SETTLEMENT AGREEMENT AND RELEASE 

This Settlement Agreement and Release ("Agreement") is made and entered into by and 

between The Federal Deposit Insurance Corporation, as receiver for IndyMac Federal Bank, 

F.S.B., ("FDIC" or "Plaintiff'), on the one hand, and Timothy W. Fenbert, an individual 

("Fenbert") and Katima, Inc. ("Katima") (collectively, the "Fenbert Defendants"), on the other 

hand. The FDIC and the Fenbert Defendants are referred to collectively as the "Parties." 

RECITALS 

A. WHEREAS, the FDIC has been substituted for IndyMac Federal Bank, F.S:B. 

("IndyMac") as plaintiff in the lawsuit currently pending against the Fenbert Defendants and 

others entitled FDIC as Receiver for IndyMac Federal Bank, F.S.B. v. Nationwide Financial 

Corporation, et. a!., in United States District Court, Northern District of Georgia, Case No. 1:07­

cv-14 72-CC ("Action"). 

B. WHEREAS, the Fenbert Defendants deny all liability for the claims alleged in the 

Action; 

C. WHEREAS, without admitting liability, the Parties desire to resolve the FDIC's 

claims against the Fenbert Defendants, including, but not limited to, all issues that were raised or 

could have been raised by FDIC in the Action, and agree as follows: 

AGREEMENT AND RELEASE 

NOW, THEREFORE, in consideration of the undertakings contained in this agreement, 

and other good, valuable and sufficient consideration, the sufficiency of which is hereby 

acknowledged, the Parties agree as follows: 

1. Preamble, Recitals and Exhibits. The foregoing preamble and recitals are true and 

correct and are integral parts ofthis agreement. 

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(b)(6) 

2. Settlement Payment by Fenbert Defendants to FDIC. In consideration of the 

FDIC's full release of the Fenbert Defendants, the Fenbert Defendants shall have paid Plaintiff 

contemporaneously with the execution of this Agreement the amount of One Thousand Dollars 

and No Cents ($1,000.00), receipt of which is hereby acknowledged. This settlement payment 

shall be made by check payable to "Nelson Mullins Riley & Scarborough LLP Trust Account." 

3. Dismissal of the Action. Within fourteen (14) days of the execution of this 

agreement, counsel for Plaintiff and the Fenbert Defendants shall execute a Stipulation of 

Dismissal of the Action with prejudice and the Plaintiff shall file the executed Stipulation of 

Dismissal with the Court. 

4. Court to Retain Jurisdiction. The Parties agree that the Court shall have 

continuing jurisdiction to enforce the provisions of this Agreement to the fullest extent permitted 

by law. 

5. Release by Plaintiff. In consideration of the payment called for in paragraph 2 

above, the FDIC hereby releases and forever discharges the Fenbert Defendants and their current 

and fanner employees, agents, sureties, bonding companies, insurers, attorneys, companies, 

successors, assigns and affiliates of and from any and all claims, and demands of every kind and 

nature, in law, equity or otherwise, known and unknown, suspected and unsuspected, disclosed 

and undisclosed, for damages actual and consequential, attorneys' fees and costs, past, present 

and future, arising out of or related to the facts, occurrences and transactions alleged in the 

action, includmg but not limited to any and all allegations related in any way to the Fenbett 

Defendants' role, responsibilities, duties, actions, or inactions as closing attorney on the sale of 

Property to Jayda Jones located at! ~tlanta, GA 30317. 

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6. No Admission of Liability. Plaintiff acknowledges that this Agreement does not 

constitute an admission by the Fenbert Defendants as to the merits of any claim that the FDIC or 

its predecessors in interest, including IndyMac, has asserted, or could have asserted, in the 

Action and that the Fenbert Defendants have denied and continue to deny that they have any 

liability to Plaintiff as alleged in the Action. Likewise, the Fenbert Defendants acknowledge that 

this Agreement does not constitute an admission by Plaintiff that any asserted claim is or was in 

any way lacking in merit, and the Fenbert Defendants also acknowledge that this Agreement 

does not constitute an admission by Plaintiff as to the merits of any claim that the Fenbert 

Defendants have asserted, or could have asserted, in the Action. Nevertheless, Plaintiff and the 

Fenbert Defendants have concluded that continued litigation would be expensive and protracted 

and that it is desirable that the Action be settled fully and finally as between Plaintiff and the 

Fenbert Defendants in the manner and upon the terms and conditions set forth in this Agreement. 

7. Representations and Warranties. The Parties represent and warrant to and agree 

with each other as follows: 

a. 	 Plaintiff and the Fenbert Defendants have received independent legal advice from 

attorneys of their choice with respect to the advisability of {;lntering into this 

Agreement and the Plaintiffs giving of the release provided for herein. 

b. 	 In connection with the execution of this Agreement and the making of the 

settlement provided for herein, no Party to this Agreement has relied upon any 

statement, representation or promise of any other Party not expressly contained 

herein. 

c. 	 This Agreement is fully integrated and contains the entire agreement ofthe Parties 

hereto. There are no agreements or understandings between the Parties hereto 

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relating to the matters and the Plaintiffs release referred to in this Agreement 

other than as set forth in this Agreement, and this Agreement supersedes and 

replaces any and all prior negotiations and agreements between the Parties hereto, 

whether written or oral. 

d. 	 Plaintiff and the Fenbert Defendants have made such investigation of the facts 

pertaining to the Plaintiffs release contained herein as they deem necessary. 

e. 	 The terms of this Agreement are contractual and are the result of negotiation 

··among the Parties. 	 Each Party has cooperated in the drafting and preparation of 

this Agreement. Hence, in any construction to be made of this Agreement, the 

role ofthe Party in drafting and preparation of the Agreement shall not be referred 

to in order to construe the Agreement against that Party, and that canon of 

contractual interpretation shall not be applied. 

f. 	 This Agreement has been carefully read by each of the Parties and the contents 

thereof are known and understood by each of the Parties. This Agreement is 

signed freely by each Party executing it. 

g. 	 The Parties have not assigned or transferred any of their claims being released 

herein. 

8. Consideration. The consideration received in connection with this Agreement is 

fair, adequate and substantial and consists only ofthe terms set forth in this Agreement. 

9. Modifications. This Agreement may not be amended, canceled, revoked or 

otherwise modified except by written agreement subscribed by all of the Parties to be charged 

with such modification. 

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10. Agreement Binding on Successors and Assigns. This Agreement shall be binding 

upon, and shall inure to the benefit of, the Parties hereto and their respective officers, directors, 

joint venturers, partners, employees, agents, servants, heirs, administrators, executors, 

successors, representatives and assigns. 

11. Applicable Law. This Agreement has been negotiated and exchanged in the State 

of Georgia. As such, this Agreement and all matters relating thereto shall be governed by the 

laws of the State of Georgia without regard to its principles of conflicts of law. In addition, in 

the event of any disputes arising between the Parties out of this Agreement, the Parties agree that 

the exclusive venue in which all disputes shall be resolved shall be by way of an action filed in 

the United States District Court for the Northern District of Georgia. 

12. Execution and Delivery Required- Effective Date. This instrument shall not be 

considered to be the Agreement (defined above) or an enforceable contract, nor shall it create 

any obligation whatsoever on the part of any or all of the Parties, nor shall it or any of its terms 

constitute an undertaking by any of the Parties unless and until the date on whiclt counterparts of 

it have been signed by and exchanged amongst all Parties (via facsimile, e-mflil or otherwise) 

(the "Effective Date"). Until the Effective Date, any Party who may already have signed and 

exchanged one or more counterpm1s of this agreement with other Parties shall have the right to 

revoke such signature. On the Effective Date, this instrument shall become the Agreement and 

shall become a binding and enforceable contract. 

13. Countemarts. This Agreement may be executed in one or more counterparts, each 

of which when executed and delivered shall be an original, and all of which when executed shall 

constitute one and the same instrument. Signatures ort this Agreement? or any counterpart of this 

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Agreement, transmitted by facsimile machine or electronic mail in .pdf format shall have the 

same force and effect as original signatures. 

14. Construction. Each ofthe masculine, feminine and neuter genders shall include 

the others. The singular shall include the plural and vice-versa. 

15. Severability. In the event any provision of this Agreement shall be held to be 

void, voidable or unenforceable, the remaining provisions shall remain in full force and effect. 

16. Wan·anty of Authority. Each Party or attorney whose signature is affixed hereto 

in a representative capacity represents and warrants that he or she is authorized to execute this 

agreement on behalf of and to bind the entity on whose behalf his or her signature is affixed and 

that he or she is acting in the scope of such agency and authority. Each Party specifically 

represents and warrants that no signatures other than those made on this Agreement are 

necessary to bind the Parties to all of the obligations imposed by the Agreement. 

17. Attorneys' Fees and Costs. Plaintiff and the Fenbert Defendants each agree to 

pay their own costs, attorneys' fees and expenses incurred in connection with the Action. 

18. Captions and Headings. The captions, paragraph numbers and paragraph 

headings appearing in this Agreement are inserted only as a matter of convenience and in no way 

defme, limit, construe or describe the scope or intent of this agreement, nor in any way affect this 

Agreement. 

19. Remedies. All Parties shall be entitled to all remedies available at law or in 

equity for any violation of this Agre~ment, including, but not limited to the remedy of specific 

performance. 

20. Further Assurances. The Parties shall execute such other docu.ments as may be 

reasonably necessary to carry out the terms and conditions ofthis Agreement. 

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21. Survival. All warranties, representations, covenants, and agreements set forth 

herein shall survive the Effective Date. 

22. Compliance Dates. In the event that any date specified in this Agreement shall be 

on a Saturday, Sunday, or a nationally-declared holiday, then the date so specified shall be 

deemed to be the next business day following such date, and compliance by such business day 

hereunder shall not be deemed a default by either ofthe Parties under this Agreement. 

23. Waiver. The waiver by one Party of the performance of any covenant or 

condition herein sh~ll not invalidate this Agreement, nor shall it be considered to be a waiver by 

such Party of any other covenant or condition or of any later instance of the previously waived 

covenant or condition. The waiver by any Parties of the time for performing any act shall not 

constitute a waiver at the time for performing any other act or an identical act required to be 

performed at a later time. 

24. Entire Agreement. This Agreement contains the complete agreement of the 

Parties concerning the subjects of this Agreement and supersedes all prior drafts of this 

Agreement and all other prior agreements, promises, acknowledgements, representations and 

warranties, if any, that may have been made between or among the Parties concerning that 

subject of this Agreement, whether in connection with the negotiation of this Agreement or 

othetwise. This agreement has been the product of negotiation. The Parties have had the 

opportunity to obtain independent advice from counsel. This Agreement may not be modified or 

changed except by a written instrument executed by all of the Parties and no rights under it may 

be waived except by a writing signed by the waiving Party. No promises, representations, 

warranties, agreements or other understandings exist between the parties with respect to the 

subject matter of this Agreement, and this Agreement supersedes and discharges any and all 

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----

prior promises, acknowledgements, representations, warranties, agreements or other 

understandings that existed or may have existed between the Parties. 

(b)(6) 

(b)(6) 

,.,­

Dated: May J5 , 2012 

(b)(6) 

Dated: May rS' 2012 

APPROVED AS TO FORM: 

(b)(6) 

Dated: May_, 2012 

(b)(6) 

Dated: May ___, 2012 

ByJ ~ru=c=H~A~RD~=Gr=L~L--------~ L

Authorized on behalf of The Federal Deposit 

Insurance Corporation, as receiver for IndyMac 

B[ _Federal Bant, F.S.B 

1 

TIMOTHY W. FENBERT 

I/IIJ f('ey, PEr-l/ I 

TIMOTHY W. FENBERT 


Authorized on behalf of Katima, Inc. 


NELSON MULLINS RILEY & SCARBOROUGH 

1~----~------------~ 

BL_==~~==~~~==--_r-- GRE<) R M. TAUBE, attorney 

for ,/Plaint ff the Federal D~posit Insurance 

C~.fon, as Receiver for ~ndyMac Federal 

Bank, F.S.B. 

HEDRICK LAW LLC 

L. BR'tk!E1IEDRICK, attorney 

for Defendants TIMOTHY W. FENBERT and 

KATIMA, INC. 

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