SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agrccm~nt ("'Agreement'') is made as of this 16th day of 

December. 2015, by, between, and among the tollowing undersigned parties (collectively . 

.. Parties:· and each a ''Pa11y"): the Federal Deposit Insurance Corporation (''FDIC .. ) as Receiver 

for United Western B;:mk ("United Western) on the one hand, and UBS Securities LLC ("CBS''), 

on the other. 

WHEREAS: 

United Western was a federally chartered savings bank organized and existing under the 

laws of the Lnited States. United Western was closed by the Office of Thrift Supervision on 

January 21, 20 I Land the rDIC was appointed Receiver pursuant to 12 U.S.C. ~ 1821(c). 

In accordance with 12 U.S.C. § 1821(d), the FDIC as Receiver for United Western 

(''f'DIC-R'') succeeded to all rights, titles. powers and privileges of Cnited Western, including 

those with respect to its assets. 

Among the assets of United Western to \Vhich the FDIC-R succeeded were any and all of 

Lnited Western's claims, demands. and causes of action arising from any action or inaction 

related to any loss incurred by United Western. 

United Western commenced a residential mortgage-backed securities (''RMBS") lawsuit 

(''RMBS Action") against UBS and other defendants on April23. 2010. in the Second Judicial 

District Court in Colorado alleging violations of Sections I I and 12(a)(2) ofthe Securities Act of 

1933 and Section 1 I-51-50 I (I )(b) of the Colorado Securities Act in connection with tnitcd 

Western's purchase of certain residential mortgage-backed securities ("RMBS'') ccrtiHcates, 

including, with respect to UBS, the 1-A-2 RMBS Certificate of the CWALT 2005-43 offering 

(the ''RMBS Certificate"). The RMBS Action was subsequently transferred to federal court, and 

is now pending in the United States District Court for the District of Colorado, and bears the case 

number I 1-cv-02268-W JM-KLM. On AugtJst 8, 20 II. the Colorado district court granted the 

FDIC-R 's molion to substilllte itself for the Bank as Plaintiff in the RMBS Action. l.JBS is the 

only remaining defendant in the RMBS Action. 

Ul3S denies all liability with respect to all claims that the FDIC-R has brought as 

Receiver for United Western. 

The Parties deem it in their best interests to enter into this Agreement to avoid the 

uncertainty, trouble, and expense of further litigation of the RMBS Action. 

NOW, THEREFORE, in consideration of the promises, undertakings, payments, and 

releases stated herein, the sutlicicncy of which consideration is hereby acknowledged, the Pa11ies 

agree, each with the other. as fi.1llows: 

I. Payment As an essential covenant and condition to this Agreement, and as 

consideration 1(1r the releases and dismissals contained herein, U BS shall pay or cause to 

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be paid THREE MILLION ONE HUNDRED TWENTY -FIVE THOUSAND DOLLARS 

($3, 125,000.00) ("Settlement Funds'') to the FDIC-R. In the event that the Settlement 

Fu nds arc not delivered to the FDIC-R by December 30. 2015. interest shall accrue on all 

unpaid amounts at the rate or 8 percent per annum from the date the payment was due 

under the terms of the Agreement. until the date the FDIC-R receives payment. Without 

waiving any other rights that the FDIC-R may have. in the event that all Settlement Funds 

are not received by the fDIC-R in accordance with the terms of the Agreement, or all 

accrued interest is not received by the FDIC-R within a reasonable time. then the FOICR, in its sole discretion, shall have the right to declare this Agreement nu ll and void. shall 

have the right to extend this Agreement for any period oftime until it receives all 

Settlement Funds (including all accrued interest), and/or shall have the right to enforce 

this Agreement, in which event lJBS agrees to jurisdiction in the United States District 

Court for the District of Columbia. The prevailing party in any such litigation agrees to 

pay the other's reasonable attorney's tees. Any decision by the FDIC-R to extend the 

terms ofthis Agreement or to accept a portion of the Settlement f unds 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-R declares this 

Agreement null and void. the FDIC-R will return to UBS any and all amounts paid to it 

under this Agreement. 

2. Dismissal. Upon receipt of the Settlement Funds by the FDIC-R, the FDIC-R shall move 

to dismiss the RMHS Action with prejudice. 

3. FOIC-R Releases. Upon execution of the Agreement and receipt of the Settlement 

Funds by the FDIC-R, the FDIC-R hereby releases and discharges UBS and all of its 

current or former direct or indirect parents. su bsidiaries. and affiliates, together \Vith each 

of their respecti vc successors and each of their respective current or former shareholders, 

onicers, directors. employees, attorneys and other agents, but soldy in their capacities as 

such, from any and all claims, demands, actions. causes or action, and liabilities of any 

type, whether known or unknown. whether asserted or unasserted, whether disclosed or 

undisclosed, whether accrued or unaccrued, whether lixed or contingent, whether direct 

or indirect, and whether at law or in equity, bas(!d upon or relating to United Western's 

purchase, ownership, or sale of the RMHS Certificate, including. but not limited to the 

facts, transaction. representations, or omissions alleged in the petition and amended 

pt:titions tiled in the R\1BS Action. 

4. UBS Releases. Upon dismissal ofthc RMOS Action with prejudice, URS hereby 

releases and discharges the FDIC-R and tht FDIC, and their current or former employees, 

oflicers. directors. representatives, successors. and assigns, from any and all claims. 

demands, actions, causes of action. and liabilities of any type, whether known or 

unknown, whether asserted or unasscrted, whether disclosed or undisclosed. whether 

accrued or unaccrued. whether fixed or contingent, whether direct or indirect. and 

whether at law or in equity, based upon or relating to L'nitcd Weslern 's purchase, 

ownership. or sale of theRMOS Certificate, including but not limited to the facts. 

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transactions. representations, or omissions alleged in the petition and amt!ndcd petitions 

tiled in the RMBS Action. 

5. Release of Unknown Claims. Each of the rDIC-R and UBS acknowledges that it has 

been advised by its attorneys concerning, and is familiar with, Calil'ornia Civil Cod~ 

Section 1542 and expressly waives any and all provisions. rights, and benetlts conferred 

by California Civil Code Section 1542 or any law of any state or territory ofthc Un ited 

States. or princirlc of common law, which is similar, comparable, or equivalent to the 

provisions of the California Civil Code Section 1542, including that provision itself, 

which reads as follows: 

"/\GENERAL RELEASE DOES NOT EXTEND TO CLA IMS WlliCl-1 THE 

CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR IIER FAVOR 

A l THE TIME OF EXECUTING TH E RELEASE. WHICII, Ir KNO\VN 13Y HI \II OR 

HER MUST I-lAVE MATERIALLY AFFECl'ED HIS OR HER SETTLEMENT WITII 

THE DEBTOR:· 

The Parties acknowledge that inclusion ofthe provisions of this Paragraph 5 of this 

Agreement was a material and separately bargained-for element ofrhis Agreement. The 

Parties further acknowledge that the releases granted herein are specific releases. not 

general releases. 

6. Authority. The FDlC-R represents that under the J7cderal Deposit Insurance Act, the 

FDIC is authorized to be appointed as receiver for failed depository institutions and that it 

succeeded to all ri ghts, titles, powers, and privileges of United Western, and any 

shareholder, member. accountholder, depositor, officer. and director of Un ited Western 

with respect to United Western and the assets of United Western, including, but not 

limited to. Gnitcd Western's claims against UBS. The FDIC-R further represents that it 

is empowered to sue and complain in any court of law to pursue, intf!r alia. the claims 

against UAS asserted in the RM13S Action. Each Party represents that it has full 

authority lO enter into this Agreement and that it has the full power and authority to bind 

such Party to each and every provision of the Agreement. 

7. Certain FDIC Claims ~ot Released. Notwithstanding the re leases in Paragraph 3 

above, the FDIC. in any capacity. sha ll not release. and expressly preserves fully and to 

the same extent as if the Agreement had not been executed (provided, that this provision 

shall not be construed as an acknowledgment that any such claims or causes of action 

c.xist or are valid): 

a. any claims or causes of action against UllS 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 the fDIC to any financial 

institutions in receivership. to other financial institutions, or to any other person or 

entity (including without limitation any claims acquired by the FDIC as successor 

in interest to any tinancial institutions in receivership or any person or entity. 

excluding f(.) r avoidance of doubt any claims or causes of action expressly 

,., - :> -
released in the Agreement); 

b. any claims or causes of action by the FDIC in any capacity other than as Receiver 

for United Western: and 

c. any claims or causes of action against any person or entity. inclutling. but not 

limited to, CBS. not expressly released in this Agreement. 

8. Enforcement. Except as othenvise expressly slated herein, nothing in the Agreement 

shall be construed or interpreted as limiting, \.Vaiv ing, 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 oflaw, rule. or regulation. 

9. Actions of the United Sta tes. Notwithstanding any other provision of this Agreement, 

this Agreement shall not be construed or interpreted as waiving. or intending to waive, 

any claims that could be brought by the United States or any department agency, or 

instrumentality thereof (other than the FDIC-R). including. but not limited to, through the 

United States Department of Justice or any United States Attorney's Oflice. 

10. No Confidentiality. LRS and the FDIC-R acknowledg!.! and agree that this Agreement 

shall not be confidential and will be disclosed pursuant to the FDJC's applicable policies, 

procedures, and other legal requ irements. 

11. No Admission of Liability. The Parties each acknowledge and agree that the matters set 

forth in this Agreement constitute the settlement and compromise of disputed claims and 

that the Agreement is not an admission or evidence of liability or the insufficiency or any 

defense by any ofthem regarding any claim, all of which are expressly disputed. The 

Parties further acknowledge that they may not base any claim of waiver or estoppel in 

any other matter upon the execution of the Agreement or payment or consideration 

described herein. 

12. Representations and Acknowledgements. 

a. Execution in Countcmarts. This Agreement may be executed in counterparts by 

one or more of the Parties and all such counterparts when so executed shall 

together constitute the final Agreement, as ironc 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 the Agreement. 

b. Bind ing Effect. Each of the Parties represents and warrants that it is a Party 

hereto or is authorized to sign this Agreement on behalfofthe resrective Party, 

and that it has the full power and authority to bind such Party to each and every 

provision of the Agreement. The Agreement shall be binding upon and inure to 

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(b)(6) _ __ _ 

the benefit of the Parties and their rcsrcct ive heirs. executors. adrn in istrators, 

representati ves, successors and assigns. 

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

according to applicable federal law. or in its absence, the la\vs of the state or \kw 

York, \vithout regard to confl icts of law principles. 

d. Jurisdiction. All Parties hereto submit to the personal jurisdiction of the United 

States District Court for the District of Columbia for purposes of implementing 

and enforcing the settlement embodied in this Agreement. 

<.!. Entire Agreement and Amendments. Except as otherwise provided herein, this 

Agreement constitutes the entire agreement and understanding between and 

among the Parties concerning the matters set t(ll1h herein and replaces all prior 

negotiations and terms proposed or discussed, whether in writing or orally, about 

such matters. The Agreement may not be amended or modified except by another 

written instrument signed by the Parties. 

f. Reasonable Cooperation. The Parties agree to cooperate in good faith to 

cftceluate all the terms and conditions of th i~ Agreement, including doing or 

causi ng their agents and attorneys to do whatever is reasonably necessary to 

effectuate the signing, delivery. and execution of any documents necessary to 

perform the terms ofthis 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 the 

Agreement has been explained to that Party by his or her counsel. 

h. Notices. Notices required by this Agreement shall be communicated by email and 

any form of overnight mail or in person to: 

Federal Deposit Insurance Corporation 

Attn: Assistant General C ouns~l -

Protessional Liability & Financial Crimes Section 

3501 Fairfax Drive 

Arlington, VA 22226 

and 

David J. (kai.· '--t;::::.;;:;:===----_J 

Grais & Ellsworth LLP 

121 I A venue of the Americas, 32nd Floor 

!\ew York, New York 10036 

and 

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(b)(6) 

(b)(6) 

.................. All.<lr~:w.R.Sho.crnaker .. .(.._l_ ... ··-··· __________ b 

Shoemaker Ghiselli + Schwartz LLC 

1811 Pearl Street 

Boulder, Colorado 80302 

Attorneys for FDIC-R 

and 

UBS Securities LLC 

Attn: Hilary Williams -- Executive Director and Counsel 

677 Washington Blvd. 

Stamford, CT 06901 

and 

Dean J. Kitchens 

Gibson, Dunn and Crutcher LLP 

333 South Grand Avenue 

Los Angeles, CA 90071 

Attorneys for UIJS Securities LLC 

IN WITNESS WHEREOF, the Parties hereto have caused this A!,rreement to be executed by 

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

······························································ ;;.h~-z·····-;7'······· 

Date: I/'.) 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR UNITED WESTERN BANK 

RY: ~----------------------~---

PRINT NAME: ~CJ-+-II--1----L-+-£L__L..!!__;~~L_f__~~ 

TlTT ,£: Counsel 

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(b)(6) 

PRINT NAME: William Chandler 

TITLE: Managing Director 

Date: __ _ BY: ______________________________ ___ 

PRINT NAME: Karen Yen 

TITLE: Executive Director and Counsel 

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UBS SECURITIES LLC 

Date: __ _ BY: ________________________________ ___ 

PRINT NAYIE: William Chandler 

(b)(6) ............................... o~te: rJ:[rr;t;;:or5 ........................... .. 

TITLE: Managing Director ~ :iA:: ~envenJ.__ _____ _ 

TITLE: Executive Director and Counsel 

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