SETTLEMENT AND RELEASE AGREEMICNT 

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

November 2013, by, between, and among the following undersigned parties: The Plaintiff 

Federal Deposit Insurance Corporation, as Receiver of BankUnitcd, FSB ("FDIC-R"), and I·'.T.S. 

Real Estate Appraisals & Consulting, Inc., I foward 0. Stevens, and Frederick T. Smith 

(collectively the "Settling Defendants"). (Individually, the FDIC-R and the Settling Defendants 

may be referred to herein as "Party" and collectively as the "Parties"). 

RECITALS 

WIIEREAS: 

Prior to May 21, 2009, BankUnited, FSB C'Bank") was a depository institution organized 

and existing under the laws of the United States. 

On May 21, 2009, the Bank was closed by the Office of Thrift Supervision and pursuant 

to 12 U.S.C. ~ 1 ~2l(e), 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. 

On May 18, 2012, the FDIC-R filed a complaint tor 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 Federal Deposit Insurance Corporation as Receiverfor 

BankUnited, FSB v. Iloward 0. Stevens, Frederick T Smith, and F TS. Real Estate Appraisals 

& Consulting. Inc., Case No. 12-ev-80534-KAM (the "Action"). The Settling Defendants have 

denied liability for the FDfC-R>s claims. 

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, TIIEREFORE, in consideration of the promises, undertakings, payments, and 

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

undersigned parties agree, each with the other, as fo llows: 

SECTION 1: J>aymcnt 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 One Hundred Fifty Thousand Dollars ($150,000) ("the 

Settlement Funds'') to Welbaum Guernseis, Counsel for FDIC-R, Trust Account on or 

bcforeDecember 3, 201 3, or \\rithin twenty (20) days of execution by all parties to this 

Agreement, whichever is sooner in settl ement of the action. 

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

the event that Settlement Funds arc not received by the FDlC-R on or beforeDeccmbcr 3, 2013, 

or within twenty (20) days of execution by all parties to this Agreement, whichever is sooner, 

then, with respect to the Settling Defendants, that fail to deliver the Settlement Funds only, the 

FDIC-R in its sole discretion, shall have the right at any time prior to receipt of all Settlement 

Funds 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, and/or shall have the right to enforce 

this Agreement against the Settling Defendants, fai ling to deliver their share of the Settlement 

Funds, in which event the non-delivering Settling Defendants, agree to jurisdiction in l' ederal 

District Court in Florida and agree to pay all of the .FDIC-R's reasonable attorney'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 Settling 

Defendants, at any time prior to receipt of all Settlement Funds 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 nondelivering Settling Defendants. In no event shall the FDIC-R declare this Agreement null and 

void with respect to any Settling Defendant that has delivered its share of the Settlement Funds 

on or beforeDccembcr 3, 2013, or within twenty (20) days of execution by all parties to this 

Agreement, whichever is sooner. The failure of one Settling Defendant to deliver its share of the 

Settlement Funds shall not affect the validity of this Agreement with respect to a Settling 

Defendant that has delivered its share of the Settlement Funds. 

SECTION II: Stipulation and Dismissal 

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

Settlement Funds, the FDIC-R shall dismiss the Action. The undersigned Parties agree to enter 

stipulation(s) providing that the dismissal(s) set forth above shall he with prej udice, with each 

party to bear its own costs as these were originally incurred. 

SECTION JII: Releases 

A. Release of Individual Settling Defendants by FDIC-R. 

Effective upon receipt in full of the settlement funds and dismissal described in 

SECTION(S) I and 11 above, and except as provided in PARAGRAPI l(S) III.C., the FDIC-R, for 

itself and its 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, belonging to the FDIC-R, that arise from or relate to, the 

perfonnance, nonperformance, or manner ofpcrfotmance ofthe Settling Defendants' respective 

functions, duties and actions including without limitation the causes of adiou alkg~d in th~ 
Action. 

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

E1Tective simultaneously with the releao;e granted in PARAGRAPH lli.A. above, the 

Settling Defendants, on behalf of themselves individually, and their respective heirs, executors, 

administrators, agents, representatives, successors and assigns, hereby release and discharge 

FOIC-R, and its employees, officers, directors, representatives, successors and assigns, from any 

and all claims, demands, obl.igations, 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 of the Settling Defendants' respective functions, duties and actions that 

arise from or relate to the Action. 

C. Expr~ss Reservations From Releases By FDIC-R. 

I. Notwithstanding any other provision, by this Agreement, the FDIC-R 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-R, the Bank, other financial institutions, or any other person 

or entity, including without limitation any claims acquired by FDIC-R as successor in interest to 

the Bank or any person or entity other than Bank; 

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

c. which are not expressly released in Paragraphs lfi .A. above. 

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

c.onstrued 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 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 

seck 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: 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 proceeding arising out of the subject matter of the Action. Defendants 

specifically deny any liability or negligence with respect to the subject matter ofthe Action. The 

defendants and defendants' insurance company have decided to resolve this matter in 

consideration of the time and expense of future litigation. Accordingly, this Agreement should 

not be considered evidence of wrongful conduct. 

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 arc a party hereto or arc 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 

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

successors and assigns. 

D. Choice of Law. This Agreement shall he interpreted, construed and enforced 

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

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 

attorncy(s) or other rcprescntative(s). 

F. Reasonable Cooperation. The undersigned patties 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. 

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 his or her counsel. 

IN WITNESS WIIEREOF, the parties hereto have caused this Agreement to be executed 
by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

/I' .. - .., -/ .,. Date: _ I / - / z:__.:-o_ .J FEDERAL DEPOSIT lN.Sl"l:tAXCE CORPORATION 

(b )(6) 

As lU~CEIVER FOR BANKUNITED, FSB 

BY: I I 

TITLE: 

PRlNT :-lAME:------- --

Date: __ ···-··· ·--- .- F.T.S. RRAL ESTATE Al'PRAISALS & 

CONSULTING, INC. 

BY: 

TITLE: 

PRINT NAME: __ _ 

Date _\ti_?Z~:S (b)(6) __ 

HO 

···································································--- ·························-····-----

. Date: FREDERICK T. SMITH 
by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

Date: // ~ /2 - 2<>1 .3 FEDERAL DEPOSIT INSURANCE CORPORATION 

TITLE: -------~------

PRINT NAME:--·--------

Date: F.T.S. REAL ESTATE APPRAISALS & 

............................................................................................. 

BY: --~------------~--------~ 

TITLE: 

Date:---·~·- HOWARD 0. STEVENS 

(b)(6) ................................................................ . Date: It I p.( z.o I'VEDFJUCK j ~