SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agreement ("Agreement'') is made by~ between, and among 

the following undersigned parties: 

The Federal Deposit Insurance Corporation as Receiver for Montgomery Bank & Trust, 

Ailey, Georgia ( .. FDIC~R"), and Convergex Prime Services, LLC ("Convergcx") (individually, 

the FDTC~R and Convergex may be refened to herein as .. Party" and collectively as the 

"Pmiies"). 

RECITALS 

WHEREAS: 

Prior to July 6, 2012, Montgomery Bank & Trust, Ailey, Georgia ("Bank") was a 

depository institution organized and existing under the laws of Georgia; 

On July 6, 2012, the Georgia Department of Banking and Finance closed the Bank and 

pursuant to 12 u.S.C. § 182l(c), the Federal Deposit Insurance Corporation was appointed 

Receiver. ln accordance with 12 U.S.C. § 182l(d), the FDIC-R succeeded to all rights, titles, 

powers and privileges of the Bank, including those with respect to its assets. 

Among the assets to which the FDIC-R succeeded were all of the B~nk's claims, 

demands, and caust:s of action against its funner introducing brokt:rs m·ising from the 

performance, nonperformance, and mannet· ofpetformance of their respective functions, duties 

and acts as introducing brokers for the Bank. 

The FDIC-R has asserted claims against Convergex as the Bank's introducing broker 

comprising those claims set forth in the FDIC-R's pre-suit Complaint provided to Convergex on 

September 18, 2015. Convergex denies that it served as the Bank's introducing broker and 

denies any liability for the FDIC-R's claims. 

The undersigned Patties deem it in their best interests to enter into thjs Agreement to 

avoid the uncertainty and expense of litigation. 
NOW, THEREFORE, in consideration of the promises, undertakings, payments, and 

releases stated herein, the sufficiency of which consideration is hereby acknowledged, th~ 

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

SECTION l: Payment to FDIC-R 

A As an essential covenant and condition to this Agreement, on or bctore thirty (30) 

calendar days following May 25,2016, Convergex agrees to pay the FDIC-R the sum of FOUR 

MILLlON TWO HUNDRED f1FTY THOUSAND AND ::--I0/100 DOLLARS ($4,250,000.00) 

("the Settlement Payment"). If the Settlement Payment is not delivered to the FDIC-R by such 

date, interest shall ac:ctue on all unpaid amounts at the rate of 5% per annum from such date until 

the date of payment. 

B. Conve'rgex shall deliver the Settlement Payment to the FDTC-R by direct wire 

transfer into the following account: 

I3A~K: Federal Home Loan Bank ofJ\ew York 

(b )(4 ) ____ -:R~O~UI'l~JN~-G~/LI I 

FOR CREDIT TO: FDIC National Liquidation Account 

(b)( 4 ) .............................. -... ACCOUNT-#;..1- I 

N cw Y ark Main Office 

101 Park A venue 

(b)(6) .. -~ 

New York, NY 10178-0599 

212-681-6000 

212-441-6890 Fax 

OTHER BENEFICIARY INFORMATION (OBI): 

1. Fund code: 10448 

.... 2 .. ____ NotiJ:~ --- 1- DRR Investigations (972) 761 -81 12 

3. Ylontgomery Bank & Trust, Convcrgcx Settlement 

C. If the FDIC-R does not receive the Settlement Payment in full on or before the 

date detcnnined by subsection A above, then the FDIC-R, in its so]e discretion, shall haw the 

right at any time prior to receipt of the Settlement Payment in full (including aU accrued interest) 

to: 

1. Extend the period of time for the Settlement Payment, including interest 

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accruing from the date determined by subsection A above, through the date of payment at a rate 

calculated in accordance with 26 U.S.C. § 6621 (a)(2); or 

2. Enforce this Agreement, in which event Convergex agrees to jurisdiction 

in the United States District for the Southcm District of Georgia and to pay all ofthc FDIC-R's 

reasonable attorney's fees and costs expended in enforcing the terms of this Agreement; or 

3. Te1minate the Agreement and institute an action on the FDIC-R's claims. 

Convergex further agrees to waive any defense based on any statute of lim'itations that would bar 

any of the FDTC-R's claims and waive all objections, defenses, claims or counterclaims, and 

covenant and agree not to assert any objections, defenses, claims or counterclaims that did not 

exist or were otherwise unavailable as of the date this Agreement was fully executed; and/or 

4. Seek any other relief available to it in law or equity. 

Any extension of time under Section I.C.l for delivery of the Settlement Payment or 

acceptance of a p011ion of the Settlement Payment shall not prejudice the FDIC-R's rights to take 

any of the actions set forth in Section I.C.2 through I.C.4 at any time prior to receipt of 

Settlement Payment (including all accrued interest) in full. 

SECTION II: Releases 

A. The PDTC-R's Release. 

Upon receipt of the Settlement Payment in full and except as provided in Section II.C., 

the FDIC~R, for itself and its successors and assigns, hereby releases and discharges Convergex, 

Goldman Sachs Execution and Clearing, LP ("GSEC"), and their respective parents, affiliates, 

employees, trustees, 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, bdonging to the FDlC-R, that arise from or relate to, the perfon:~:ui ce, 

nonperformance, and manner of performance of Convergex 's functions, duties and actions as an 

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introducing broker for the Bank, or GSEC's functions, duties and actions as clearing broker for 

Convergex, including'without limitation, the FDfC's claims asse1tcd against Convcrgex in the 

pre-suit Complaint provided to Convergex on September 18, 2015. 

B. Convergex's Release. 

Effective simultaneously with the release granted in Section TT.A. above, Convergex on 

behalf of itself~ and its parent, affiliates, employees, trustees, administrators, agents, 

representatives, aUorncys, insmcrs, successors, and assigns, hereby releases and discharges the 

FDIC-R, and its employees, officers, directors, representatives, attorneys, 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, or manner of performance ofConvergex's functions, duties and actions as an 

introducing broker for the I3ank, or GSEC's functions, duties and actions as dearing broker for 

Convergex, including without limitation, the Fl)!C-R's claims asserted against Convergcx in the 

p1·c-suit Complaint provided to Convcrgcx on September 18,2015. 

C. Exceptions from Releases by FDJC-R. 

1. Notwithstanding nny other provision of this 1\greement, the FDJC-R does 

not release, and expressly preserves fully and to the same extent as if this Agreement had not 

been executed, any claims or causes of at:tion: 

a. Against Convergcx, GSEC, or any other person or entity for 

liability, if any, incum::d as the maker, endorser or guarantor of any promissory note or 

indebtedness payable or owed by them to FDIC-R, the Bank, other financial institutions, or any 

other person or entity, including without limitation any such claims acquired by FDIC-R as 

successor in interest to the 13ank or any person or entity other than Bank; and 

b. Against any person or entity not expressly released by the FDIC-R 

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in this Agreement. 

2. !\Jotwithstanding any other provision of this Agreement, nothing in this 

Agreement shall be construed or interpreted as limiting, waiving, releasing, or compromising the 

jurisdiction and authority ofthc Federal Deposit Insurance Corporation in the exercise of its 

supervisory or regulatory authority or to diminish its ability to institute administrative 

enforcement or other proceedings seeking removal, prohibition, or any other relief it is 

authorized to seek pursuant to its supervisory or regulatory authority against any person. 

3. Notwithstanding any other provision of this Agreement, this Agreement 

does not purport to waive, or intend to waive, any claims that could be brought by the United 

States through the Department of Justice, the United States Attorney's Office for any federal 

judicial district, or any other department or agency ofthe United States as gefined by 18 U.S.C. 

§ 6. In addition, the FDIC-R specifically reserves the right to seek court-ordered restitution 

pursuant to the relevant provisions of the Mandatory Victims Restitution Act: 18 U.S.C. §§ 3322 

and 3663 et. , if appropriate. 

D. Express Reservation of Rights of Bond Carrier. 

1. Notwithstanding any other provision of this Agreement, nothing in this 

Agreement shall release or prejudice the rights of St. Paul Mercury Insurance Company or any 

other underwriter of any financial institution bond, fidelity bond, or banker"s blanket bond on 

which the Bank is an insured, to bring any claims by way of subrogation to.the claims ofthc 

FDIC-R, ngajnst (a) Convcrgcx in its capacity as introducing broker for the)3ank or in any other 

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capacity, GSEC, or (b) any other individual or entity. 

2. Nothing herein shall be construed to admit the existence of, or to establish, 

any claim or cause of action on the part of St. Paul Mercury Insurance Company or any other 

bond underwriter by way of subrogation to claims of the FDIC-R, that would not exist had this 

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Agreement not been executed. 

SECTION Ill: Waiver of Dividends and Proceeds from Litigation 

To the extent, if any, that Convergex is or was a shareholder of the Bank or its holding 

company and by vil1ue thereof is or may be entitled to a dividend, payment, or other distribution 

upon resolution of the receivership of the Hank or proceeds in any litigation that has been or 

could be brought against the Federal Deposit Insurance Corporation in any capacity or against 

the United States based on or arising out of, in whole or in part, the closing of the Bank, or any 

alleged acts or omissions by the Federal Deposit Insurance Corporation in any capacity, the 

United States government, or any agency or department of the United States govenunent in 

connection with the Bank, its conservatorship, or receivership, Convcrgcx hereby knowingly 

assigns to the FDIC-R any and all rights, titles, and interest in and to any ttnd all such dividends, 

payments, or other distributions, or proceeds. 

SECTION IV: Representations and Aclmowledgcmcnts 

A. Authorized Signatories. All of the undersigned persons represent and warrant that 

they are Parties hereto or are authorized to ~ign this Agreement on behalf of the respective Party, 

and that they have the full power and outhm·ity to bind such Party to each and every provision of 

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

undersigned Parties and their respective heirs, executors, ttustees, administrators, representatives, 

successors and assigns. 

R. Advice of Counsel. Each Pa11y 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 or her counsel. 

SECTION V: Reasonable Cooperation 

A. The Parties agree to cooperate in good faith to effectuate all the terms and 

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conditions of this Agreement, including doing, or causing their agents and aUorneys to do, 

whatever is reasonably necessary to effectuate the signing, delivery, execution, filing, rec-ording, 

and entry, of any documents necessary to perfotm the tem1s of this Agreement. 

B. Convcrgex agrees to cooperate fully with the FDIC-R in connection with any 

action required under this Agreement. Such cooperation shall consist of: . 

1. Producing all documents requested by the FOJC-R, without the necessity 

of subpoena, as dctetmined by the FDIC-R, in its sole discretion, to be relevant to the Bank; 

2. Appearing as requested by the PDIC-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; 

3. Testifying as requested hy the FDJC-R, without the necessity of a 

subpoena, in any matter relevant to the Bank, as determined hy the FDIC-R; 

4. Signing truthful affidavits, regarding any matter, as determined by the 

1·'DlC-R in its sole di~crction, to be relevant to the Bank. 

SECTION VI: Other Matters 

A. No Admission of Liability. The undersigned Pat1ics each acknowledge and agree 

that the matters set foJih in this Agreement constitute the settlement and compromise of disputed 

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claims and defenses, that this Agreement is not an admission or evidence ~liability or infirmity 

by any of them regal'ding any claim or defense, and that the Agreement shall not be offered or 

l'eceived in evidence by or against any Party except to enforce its terms. 

B. Execution in Counterparts. This Agreement may be executed in countClTJarts by 

one or more of the Parties and all such counterpatts when so executed shall together constitute 

the final Agreement, as if one document had been signed by all Patties; and each such 

counterpart, upon execution and delivery, shall be deemed a complete original, binding the 

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(b )(6 t ......... ... 

Parties subscribed thereto upon the execution by all Parties to this Agreement. 

C. Choice of Law. This Agreement shall be interpreted, construed and enforced 

according to applicable federal law, or in its absence, the laws ofthe State of Georgia. 

D. Notices. Any notices required hereunder shall be sent by registered mail, first 

class, return receipt requested, and by email, to the following: 

If to the FD IC~ : 

Barbru;a Slott !'egg 

CounSel, Federal Deposit Insurance Corpuraliuu 

3501 f~irfax Dr.,# 8·7062 

Arlington, VA 22226 

................... _ .............. J.. ... I 

and 

Alan F. Curley 

Robinson Curley & Clayton, P.C. 

300 South Wacker Drive 

Suite 1700 

Chicago, Illinois 60606 

(312) 663-31 00 

(b)(6) _ _ ~- -b--.. ----·---" 

(b)(6) ............. . 

lfto Convergex: 

S. Lavvrcnce Polk 

Sutherland Asbill & Brennan LLP 

999 Peachtree Street, NE 

Suite 2300 

Atlanta, Georgia 30309 

(404) 853-8225 

......... 1..... . .................................. . 

with a copy to: 

Convergex Prime Services LI ,C General Counsel 

1633 Broadway, 48th Floor 

New York, NY 10019 

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. ;· 

... 

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

agreement and understanding between and among tht: undt:rsigned Parties concerning the matters 

set forth herein and supersedes any prior agreements or understandings. This Agreement may 

not be amended or modified, nor may any of its provisions be waived, except in writing signed 

by the Parties bound thereby, or hy their respective authorized attorncy(s), or other 

rcpresen tati ve( s). 

. .... 

F. Titles and Captions. All section titles and captions containctfin this Agreement 

are for convenience only and shall not affect the interpretation of this Agreement. 

G. No Cq!lfidentiality. The undersigned Pru1ies acknowledge that this Agreement 

shall not be confidential and will be disclosed pursuant to the Federal Deposit Insurance 

Corporation's applicable policies, procedures, and other legal requirements. 

IN WITNESS WHEREOF, the Patties hereto have caused this Agr~ment to be executed 

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

Date: 

I I 

Date: 

FEDERAL DEPOSIT INSUR~NC~: 

CORPORATION AS RECELVER FOR 

MONTGOMERY BANK & TRUST 

ily: 

Title: 

Print Name: ~~L·/71 F_ S'v- 111 JIJPU .> 

CONVBRGEX PRIME SERVICES, LLC 

Oy: ~ l 

Title: G.cJJr;e;-( Colli{[ rd 

Print Name: S:kvr r/ g"> If e., Alt 11 ~ ,.J