SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agreement (Agreement’) is made as of this - day of, 

2011. by, between, and among the following undersigned parties: the Federal Deposit Insurance 

Corporation, as receiver of Neighborhood Community Bank ("FDIC"). and Joseph Mark Brittain 

and Smith Welch & Brittain. LLP (collectively the "Settling Defendants"). The FDIC and the 

Settling Defendants may be referred to herein collectively as the "Parties". 

RECITALS 

WHEREAS: 

Prior to June 26, 2009, Neighborhood Community Bank (the "Bank") was a depository 

institution organized and existing under the laws of Georgia; 

On June 26, 2009, the Bank was closed by the Commissioner of Banking for the State of 

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

with 12 U.S.C. § 1821(d), the FDIC as receiver 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 as receiver succeeded were any and all of the 

Bank’s claims, demands, and causes of actions against its former law firms and lawyers arising 

from the performance, nonperformance and manner of performance of legal services for the 

Bank: 

On Feb. 7, 2011, the FDIC filed a complaint for money damages against the Settling 

Defendants, who had served at various times as attorneys for the Bank. Those claims for 

damages are now pending in the United States District Court for the Northern District of 

Georgia, in FEDERAL. DEPOSIT INSURANCE CORPORATION, in its Capacity as Receiver 
of Neighborhood Community, Plaintiff v. JOSEPH MARK BR1TTAIN, and SMITH, WELCH 

& BRITTAIN, LLP. Defendants; CLVII. ACTION FILE NO. I:11-CV-0372-HLM (the 

"Action’); 

In the Action, the FDIC sought damages arising out of commercial acquisition and 

development loans the Bank made to three borrowers: Orchard Road, LLC on Feb. 27, 2006; 

Rogers Road [IC on July 27, 2006; and West Panola, LLC on May 21, 2007 (the three loans are 

referred to collectively as "the Loans"). The Settling Parties represented the Bank in closing the 

Loans. The FDIC acknowledges that its claims allegedly arise Out of the performance, nonperformance and manner of performance of legal services by Brittain, both individually and as a 

partner of Smith Welch and Brittain LLP, and FDIC has not asserted claims against any other 

Smith, Welch & Brittain attorney arising out of the performance. non-performance or manner of 

performance of legal services to the Bank. 

ProAssurance Casualty Company ("ProAssurance") provided professional liability 

insurance to the Settling Defendants that afforded coverage for some or all of the claims in the 

(b)(4) 

Actionunder policy Twmbe with effective dates from Jan. 8, 2009 to Jan. 8, 2010 ("the 

Policy"). The Settling Defendants have denied liability for the claims asserted in the Action: 

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, undertakings, payments, and 

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

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

SECTION 1: Payment to FDIC 

A. As an essential covenant and condition to this Agreement, the Settling Defendants and 

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ProAssurance, collectively, agree to pay the FDIC the following sums: $250,000 USD for the 

claims for damages relating to the loan to Orchard Road, LLC; $1,085,000 USD for the claims 

relating to the loan to Rogers Road LLC; and $465,000 USD for the claims relating to the loan to 

West Panola, LLC. The collective amount of these payments and the total amount the Settling 

Defendants and ProAssurance shall pay is $1,800,000.00 USD ("the Settlement Funds"). 

Payment of the Settlement Funds shall be by wire transfer, with wiring costs to be borne by the 

Settling Defendants. It is understood and agreed that the Settling Defendants have agreed to pay 

the Settlement Funds in settlement of disputed claims, and the payment thereof, while ending the 

Action, does not constitute payment of the entire loss suffered by the FDIC in any one of the 

Loans, or in the Loans collectively. 

B. Upon the execution of an original, or originals in counterpart, of this Agreement by each 

of the undersigned Parties to this Agreement and electronic delivery of same to Settling 

Defendants’ counsel, but no later than fifteen (IS) days after said delivery of the executed 

Agreement to Settling Defendants’ counsel ("Payment Due Date"), the Settlement Funds shall 

be delivered to FDIC by direct wire transfer into an account designated by FDIC. In the event 

that the Settlement Funds are not delivered to the FDIC by the Payment Due Date, interest shall 

accrue daily on all unpaid amounts at the rate of one-year U.S. Treasury notes as reported in the 

Wall Street Journal at the end of the last quarter immediately preceding the date of this 

Agreement (Sept. 30, 2011) from the Payment Due Date until the date of payment. 

C. In addition, and without waiving any other rights that the FDIC may have, in the event 

that all Settlement Funds are not received by the FDIC on or before the Payment Due Date, then 

the FDIC, in its sole discretion, shall have the right 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. 

Any decision by the FDIC 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 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 declares this 

Agreement null and void, the FDIC will return all amounts paid to it under this Agreement. 

SECTION II: Stipulation and Dismissal 

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

Settlement Funds, plus any accrued interest, the FDIC shall dismiss the Action. The undersigned 

parties agree to enter stipulation(s) providing that the dismissal(s) set forth above shall be with 

prejudice, with each party to bear its own costs as these were originally incurred. 

SECTION III: Releases 

A. Release of Settling Defendants by FDIC. 

Effective upon receipt in full of the Settlement Funds, plus any accrued interest, and 

except as provided in PARAGRAPH lll.C., the FDIC hereby releases and discharges each of the 

Settling Defendants and their respective heirs, executors, administrators, representatives, assigns, 

attorneys, members, shareholders, or partners (including individuals, limited liability 

corporations or professional corporations), employees, and their insurers (including but not 

limited to ProAssurance), from any and all claims, damages, actions, and causes of action, in law 

or in equity, belonging to the FDIC and arising from the operations of the Bank, including 

without limitation the causes of action alleged in the Action. 

B. Release of FDIC by the Settling Defendants and ProAssurance. 

Effective simultaneously with the release granted in PARAGRAPH lhl.A. above, the 

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Settling Defendants and ProAssurance, on behalf of themselves individually, and their respective 

heirs, executors, administrators, agents, representatives, successors and assigns, hereby release 

and discharge FDIC, and its employees, officers, directors, representatives, attorneys, and 

assigns, from any and all claims, damages, actions, and causes of action, in law or in equity, 

belonging to the Settling Defendants and arising from the operations of the Bank. 

C. Express Reservations From Releases By FDIC. 

I. Notwithstanding any other provision, by this Agreement the FDIC does not release, and 

expressly preserves fully and to the same extent as if the 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 FDIC, the Bank, other financial institutions, or any other person or entity, 

including without limitation any claims acquired by FDIC as successor in interest to the Bank or 

any person or entity other than Bank; 

b. against any person or entity not expressly named and released in this Agreement; and 

c. which are not expressly released in PARAGRAPHS llI.A and IlIC. 

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 

FDIC 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 

administrative enforcement action which may arise by operation of law, rule or regulation. 

3. Notwithstanding any other provision, 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 

5 
of Justice, the United States Attorneys Office for the Northern District of Georgia, or any other 

federal judicial district, in addition, the FDIC specifically reserves the right to seek court 

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

18 U.S.C. § 3663, et. seq.. if appropriate. 

SECTION IV: Waiver of Dividends 

To the extent, if any, that Settling Defendants are or were shareholders of the Bank or 

Newnan Coweta Bancshares, Inc., and by virtue thereof are or may have been entitled to a 

dividend, payment, or other distribution upon resolution of the receivership of the Bank, or to 

proceeds from any litigation that has been or could be brought 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 FDIC or the United States Government in connection with the Bank, its conservatorship or 

receivership, they hereby knowingly assign to the FDIC any and all rights, titles and interest in 

and to any and all such dividends, payments or other pro rata distributions. 

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 or defense. 

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 

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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 

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. FDIC 

represents and warrants that, as of the effective date of the Agreement, it is the owner of the 

rights, claims or causes of action that are the subject of the releases in paragraph lilA. of this 

Agreement, and that said rights, claims and causes of action have not been conveyed to any other 

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

undersigned parties and their respective heirs, executors, administrators, representatives, 

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 of the State of Georgia. 

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 instrument signed by the party or parties to be 

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

F. Insurance Coveraç 

As of the date of this Agreement, the best calculable estimate by ProAssurance of the 

limits remaining as of the time of mediation is $2405 million. ProAssurance has provided 

documentation to the FDIC to demonstrate the accuracy of this figure and ProAssurance 

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represents in good faith that the actual remaining proceeds of the policy as of the mediation date 

were not materially different from $2405 million. Neither SWB nor Brittain makes any 

representation or warranty in regard to ProAssurance’s disclosure regarding insurance coverage. 

ProAssurance agrees to indemnify and hold harmless SWB or Brittain for any loss, cost or 

expense arising out of any alleged misrepresentation by ProAssurance of the amount of 

insurance coverage herein. 

G. Reasonable Cooperation. 

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 Action and to otherwise perform the terms 

of this Agreement. 

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 or her counsel. 

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

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

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR 

(b)(6) NEIGHBORHOOD COMMUNITY BANK 

Date:________ 

TITLE: 

PRINT NAME: \\ Gce 

8 
JOSEPH MARK BRITIAIN 

Date: BY: 

PRINT NAME: 

SNUTR WELCH & BRITTAIN. LLP 

Date: BY: 

TITLE: 

PRINT NAME: 

PROASSURA NCE 

Date: 

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PRINTNAME: j 0 L (,/It 4r;, 

(b)(6) 

9 
JOSEPH MARK BRITTAIN 

Date; BY: 

PRINT NAME: 

SMITH WELCH & BRI 

(b)(6) 

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TITLE: 

PRINT WE: 

PROASSURANCE CASUALTY COMPANY 

Date; BY: 

TITLE: 

PRINT NAME: 
JOSEPH MARK BRITTAIN 

(b)(6) 

Date: II//, BY: - - -- 

PRINT NAME: L /44V4. 4 A 

SMITH WELCH & BRITTAIN, LLP 

Date; BY: 

TITLE: 

PRINT NAME: 

PROASSURANCE CASUALTY COMPANY 

Date: BY: 

TITLE: 

PRINT NAME: