Page 14

[N WITNESS WHEREOF, the Parties hereto have executed this agreement on the dates
set forth below.
Dated: 7 [am | 2011 FEDERAL DEPOSIT INSURANCE

CORPORATION, AS RECEIVER FOR INDYMAC
BANK, F.S.B.

(b)(6) By:

Dated: 2011 ECONO APPRAISAL, INC.

By:

Its:

A85S900 17


Page 5

parents, affiliates, attorneys, insurers, representatives and assigns, conservators and/or receivers,
and all persons or entities acting by, through, under, for, on behalf of, or in concert with them,
past or present (the Econo Appraisal Releasors), fully and forever release, acquit and discharge
Plaintiff and its current and former officers, directors, joint venturers, partners, employees,
agents, servants, administrators, executors, predecessors, successors, subsidiaries, parents,
affiliates, attorneys, insurers, representatives and assigns, conservators, and all persons or entities
acting by, through, under, for, on behalf of, or in concert with them, past or present, jointly and
severally, from and against any and all rights, claims, debts, demands, acts, agreements,
abilities, obligations, damages, costs, fees (including, without limitation, those of attorneys),
expenses, actions and/or causes of action of every nature, character and description, or causes of
Hability, nghts and offset rights, whether at law or in equity, whether known or unknown,
suspected or unsuspected, asserted or unasserted, meluding without limitation injunctive or
equitable relief, any award of actual, consequential, incidental, liquidated, or other types or
categories of damages, any award of punitive or exemplary damages, any claims for attorneys’
fees, casts or expenses of litigation and any other type of relief which the Econo Appraisal
Releasors may have or might have against Plaintiff pertaining to the Loan, the Property, the
Complain, and any and all facts, occurrences and transactions alleged in the Action, provided,
however, that this release is not a general release but is expressly and specifically limited to the
Loan, the Property, the Complaint, and any and all facts, occurrences and transactions alleged in
the Action, and is not intended nor shall it be deemed to release any other claims, demands,
causes of actions, debts, obligations, losses damages, liabilities, costs, expenses, attorneys’ fees,
penalties, compensation, right to indemnity and/or demands as to any other loans or matters that

Econo Appraisal may have or might have against Plaintiff, including without limitation any other

HAGSS9OG:T}


Page 18
CONFIDENTIAL

CERTIFICATE OF SERVICE

Thereby certify that a true and correct copy of the foregoing was served by transmission
of Notices of Electronic Filing generated by CM/ECF on September ___, 2011, on all counsel or
parties of record an the Service List below.

is/ Justin E. Hekkanen
Attorney

SERVICE LIST

Daniel J. Koleos

Koleos Rosenberg PA.

AmTrast Bank Building

8211 W. Broward Biva., Suite PH4

Fort Lauderdale, FL. 33324

(954) 474-9929

(954) 474-9959 (Fax)

Counsel for Econo Appraisal, inc., Roberta
Rodriguez and Lance Moyse

sf Justin F. Hekkanen
Attomey

{JABS5900;4) Page 17 of 17


Page 10

successors, representatives and assigns.

15. Applicable Law. ‘This agreement has been negotiated and exchanged in the State
of Florida. As such, this agreement and al! matters relating thereto shall be governed by the laws
of the State of Florida 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 Southern District of Florida (but only if such court has
subject matter jurisdiction over the disputes).

16. 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 which counterparts of
it have been signed by and exchanged amongst all Parties (via facsimile, e-mail or otherwise)
(the Effective Date). Until the Effective Date, any Party who may already have signed and
exchanged one or more counterparts 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. Transmittal of a counterpart signature page
signed by a Party (or by his or its attorney-in-fact pursuant to a duly executed power of attorney
authorizing the same} via facsimile or ¢-mail shall be one way in which this agreement may be
transmitted and formed, but in that event, the Party so transmitting it shall also forward the
original, signed counterpart to the other via overnight delivery. All counterparts shall be

construed together as the agreement.

HA6SS900; 1)


Page 7

admission by Plaintiff that any asserted claim is or was in any way lacking in merit, and Econo
Appraisal also acknowledges that this agreement does not constitute an admission by Plaintiff as
to the merits of any claim that Econo Appraisal has asserted, or could have asserted, in the
Action. Nevertheless, Plaintiff and Econo Appraisal 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 Econo Appraisal in the manner and upon the terms and
conditions set forth in this agreement,

9. Waiver under Section 1542 of California Civil Code. Subject to the limitations

contained therein and in paragraph 7, above, the releases as set forth in paragraphs 5 and 6 are
intended by the Parties to be read and interpreted as broadly as possible to affect the releases set
forth therein regardless of whether the claims are presently known or unknown to the Parties.
‘This agreement is made by the Plaintiff and Econo Appraisal freely and with independent legal
advice and counsel, and Plaintiff and Econo Appraisal are fully aware of the provisions of
Section 1542 of the Civil Code of the State of California, which reads as follows:

"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH

THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS

OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,

WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
However, this is a limited release and not a general release and is only intended to release those
claims specifically identified in paragraphs 5 and 6 of the agreement and is specifically limited
by the limitations contained im those paragraphs and in paragraph 7 of this agreement.

Nevertheless, to the extent Civil Code section 1542 (as well as any other or successor law of

similar effect) applies to the agreement, Plaintiff and Econo Appraisal waive any rights, benefits

{0A899900,1 7


(b)(4)
(b)(4)

Page 6

claims, demands or actions regarding any other matter.

7. Express Reservations from Releases by Plaintiff. Notwithstanding any other

provision contained herein, by this agreement, Plaintiff does not release, and expressly preserves
fully and to the same extent as if the agreement had not been executed (a) any claims or causes
of action that do not arise from or relate to (i) the Loan, {4) the Property, or (iii) any and all facts,
occurrences and transactions alleged in the Action, (b) any action taken by or any claims that
may be asserted by any other federal agency as to any matters, including without limitation any
matters that may be based apon or arise out of the acts alleged in the Action, and (c) claims

arising from the closing of the Loan against any other transaction participant concerning the

Loan, including but net limited to,

Additionally, this agreement does net waive or

release any claim Plaintiff may have relating to or arising from any loan other than the Loan at
issue in the Action. In addition, this agreement does not purport to waive, nor is it intended 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 State of California, Central District, or any
other federal judicial district, inchiding any nghts, if appropriate, to court ordered restitution
pursuant to the relevant provisions of the Victim and Witness Protection Act, 18 U.S.C. § 3663,
ef seq.

8. No Admission of Liability. Plaintiff acknowledges that this agreement does not
constitute an admission by Econo Appraisal as to the merits of any claim that Plaintiff or its
predecessors in interest, inchiding IndyMac Bank, FSB, has asserted, or could have asserted, in

the Action. Likewise, Econo Appraisal acknowledges that this agreement does not constitute an

{JABSS900: 1}


Page 9

prior negotiations and agreements between the Parties hereto, whether written or
oral.

¢, Plaintiff and Econo Appraisal have made such investigation of the facts pertaining
to the releases contained herein as they deem necessary.

f 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
of the Party in drafting and preparation of the agreement shall not be referred to in
order to construe the agreement against that Party, and the canon of contractual
interpretation shall not be applied.

g. 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.

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

herein.

‘The consideration received in connection with this agreement is

fair, adequate and substantial and consists only of the terms set forth in this agreement.

13, Modifications. This agreement may not be amended, canceled, revoked or
otherwise madified except by written agreement subscribed by all of the Parties to be charged
with such modification.

i4. Agreement Binding on Successors and Assigns. This agreement shall be binding
upon, and shall inure to the besefit of, the Parties hereto and their respective officers, directors,

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

HA6SS900.1


(b)(6)

Page 1

AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE

THIS AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE (agreement) is
made and entered into by and between FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for IndyMac Bank, FSB (IndyMac) (collectively, Plaintiff) and ECONO
APPRAISAL INC. (Econo Appraisal). Plaintiff and Econo Appraisal may be referred to herein

individually as “Party” and collectively as the "Parties.”

RECITALS

This agreement is made with reference to the following facts:

A On or about April 14, 2010, Plaintiff filed a complaint for money damages
alleging causes of action against, amongst others, Econo Appraisal, Roberto Rodriguez
(Redriguez) and Lance Moyse (Moyse) for negligent misrepresentation, negligence and breach
of fiduciary duty, and against Econo Appraisal for breach of third-party beneficiary contract (the
Complaint), in connection with a first mortgage loan funded by IndyMac in the principal

amount of $660,000 and a second mortgage loan funded by IndyMac in the principal amount of

$165,000,-made-to-a-berrawer-named collectively, the Lean) and which was

secured by a residential condominium located at Unit [--Jin-the."Mark.on Brickell® at L155
Brickell Bay Drive, Miami, FL 33131] (the Property). The pending action which the Complaint
jnitiated is entitled Federal Deposit Insurance Corporation as Receiver for IndyMac Bank, FSB
v. Miguel F. Mirabal, et al., is pending in the United States District Court for the Southern
District of Florida, Miami Division (the Court), Case No. 10-21197-CIV- HUCK/BANDSTRA.
(the Action).

B. Econo Appraisal and Rodriguez answered and asserted affirmative defenses to the

{IAGSSODOF}

(b)(6)


Page 12

force and effect as original signatures.

22. 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
define, limit, construe or describe the scope or intent of this agreement, nor in any way affect this
agreement.

23. Further Assurances. The Parties shall execute such other documents as may be
reasonably necessary to carry out the terms and conditions of this agreement.

24. Survival. All warranties, representations, covenants, and agreements set forth
herein shall survive the Effective Date.

25. 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 of the Parties under this agreement.

26. Waiver. The waiver by one Party of the performance of any covenant or
condition herein shall 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.

27, Jury Trial Waiver. The Parties hereby waive any and all rights that they may
otherwise have to a trial by jury in any action, proceeding, claim, counterclaim or third party
complaint, whether in contract or tort, at law or in equity, arising out of or in any way related to

this agreement.

HAGS5900:1}

12


Page 11

17. Construction. Each of the masculine, ferninine and neuter genders shall include
the others. The singular shall include the plural and vice-versa. This agreement is the product of
negotiation between parties and as such, shall not be construed as though all or any part of it was
drafted by any particular Party.

18. 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.

19. Warranty 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.

20. Attorneys’ Fees and Costs. Plaintiff and Econo Appraisal each agree to pay their
own costs, attorneys’ fees and expenses incurred in connection with the Action, In the event that
any action, suit or other proceeding 1s instituted to remedy, prevent or obtain relief from a breach
of this agreement, arising out of a breach of this agreement, involving claims within the scope of
the release contained in this agreement or pertaining to a declaration of rights under this
agreement, the prevailing Party shall recover its reasonable attomeys' fees incurred in each and
every such action, suit or other proceeding, mcluding any and all appeals or petitions therefrom.

21. Counterparts. 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 on this agreement, or any counterpart of this

agreement, transmitied by facsimile machine or electronic mail in pdf format shall have the same


Page 8

and protections they may have under section Civil Code 1542 to the extent necessary to

effectuate the Releases set forth herein in paragraphs 5 through 7, inclusive, herein.

10.

Non-Dispatagement. Econo Appraisal will not, directly or indirectly, make any

disparaging statements (4.¢., statements harmful to business interests, reputation or good will) in

any form (orally, in writing, etc.) against Plaintiff or any of Plaimtiff’s affiliates relating to the

Loan, Property or Action.

il.

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

with each other as follows:

£14655900;1)

a. Econo Appraisal represents, warrants and admits for all purposes that Rodriguez

and Moyse at all times acted as Econo Appraisal's agents and within the scope of
their employment at Econo Appraisal when conducting any appraisal arising from
or related to the Action.

The Plaintiff and Econo Appraisal have received independent legal advice from
attorneys of their choice with respect to the advisability of entering into this
agreenient and of giving the releases provided herein.

In connection with the execution of this agreement and the making of the
settlement provided for herein, no Party te this agreement has relied upon any
statement, representation or promise of any other Party not expressly contained
herein.

This agreement is fully integrated and contains the entire agreement of the Parties
hereto. There are no agreements or understandings between the Parties hereto
relating to the matters and releases referred to in this agreement other than as set

forth in this agreement, and this agreement supersedes and replaces any and all


Page 4

present, fully and forever releases, acquits and discharges Econo Appraisal, past or present,
jointly and severally, from and against any and all rights, claims, debts, demands, acts,
agreements, liabilities, obligations, damages, costs, fees (including, without limitation, those of
attorneys), expenses, actions and/or causes of action of every nature, character and description,
or causes of Hability, rights and offset rights, whether at law or in equity, whether known or
unknown, suspected or unsuspected, asserted or unasserted, imeluding without limitation
injunctive or equitable relief, any award of actual, consequential, incidental, liquidated, or other
types or categories of damages, any award of punitive or exemplary damages, any claims for
attorneys’ fees, costs or expenses of lidgation and any other type of relief which Plaintiff has,
may have or might have against Econo Appraisal pertaining to the Loan, the Property, the
Complaint, and any and all facts, occurrences and transactions alleged in the Action, provided,
however, that this release is not a general release but is expressly and specifically limited fo the
Loan, the Property, the Complaint, and any and all facts, occurrences and transachons alleged in
the Action, and is not intended nor shall it be deemed to release any other claims, demands,
causes of actions, debts, obligations, losses damages, liabilides, costs, expenses, atiorneys’ fees,
penalties, compensation, right to indemnity and/or demands as to any other loans o7 matters that
Plaintiff may have or might have against Econo Appraisal, including without limitation any other
claims, demands or actions regarding any other matters.

6. Release by Econo Appraisal. Subject to full performance of the obligations and
representations and warranties set forth in this agreement, and effective simultancously with the
release granted in paragraph 5, above, Econo Appraisal, on behalf of itself and for each and
every one of its respective current and former officers, directors, joint venturers, partners,

employees, agents, servants, administrators, executors, predecessors, successors, subsidiaries,

144635900;1)


Page 15

TN WITNESS WHEREOF, dhe Parties hereto hase exes nent on the dates

at forth below

Dated 2 alt FEDERAL DEPOSIT INSURANCE

CORPORATION, AS RECEIVER FOR INDYMAC
BANK. FSB.

By
fis SAUL NOME RAMEE POCCAOCCE te be hn nme nna
ae ECONO APPRAISAL, INC
(b)(6)
By
Its



(b)(6)

Page 17

Roberta Rodriguez and Lance Moyse stipulate that this Court may enter an order without
further notice or hearing to dismiss all claims, defenses, affirmative defenses, counterclaims and
cross-claims arising from or related to this action with prejudice, including but not limited to any

and all claims for attorneys’ fees and/or costs.

(b)(6)

Date: »2011
William P. Heller Daniel J. Koleos
Florida Bar No. 987263 Florida Bar No. 516325
l ] |
Justin E. Hekkanen KOLEOS ROSENBERG P.A.
Florida Bar No. 33712 AmTrust Bank Building
[ : ] 8211 W. Broward Blvd., Suite PH4
AKERMAN SENTERFITT Fort Lauderdale, FL. 33324
Las Olas Centre UL (954) 474-0029
350 East Las Olas Blvd., Suite 1600 (954) 474-9959 (Fax)
Fort Lauderdale, FL 33301 Counsel for Econo Appraisal, Inc., Reberto
Telephone: (954) 759-8945 Rodriguez and Lance Moyse

Fax: (954) 463-2224

Attorneys for Federal Deposit Insurance
Corporation, as receiver for IndyMac Bank,
FSB

{JA655900;1)
16


Page 3

has been made by Econo Appraisal's insurance company and that Econo
Appraisal is a covered party under the subject policy for any acts, errors or
omissions committed by Econo Appraisal, Rodriguez and/or Moyse arising from
or related to the Action.

3. Dismissal of the Action. Together with the execution of this agreement, counsel
for Plaintiff shal! execute a Sipulation of Dismissal of the Action with prejudice in the form
attached hereto as EXHipit A. Within five (5) business days after Plaintiff's receipt and clearing
of the Settlement Payment from Econo Appraisal, so that good and clear funds in the amount
agreed to herein are actually received by Plaintiff, counsel for Plaintiff shall file the executed
Stipulation of Dismissal with the Court. If Plaintiff does not receive good and clear funds from
Econo Appraisal, Plaintiff has no obligation to dismiss Econo Appraisal, Rodriguez and/or
Moyse from the Action.

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, Subject to full performance of the obligations and
representations and warranties set forth in this agreement, and effective upon the receipt and
clearing of the Settlement Payment, so that good and clear funds in the amount agreed to herein
are actually received by Plaintiff, and except as provided in paragraph 7, below, Plaintiff, for
itself and for cach and every one of its current and former officers, directors, joint venturers,
partners, employees, agents, servants, administrators, executors, predecessors, successors,
subsidiaries, parents, affiliates, attorneys, insurers, representatives and assigns, conservators, and

all persons or entities acting by, through, under, for, on behalf of, or in concert with them, past or

4FA655900; 5


Page 2

Complaint on June 9, 2010. Moyse filed an answer and affirmative defenses on Angust 3, 2010.

C A trial in this Action commenced on June 27, 2011. The jury rendered a verdict
in favor of Plaintiff on Plamtiff’s claims of negligence, negligent misrepresentation and breach
of contract, calculating Plaintiff's total damages as $496,500.00 on June 30, 2011, finding
Plaintiff seventy percent (70%) at fault and liable for $347,550.00; Econo Appraisal fourteen
percent (14%) at fault and liable to Plaintiff for $69,510.00; Rodriguez ten percent (10%) at fault
and liable to Plaintiff for $49,650.00; and Moyse six percent (6%) at fault and liable to Plaintiff
for $29,790.00,

Dd. The Parties deem it in their best interests to enter into this agreement to avoid the
uncertainty, trouble, and expense of further litigation regarding the final judgment amounts and
related post trial issues. By this agreement, the Parties intend to memorialize the terms of their
compromise and settlement of the Action.

AGREEMENT AND MUTUAL RELEASE

NOW, THEREFORE, in consideration of the undertakings contained in this agreement,
and ather good, valuable and sufficient consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:

a Preamble, Recitals and Exhibits. The foregoing preamble and recitals are tte and

correct and, along with the attached exhibit, are integral parts of this agreement.

2. Settlement, Payment to Plaintiff, Econo Appraisal shall pay Plaintiff a total sum
of One Hundred Fifty Thousand Dollars and No Cents ($150,000.00) (he Settlement
Payment), delivery of which has been made to Plaintiff's counsel of record in the Action.

(a) Econo Appraisal's Representation and Warranty as to Insurance Coverage. Econo

Appraisal hereby represents and warrants to Plaintiff that the Settlernent Payment

HAGSSIOR TY


Page 13

28. Entire Agreement. This agreement contains the compleie 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 otherwise. This agreement has
been the product of negotiation, The Parties have had the opportunity to obtain independent
advice from counsel, Prior draft documents were prepared, exchanged and discussed by some or
all of the Parties before finally reaching and entering into this agreement. In any number of
instances, words used in prior drafts may have been changed or removed from the language
ultimately agreed to in this agreement. In the event of a dispute over the meaning of any of the
provisions or requirements of this agreement, the fact that other werds may have been used or
deleted from earlier draft documents or provisions in such draft documents that were modified
before being included herein, shall not be used to aid in the construction of the meaning and legal
effect of this agreement. 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 anderstandings exist between the parties with respect to the subject matter of this
agreement, and this agreement supersedes and discharges any and all prior promises,
acknowledgements, representations, warranties, agreements or other understandings that existed

or may have existed between the Parties.

{SIGNATURES CONTAINED ON NEXT PAGE]

TEAGSSOORE}


Page 16

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO, 10-21197-CIV- HUCK/BANDSTRA

FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR
INDYMAC BANK, FSB,

Plaintiff,

ve

ECONO APPRAISAL INC., ROBERTO
RODRIGUEZ, and LANCE MOYSE,

Defendants.

JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE

Plaindff Federal Deposit Insurance Corporation, as Receiver for IndyMac Bank, FSB
(Plaintiff), and defendants Econo Appraisal, Inc., Roberto Rodriguez, and Lance Moyse (the
Appraiser Defendants), pursuant to Federal Rule of Civil Procedure 41(a), stipulate that this
Court may enter an order without further notice or hearing to dismiss this case with prejudice,
with each party to bear its own costs and attorneys’ fees, In stipulating to dismiss this action with
prejudice, Plaimtiff and the Appraiser Defendants represent, warrant and agree that no party owes
any other party attorneys’ fees or costs under any contract, statute, law, offer of judgment,

proposal of settlement, or otherwise.

{JA688900; 1)

1S