SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agreement ("Agreement") is made as of this 29th day of 

July, 2013, by, between, and among the tol1owing undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation, as receiver ofBankUnitcd, FSB 

("FDIC-R"), and Creative Title Services, Inc. ("Creative Title") and Commonwealth Land Title 

Insurance Company ("Commonwealth") (col1cctivcly the "Settling Dcfcndants")(the FDlC-R 

and the Settling Defendants may also be referred individually as "Party" and collectively as the 

"Parties"). 

RECITALS 

WI IEREAS, prior to May 21, 2009, Bank United, F.S.H. ("Hank") was a federal savings 

bank organized under the laws of the United States. 

On May 21, 2009, the Bank was closed by the Office of Thrift Supervision ("OTS") and 

pursuant to 12 U.S.C. § 1821(c), the FDIC was appointed receiver. In accordance with 12U.S.C. 

§ 1821 (d), the FDIC as receiver succeeded to all rights, titles, powers and privileges of the Hank, 

including those with respect to its assets. 

Among the assets to which the FDIC as receiver succeeded were any and al1 of the 

Bank's claims, demands, and causes of actions against its closing agents arising from the 

performance, nonperformance and manner of performance of their respective functions, duties 

and acts on behalf of the Bank 

On May 17, 2012, the FDTC-R filed a complaint for money damages against the Settling 

Defendants. Those claims for damages are now pending in the United States District Court for 

the Southern District of Florida in the matter of FDIC-R Bank United. fSB v. Creative Title 

Services, Inc. and Commonwealth Land Ji'tle Ins. Co., Case No 12-cv-21860-KING (the 
''Action"). The Settling Defendants have denied liability for the PDIC-R 's claims. 

The Settling Defendants 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, undertakings, payments, and 

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

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

Sli:CTION 1: Payment to FIHC-R 

A. As an essential covenant and condition to this Agreement, Commonwealth agrees 

to pay the FDIC-R the sum of Two Hundred Eighty Five Thousand Dollars ($285,000) ("the 

Settlement Amount") to Welbaum Guernsey's Trust Account on or before September 1 0, 20 13 

(the "Payment Due Date''), in full and final settlement of the Action. 

B. ln addition, and without waiving any other rights that the FDTC-R may have, in 

the event that all Settlement Amount is not received by the FDIC-R on or before the Payment 

Due Date, then the .FDIC-R, in its sole discretion, shall have the right at any time prior to receipt 

ofthe full Settlement Amount to declare this Agreement null and void, shall have the right to 

extend the Payment Due Date for any period of time until it receives the full Settlement Amount, 

and/or shall have the right to enforce this Agreement against the Party failing to deliver the 

Settlement Amount, in which event lhe non-delivering Party agrees to jurisdiction in United 

States District Court for the Southern District of Florida and agrees that the non-prevailing party 

shall pay the prevailing party's reasonable attorney's fees expended in enforcing the terms of this 

Agreement. Any decision by the FDJC-R to extend the Payment Due Date or accept a portion of 

the Settlement Amount shall not prejudice its rights to declare this Agreement null and void with 

respect to the non-delivering Party at any time prior to receipt of the full Settlement Amount or 

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to enforc.e the terms of this Settlement Agreement. 

SECTION II: Stipulation and Dismissal 

Upon execution of this Agreement by each of the undersigned Parties, and receipt of the 

Settlement Amount, the FDIC-R shall file a notice of dismissal the Action with prejudice and 

proposed order dismissing the Action with prejudice. The undersigne-d parties abrree to enter 

stipulation(s) providing that the dismissal(s) set forth above shall be with prejudice, with each 

party to bear its own attorney's fees and costs as these were originally incurred. 

S.RCTION III: Releases 

A. Release of Individual Settling Defendant() by FDIC-R. 

Effective upon receipt in full of the Settlement Amount described in SECTION(S) I and 

II above, and except as provided in Section III D hclow, the FDIC-R, for itself, its predecessors, 

successors and assigns, hereby releases and discharges each of the Settling Defendants and their 

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, known or unknown, whether accrued or unaccrued, and whether sounding in 

contract, tort, statute or otherwise, belonging to the FDlC-R, that arise from or relate to the 

performance, nonperformance, or manner of performance of the Settling Defendants' respective 

functions, duties and actions as closing agents and/or title insurers and/or under the closing 

protection letters issued to the Bank including \Vithout limitation the causes of action alleged in 

the Action. 

H. Commonwealth's Release of FDfC-R. 

E1lective simultaneously with the release granted in Section III A above, 

Commonwealth, for itself, ito; predecessors, successors, assigns, all current and former employees 

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and personnel, attomeys, oilicers, directors, stockholders, parent corporations, subsidiary 

corporations, affiliate..<;, agents, and representatives, hereby remises, releases, acquits, satisfies, 

and forever discharges FDIC-R and its respective predecessors, successors, assigns, all current 

and former employees and personnel, attorneys, ofiicers, directors, stockholders, parent 

corporations, subsidiary corporations, affiliates, agents, insurers and representatives, from any 

and all liability and from any and all causes of action, suits, debts, dues, sums of money, 

accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, 

promises, variances, trespasses, damages, judgments, executions, claims and demands of 

whatever name or nature in any manner arisen, in law or in equity, whether known or unknown, 

whether accrued or unaccrued, and whether sounding in contract, tort, statute or otherwise, 

derived from, based upon, or arising out of the c.laims and allegations set forth in the Action. 

C. Creative Title's Release of FDIC-R. 

Effective simultaneously with the release granted in Section III A and III B above, 

Creative Title, for itself, its predecessors, successors, assigns, all current and former employees 

and personnel, attorneys, officers, directors, stockholders, parent corporations, subsidiary 

corporations, affiliates, agents, and representatives, hereby remises, releases, acquits, satisfies, 

and forever discharges FDIC-R and its respective predecessors, successors, assigns, all current 

and former employees and personnel, attorneys, officers, directors, stockholders, parent 

corporations, subsidiary corporations, affiliates, agents, insurers and representatives, from any 

and all liability and from any and all causes of action, suits, debts, dues, sums of money, 

accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, 

promises, variances, trespasses, damages, judgments, executions, claims and demands of 

whatever name or nature in any manner arisen, in law or in equity, whether known or unknown, 

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whether accrued or unaccrued, and whether sounding in contracl, tort, statute or otherwise, 

deriv d from, based upon, or arising out of the claims and allegations set forth in the Action. 

0 . Express Reservations From Releases. 

1. Notwithstanding any other provision, by this Agreement, the PDIC-R does 

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

been executed, any claims or causes of action: 

a. against the Settling Defendants or any other person or entity for 

liability, if any, incurred as the maker, endorser. or guarantor of any promissory note or 

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

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

suc.cessor in interest to the Dank or an y person or entity other than Bank; 

b. against any person or entity not expressly released in this 

Agreement; and 

c. which arc not expressly released in Paragraphs TJJ.A, above. 

2. Notwithstanding any other provision, nothing in this Agreement shall be 

construed or interpreted as limiting, waiving, releasing or compromising the jurisdiction and 

authority of the FDlC in the exercise of its supervisory or regulatory authority or to diminish its 

ability to institute administrative enforcement proceedings seeking removal, prohibition or any 

other administrati ve enforcement action which may arise by operation of law, rule or regulation. 

3. Notwithstanding any other provjsion, this Agreement does not purport to waive, 

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

Department of Justice, the United States Attorney's Office for the Southern District of Florida or 

any other federal judicial district. In addition, the FDIC-R specifically reserves the right to seek 

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court ordered restitution pursuant to the relevant provisions of the Victim and Witness Protection 

Act, 18 U.S.C. § 3663, ct. seq., if appropriate. 

4. Notwithstanding any other provision, this Agreement docs not purport to waive, 

or intend to waive, any claims against third parties which could be brought by Commonwealth or 

Creative Title, including, but not limited to, any claims against Creative Title's errors and 

omissions or Hdclity insurers and bond holders, the parties to the underlying transactions, 

Solutex, Inc., Glogin Corp., Econo Appraisal, Inc., P.N.A. Appraisal, Corp. and the owners, 

officers, or employees of these companies. 

SECTION IV: Representations and Acknowledgements 

A. No Admission of Liabilitv. 

The 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 or more of the Parties 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. 

C. Binding Effect. 

Each of the undersigned persons represents and warrants that they are a Party hereto or arc 

authorized to sign this Agreement on behalf of the Party they arc signing for, and that they have 

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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 Parties and their respective 

heirs, executors, administrators, rcpresentati vcs, predecessors, successors and assigns. 

D. Choice of Law. 

This Agreement shall be interpreted, construed and enforced according to applicable federal 

law, or in its absence, the laws ofthe State ofr:lorida. 

E. Reasonable Cooperation. 

The Parties agree to cooperate in good faith to effectuate all the terms and conditions ofthis 

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 Action, and to otherwise perform the terms of this 

Agreement. 

F. Authoritv to Act. 

FDIC, Creative Title and Commonwealth represent and warrant that their respective signatories 

have full authority to execute this Agreement. 

G. 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 

its c<Junsel. 

H. 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 instrument signed by the Party or Parties to be 

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bound thereby, or by their respective authorized attorney(s) or other reprcscntative(s). 

I. Paragraph Headings. 

Paragraph headings contained in this Agreement arc inserted solely as reference aids for the 

ease and convenience of the reader; they shall not be deemed to define or limit the scope or 

substance of the provisions they introduce, nor sha ll they be use-d in construing the intent or 

effect of such provisions or any other aspect of this Agreement. 

J. Singular and Plural. 

As used in this Agreement, the singular or plural shall be deemed to include the other whenever 

the context so indicates or requires. 

K. Invalid Provisions. 

If any provision of this Agreement shall for any reason be held invalid or unenforceable, such 

invalidity or unenforceability shall not affect any other provision of this Agreement, but shall be 

construed as if such provision had never been contained herein. 

TN WITNESS WI IEREOF, the parties hereto have caust.'<i this Agreement to be executed 

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

Dated: 7- ·:::; 0 ·· '2. C> / _? 

Dated: 

fEDERAL DEPOSIT INSURANCE 

CORPORATION 

BY: 

Ta<;s D. Waterston 

TITLE: Senior Attorney 

-----~ 

CREATIVE TITLE SERVfCES, INC. 

RY: 

T ITLE: 

PRINT NAME: ------ ----

(b)@ 
bound thereby. or by their respective authorized attorney(s) or other representative(s). 

I. Paragraph Headings. 

Paragraph headings contained in this Agreement are inserted solely as reterence aids for the 

. ease and convenience of the reader: they shall not be deemed to define or limit the scope or 

substance ofthe provisions they introduce, nor shall they be used in construing the intent or 

effect of such provisions or any other aspect of this Agreement. 

J. Singular and Plural. 

As used in this Agreement, the singular or plural shall he deemed to include the other whenever 

the context so indicates or requires. 

K. [nvalid Provisions. 

If any pro vis ion of this Agreement shall for any reason be held invalid or uncntorceable. such 

invalidity or uncnforccability shall not affect any other provision of this Agreement, but shall be 

construed as if such provision had never been contained herein. 

11\ WITNESS WHEREOF, the parties hereto have caused this Agreemt:nt to be executed 

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

Dated: _______ _ 

Dated: J/3DJ J ·3 

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FEDERAL DEPOSIT INSURA:--ICE 

CORPORATION 

BY: 

Ta"s D. Waterston 

TfTLE: Senior Anorney 

BY: ............................................................................................. I (.~.)('?..) 
Dated: 3 I J~(l l} 

9 

COMMONWEAL TI-l LAND TITLE 

INSCRANCE COMPANY 

BY: J H . H H I H(p)(E:)) 

I 

TITLE: /[A~vh_ C.t.._.A.Il(..(...~ ,4·-?to/f:/..li-'( 

PRINT NAME: -f!b:R.t(..£.< 1-0· ~e./...U't~U-(