) the undersigned Parties agree to enter a
stipulation providing that the ResortBane Action shall be dismissed with prejudice, with each

party to bear its own costs and attorneys’ fees as these were originally incurred.

SECTION Ti: Releases
A. Release of Setiling Defendants by FDIC-R.

L Release of Hovey: The FDIC-R, for itself and its successors and assigns,
releases and discharges Hovey and his respective heirs, executors, administrators,
representatives, successors and assigns, from any and all claims, demands, obligations,
damages, actions, and causes of action, direct or indirect, in law or in equity, belonging to
the FDIC-R, that arise from or relate to: (a) the performance, nonperformance, or manner
of performance of the Settling Defendants’ respective functions, duties and actions as
officers and/or directors of the Bank and/or as parties to the LPO Agreement, including
without limitation the causes of action alleged in the Resort{Banc Action; and (b) any

future claims that the FDIC-R may assert against the Bank and/or its directors, officers,


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account designated by FDIC-R, or by certified or cashier’s check drawn upon a depository
institution acceptable to FDIC-R. In the event that the Settlement Funds are not delivered to the
FDIC-R or its counsel on or before the deadlines set forth above, interest shall accrue on all
unpaid amounts at the rate of 5% per annum acctuing from the date that payment was due,

cC. Tn addition, and without waiving any other rights that the FDIC-R may have, in
the event that all Settlement Funds (including all accrued interest) are not received by the FDIC-
R on or before January 31, 2013, then, with respect to the Party or Parties that fail to deliver their
share(s) of the Settlement Funds, the FDIC-R, in its sole discretion, shall have the right at any
time prior to receipt of all Settlement Funds (including all accrued interest) to declare this
Agreement null and void, shall have the right to extend this Agreement for any period of time
until it receives all Settlement Funds (including all accrued interest), and/or shall have the right
to enforce this Agreement against the Party or Parties, failing to deliver their share of the
Settlement Funds, in which event the non-delivering Party or Parties agree to jurisdiction in the
Federal District Court for the District of Colorado and agree to pay all of the FDIC-R’s
reasonable aitorney’s fees expended in enforcing the terms of this Agreement. Any decision by
the FDIC-R to extend the terms of this Agreement or to accept a portion of the Settlement Funds
shall not prejudice its rights to declare this Agreement null and void with respect to the non-
delivering Party or Parties, at any time prior to receipt of all Settlement Funds (including all
accrued interest) or to enforce the terms of this Settlement Agreement; provided however, that in
the event the FDIC-R declares this Agreement null and void, the FDIC-R will return all amounts
paid to it under this Agreement by the non-delivering Party or Parties. In no event shall the
FDIC-R declare this Agreement null and void with respect to any Party that has delivered its

share of the Settlement Fund (including any accrued interest) on or before the payment deadlines

w


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assigned Civil Action No, 12-cv-00243-WIM-MIW.

F. On July 2, 2012, the FDIC-R filed a Motion to Join Additional Defendants and for
Leave to Amend Complaint. The Motion was granted on September 5, 2012, whereby the Court
joined ResortBanc’s officers, Randall Garman (“Garman”) and Scott Hovey (“Hovey”), as
additional defendants and accepted the FDIC-R’s Amended Complaint which included claims
against Garman and Hovey in their individual capacities. The claims for declaratory judgment
and damages (the “ResortBane Action”) against all Settling Defendants — ResortBanc, Garman
and Hovey -- are currently pending. The Settling Defendants have denied liability for these
claims,

Gg, The undersigned parties deem it in their best interests to enter into this Agreement
to avoid the uncertainty, trouble, and expense of further litigation.

NOW, THEREFORE, in consideration of the promises, undettakings, payments, and
releases stated herein, the sufficiency of which consideration is hereby acknowledged, the

undersigned Parties agree, each with the other, as follows:

SECTION I: Payment to FDIC-R

A. As an essential covenant and condition to this Agreement, the Settling Defendants
agree to pay the FDIC-R the sum of $35,000 (“the Settlement Funds”). Payment of the
Settlement Funds shall occur as follows:

1. Hovey shall pay the sum of $12,506 no later than December 15, 2012, and

an additional $12,500 no later than January 31, 2013.

2. Garman shall pay the sum of $5,000 no later than December 15, 2012, and

an additional $5,000 no later than January 31, 2013.

B The Settlement Funds shall be delivered to FDIC-R by direct wire transfer into an

ce


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Date: (224 (Pee RANDAL GARMAN

(b)(6)

58819524