SETTLEMENT AND RELEASE AGREl!~MENT 

Tlus Settlement and Release Agreement ("Agreemenf') is made by, between, and among 

the following undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for Allendale County 

Bank ("FDIC-R"), and John A Harter and Walker R. Harter Sr. (collectively, the "Settling 

Defendants"), (individually, the FDIC-R and the Settling Defendants may be referred to herein 

as "Patty" and collectively as the "Parties"). 

RECITALS 

WHEREAS: 

Prior to April25, 2014, Allendale County Banlc ("Bcmk") was a depository institution 

organized and existing under the laws of South Carolina; 

On April25, 2014, the South Carolina Board of Financial Institutions closed the Bank 

an.d pursuant to 12 U.S.C. § 1821(c), the Federal Deposit Insurance Corporation was appointed 

Receiver. In accordance with 12 U.S.C. § 182l(d), the FDIC-R 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-R succeeded were all of the Bank's claims, 

demands, and causes of action against its fotmer directors, officers, and employees arising fl:om 

the performance, nonperformance, and manner of perfonnance of their respective functions, 

duties and acts as directors, officers, and employees of the Banlc; 

The FDIC-R has asserted claims against the Settling Defendants, each of whom served at 

various times as a director and/or officer of the Bank, for negligence, gross negligence and 

breach of fiduciary duty that arise :fi:om or relate to the performance, nonperfonnance, or manner 

of performance of their respective functions, duties and actions as a director and/or officer of the 

Bank. The Settling Defendants deny liability for the claims. 

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

avoid the tmcertainty and expense of litigation. 
(b)( 4) 

(b)( 4) 

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 I: Payment to FDIC-R 

A. As an essential covenant and condition to this Agreement, on or before January 

15, 2017, ("Payment Date"), and the Settling Defendants , jointly and severally, agree to pay the 

FDIC-R the sum of One Hundred Thousand Dollars ($1 00,000) ("the Settlement Payment"). 

B. The Settling Defendants shall deliver the Settlement Payment to the FDIC-R by 

certified or cashier's check drawn upon a depository institution acceptable to FDIC-R. The check 

or transmittal letter enclosing the check shall include the following information: 

BANK: Federal Home Loan Banlc of New York 

........ ROUTlNG#4L..~-----······· ___ ....... 

FOR CREDIT TO: FDIC National Liquidation Account 

... ACCOIINT#:f ..... _ ......... _ ....... _ ....... 

OTHER BENEFICIARY INFORMATION (OlU): 

a. Fund code(s): 10497 

b. Account officer to be notified and phone number: I 

972-761-8112 

·······················I························································································ )( ) 

c. Description of the Transaction: Allendale County Banlc, Harter Claim 

The Settlement Funds shall be delivered by overnight delivery service addressed as 

follows: 

Federal Deposit Insurance Corporation 

Attn: Cashier Unit 

1601 Bryan Street-17th Floor 

Dallas, TX 75201-3430 

In the event that the Settlement Payment is not delivered to the FDIC-R (or its counsel) 

by the Payment Date, interest shall accme on all unpaid amounts at the rate of 5% per annum 

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fi·om the Payment Date until the date of payment. 

C. If the FDIC-R does not receive the Settlement Payment in full on or before the 

date determined by subsection A above, then the FDIC-R, in its sole discretion, shall have the 

right at any time prior to receipt of the Settlement Payment in full (including all accrued interest) 

to: 

I. Extend the period of time for the Settlement Payment, including interest 

accruing from the date determined by subsection A above, through the date of payment at a rate 

calculated in accordance with 26 U.S.C. § 6621(a)(3); or 

2. Enforce this Agreement, in which event the Settling Defendants agree to 

jurisdiction in United States District Court in South Carolina and to pay all of the FDIC-R's 

reasonable attorney's fees and costs expended in enforcing the terms of this Agreement; or 

3. Terminate the Agreement and institute an action on the F.DIC-R's claims. 

The Settling Defendants further agree to waive any defense based on any statute of limitations 

that would bar any of the FDIC-R's claims and waive all objections, defenses, claims or 

counterclaims, and covenant and agree not to assert any o~jections, defenses, claims or 

counterclaims that did not exist or were otherwise unavailable as of the date this Agreement was 

fully executed; and/or 

4. Seek any other relief available to it in law or equity. 

Any extension oftime under Section I.C.l for delivery ofthe Settlement Payment or 

acceptance of a portion of the Settlement Payment shall not pr~judice the FDIC-R's rights to take 

any of the actions set forth in Section I.C.2 through I.C.4 at any time prior to receipt of 

Settlement Payment (including all accrued interest) in full. 

SECTION II: Releases 

A. The FDIC-R's Releases. 

Upon receipt of the Settlement Payment in f·ull and t~xcept as provided in Section Il.C., 

the FDIC-R, for itself and its successors and assigns, hereby releases and discharges: 

The Settling Defendants and their respective heirs, executors, t111stees, administrators, 

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representatives, successors, and assigns, from any and all cluims, 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 performance, nonperformance, or manner of performance of the 

Settling Defendants' respective functions, duties and actions as officers and/or directors of the 

Bank. 

B. The Settling Defendants' Release. 

Effective simultaneously with the release granted in Section II.A. above, the Settling 

Defendants, on behalf of themselves individually, and their respeclive heirs, executors, trustees, 

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

discharge the FDIC-R, and its employees, officers, directors, representatives, att~rneys, 

successors and assigns, from any and all claims, demands, obligations, 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 as officers and/or directors of the Bank. 

C. Exceptions from Releases by FDIC-R. 

1. Notwithstanding any other provision of this Agreement, the FDIC-R does 

not release, and expressly preserves fully and to the same extent as if this 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 such claims acquired by FDIC~R as 

successor in interest to the Bank or any person or entity other than Bank; and 

b. Against any person or entity not expressly released by the FDIC-R 

in this Agreement. 

2. Notwithstanding any other provision of this Agreement, nothing in this 

Agreement shall be construed or interpreted as limiting, waiving, releasing, or compromising the 

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jurisdiction and authority of the Federal Deposit Insurance Corporation in the exercise of its 

supervisory or regulatory authority or to diminish its ability to institute administrative 

enforcement or other proceedings seeking removal, prohibition, or any other relief it is 

authorized to seek pursuant to its supervisory or regulatory authority against any person. 

3. Notwithstanding any other provision of this Agreement, this Agreement 

does not purport to waive, or intend to waive, any claims that could be brought by the United 

States through the Department of Justice, the United States Attorney's Office for any federal 

judicial district, or any other department or agency of the United States as defined by 18 U.S.C. § 

6. In addition, the FDIC-R specifically reserves the right to seek court-ordered restitution 

pursuant to the relevant provisions of the Mandatory Victims Restitution Act, 18 U.S.C. §§ 3322 

and 3663 ct. ~' if appropriate. 

D. Express Reservation of Rights ofBond Carrier. 

1. Notwithstanding any other provision of this Agreement, nothing in this 

Agreement shall release or prejudice the rights of Security National or any other underwriter of 

any financial institution bond, fidelity bond, or banker's blanket bond on which the Bank is an 

insured, to bring any claims by way of subrogation to the claims of the FDIC-R, against (a) any 

directors, officers, or employees of the Bank, including but not limited to the Settling 

Defendants, in their capacities as directors, officers, or employees of the Bank or in any other 

capacity, or (b) any other individual or entity. 

2. Nothing herein shall be constmed to admit the existence of, or to establish, 

any claim or cause of action on the part of Secw·ity National or any other bond underwriter by 

way of subrogation to claims of the FDIC-R, that would not exist had this Agreement not been 

executed. 

SECTION ill: Waiver of Dividends and Proceeds t'rom Litigatjon 

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

by virtue thereof are or may be entitled to a dividend, payment, or other distribution upon 

resolution of the receivership of the Banlc or proceeds in any litigation that has been or could be 

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brought against the Federal Deposit Insurance Corporation in any capacity or against the United 

States based on or arising out of, in whole or in part, the closing of the Banlc, or any alleged acts 

or omissions by the Federal Deposit Insurance Corporation in any capacity, the United States 

government, or any agency or department of the United States govenunent in cormection with 

the Bank, its conservatorship, or receivership, Settling Defendants hereby knowingly assign to 

the FDIC-R any and all rights, titles, and interest in and to any and all such dividends, payments, 

or other distributions, or proceeds. 

SECTION IV: Representations nnd Aclmowledgcmcnts 

A. Authorized Signatories. All of the undersigned persons represent and warrant that 

they are Parties hereto or are authorized to sign this Agreement on behalf of the respective Pat1y, 

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, tmstees, administrators, representatives, 

successors and assigns. 

B. Advice of CoWlsel. Each Party hereby acknowledges that he, she, or it has 

consulted with and obtained the advice of counsel prior to executing tlus Agreement, and that 

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

C. Financial Disclosure Representation. Each Settling Defendant has submitted 

financial information to the FDIC-R and herein affirms that his/her financial intormation is true 

and accurate as of the date of this agreement. Each Settling Defendant expressly acknowledges 

that, in determining to settle the claims released herein, the FDIC-R has reasonably and 

justifiably relied upon the accuracy of the financial information submitted by the Settling 

Defendants. The FDIC-R has no obligation to independently verify the completeness or 

accuracy of that financial information. 

SECTION V: Reasonable Coopemtion 

The Pa1ties agree to cooperate in good faith to effectuate all the terms and 

conditions of thls Agreement, including doing, or causing tl1eir agents ru1d attomeys to do, 

6 (bE] 
(b)(6) 

(b)(6) 

whatever is reasonably necessary to effectuate the signing, delivery, execution, filing, recording, 

and entry, of any documents necessary to perform the terms of this Agreement. 

SECTION VI: Other Matte1·s 

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 defenses, that this Agreement is not an admission or evidence of liability or infirmity 

by any of them regarding ~my claim or defense, and that the Agreement shall not be offered or 

received in evidence by or against any Party except to enforce its terms. 

B. Execution in Counterparts. This Agreement may be executed in counterparts by 

one or more of the Patties and all such counterparts when so executed shall together constitute 

the fmal Agreement, as if one document had been signed by all Parties; and each such 

counterpart, upon execution and delivery, shall be deemed a complete original, binding the 

Parties subscribed thereto upon the execution by all Parties to this Agreement. 

C. 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 South Carolina. 

D. Notices. Any notices required hereunder shall be sent by registered mail, first 

class, retum receipt requested, and by email, to the following: . . 

If to the FDIC-R: Douglas B. Lang, Counsel 

Professional Liability Unit 

Federal Deposit Insurance Corp. - Legal Division 

3501 Fairfax Dl'ive, Room VS-B-7064 

Arlington, VA 22226-3500 

_________ Email:L-1··-········-·······-···-·_ ....... _ ........ ... _ __ --....~ 

If to the Settling Defendant Walker R. Harter, Sr.: 

Thomas P. Gressette, Jr. 

Pratt-Thoma..c:; Walker, PA 

P.O. Drawer 22247 

Charleston, SC 29413-2247 

................... Email:{ .................... .... l 

If to the Settling Defendant John A Harter: 

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Brian Duffy 

DUFFY & YOUNG, LLC 

96 Broad Street 

Charleston, SC 29401 

(b )(6) ........................................ .... . Email:} .............................................................. ····· .................................................... ... ....................... .. ·L.·····----------....1 

(b )(6) 

(b)(6) 

(b )(6) 

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 and supersedes any prior agreements or understandings. Th is Agreement may 

not be amended or modified, nor may any of its provisions be waived, except in writing signed 

by the Parties boWld thereby, or by their respective authorized attorncy(s), or other 

representative( s ). 

F. Titles and Captions. All section titles and captions contained in this Agreement 

are for convenience only and shall not affect the interpretation of this Agreement. 

G. No Conlidentiality. The undersigned Parties acknowledge that this Agreement 

shall not be confidential and will be disclosed pursuant to the Federal Deposit Insurance 

Corporation's applicable policies, procedures, and other legal requirements. 

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. 

································ ..... :::7~;/ ··-································ 

Date: !!.j:3!.f lo i(:J 

Date: \t ?.~ .\. L, . 

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

Date:hlLI . I b 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR ALLENDALE COUNTY BANK 

ang I By -1-· 

Walker R Harter Sr. 

John A. Harter 

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