Zot (SSH NOLYENG «0180 DELS ZHAO NS aus uBio wegseal Ma 6605.6 BnUetb We LY CADY 42) 3O¥e

ninde between or among the Parties. This Setilement Agreement shall not be modified
except in a writing signed by the Parties or their authorized representatives.

IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties
have executed this Settlement Agreement as of the date set forth in the opening paragraph

of this Settlement Agresment.

DATED: August tl » 2608 AMERICAN MORTGAGE LAW GROUP, PC
APPROVED AS TO FORM .

(b)(6)

By:

Ryah FO Thomas, Esq.
Attorneys for Defendant, PREMIUM CAPITAL
FUNDING, LLC, d/b/a TOPDOT MORTGAGE

DATED: August f]_, 2009 PREMIUM CAPITAL FUNDING, LLC, d/b/a
TOPDOT MORTGAGE

(b)(6)

By

Sagat (b)(6)

“yavid Boon  Maumber

Tepe/Print Name and Title

DATED: sual, 2002 ANDERSON, McPHARLIN & CONNERS LLP

(b)(6) APPROVED AS TO FORM

(b)(6)

VANES| “JE wi (b)(6).

f-—_}
Atte vt Plaintiff, CONG
FE DEPOSIT INSURANCE
CORPORATION, as Receiver for
INDYMAC FEDERAL BANK, F.S.B.

2as3741
SECTLEMENT AGRREMENT
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the amount of One Hundred Fifty Thousand Dollars and no cents ($150,000.00) in the
form attached hereto as Exhibit 1. The Stipulation for Entry of Judgment mcorporates by
reference the Judgment (Pursuant to Stipulation), attached io the Stipulation as Exhibit A.
Both the Stipulation and Judgment are incorporated by reference herein and their terms
made a part of this Settlement Agreement. The Stipulation and Judgment shall be held in
trust by INDYMAC’S attorneys of record and shall not be filed unless PREMIUM
CAPITAL breaches paragraph 2.1(a) above and fails to timely cure said breach pursuant
to paragraph 2.4 after receiving INDYMAC’S notice of default as provided in paragraph
2.4, The Judgment (Pursuant to Stipulation) shall not be entered so long as PREMIUM
CAPITAL performs under the terms of this Settlement Agreement with respect to making
the payments required by paragraph 2.1(a) above. Entry of Judgment in aceordance with
the terms of the Stipulation, and enforcement of said Judgment, shall be INDYMAC's
sole recourse in the event of a default by PREMIUM CAPITAL in making the payments
called for herem. INDYMAC’S attorneys of record shall return the original Stipulation
for Entry of Judgment (without the same having been filed with the Court) to PREMIUM
CAPITAL’S attorneys of record, c/o Ryan F. Thomas, Esq., American Mortgage Law
Group, PC, 75 Rowland Way, Suite 350, Novato, CA 94945, within five business days
of INDYMAC’S receipt of the final payment required by paragraph 2.1(b) above.

2.3 In the event PREMIUM CAPITAL defaults by failing to make a
timely payment to INDYMAC as set forth in paragraphs 2.1(a) above, INDYMAC shall
give written notice of the default and notice of its intent to enter Judgment (Pursuant to

Stipulation) to PREMIUM CAPITAL via mail and facsimile at: (1) Andrew Pennacchia,

7483741

SETTLEMENT AGREEMENT
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restitution pursuant to the relevant provisions of the Victim and Witness Protection Act,
18 U.S.C. § 3663, ef seq., if appropriate.
4. MISCELLANEOUS

43 Conditions of Execution. Each Party acknowledges and warrants
that its execution of this Settlement Agreement and Stipulation for Entry of Judgment is
free and voluntary.

4.2 Confidentiality. The Parties agree that neither they nor anyone
acting on their behalf, including their respective attommeys, will disclose to anyone any
information relating to, in any way, the contents or terms of this Settlement Agreement,
or any matters pertaining to this settlement, including its negotiation, unless such
disclosure is: (1) lawfully required by any governmental agency; (2) otherwise required
by law (including legally required financial reporting or other disclosures); or (3)
necessary in any legal proceeding to enforce any provision of this Settlement Agreement.
‘The Parties may disclose the terms of this Settlement Agreement to their respective
auditors, accountants, tax advisors, and legal counsel, but only to the extent required for
professional advice from those sources and only after securing a commitment from those
professionals to maintain the confidentiality of this Settlement Agreement, as required
above, to the greatest extent possible considering the purpose for which the terms of the
Settlement Agreement are needed by those professionals.

4.3 No Admission. It is agreed that no Party hereto admits liability or
wrongdoing of any nature, and that this Settlement Agreement is made as a compromise

of disputed claims.

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SETTLEMENT AGREEMENT
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requests that the court retain jurisdiction over the Parties to enforce this Settlement
Agreement and, if necessary, the Judgment (Pursuant to Stipulation).

2.7 The Parties shall bear their own costs and attomeys’ fees incurred
in the Action.

3. RELEASE

3.1 Unknown Claims, INDYMAC and PREMIUM CAPITAL
acknowledge and agree that the release they give to cach other upon executing this
Settlement Agreement applies to afl claims for injuries, damages, or losses of any type or
nature (whether those injuries, damages, or losses are known or unknown, foreseen. or
unforeseen, patent or latent) which they may have against each other arising from or in.
conjunction with the SUBJECT LOANS and DISMISSED LOANS described in
paragraphs 1.2 and 1.7 of this Settlement Agreement.

3.2 The Parties hereby expressly waive application of California Civil
Code $1542 with respect to the SUBJECT LOANS and DISMISSED LOANS. The
Parties certify that they have read and understood the following provisions of California
Civil Cede $1542 which states in pertinent part 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.

3.3. The Parties understand and acknowledge that the significance and
consequence of its waiver of California Civil Code §1342 with respect to the SUBJECT

LOANS and DISMISSED LOANS is that even if either Party should eventually suffer

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SETTLEMENT AGREBMENT
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Vice President-Legal Affairs, Premium Capital Funding, LLC, 125 Jericho Tumpike,
Suite 400, Jericho, New York 11753; Telephone: (516) 870-1133; Facsimile: (516) 870-
7133 and (2) Ryan F. Thomas, Esq., American Mortgage Law Group, PC, 75 Rowland
Way, Suite 350, Novato, CA 94945; Telephone: (415) 878-0030 x 152; Facsimile: (415)
878-0035,

2.4 PREMIUM CAPITAL shall have five (5) business days from
receipt of the notice of default to cure the default. If PREMIUM CAPITAL fails to cure
the default within five (3) business days, INDYMAC shall retain all consideration it
received, and it may, in its sole discretion, seek to enter the Judgment (Pursuant to
Stipulation) in an amount equal to the Settlement Funds less any amount received by
INDYMAC pursuant to paragraph 2.1(a) above and enforce said Judgment against
PREMIUM CAPITAL Judgment may be entered by ex parte application (without
testimony or trial and PREMIUM CAPITAL further waives the right to a court and/or
jury trial) with notice given to PREMIUM CAPITAL and Ryan F, Thomas, Esq. by
facsimile and telephone at the facsimile and phone numbers listed above and in
accordance with the California Rules of Court

28 Within 5 business days of INDYMAC's counsel's receipt of the
fully executed Settlement Agreement and Stipulation for Entry of Judgment,
INDYMAC"'s counsel shall file a request for dismissal of the entire Action with prejudice.

2.6 Bach Party agrees that Section 664.6 of the Code of Civil

Procedure of the State of California shall apply to this Settlement Agreement and

45398.

SETTLEMENT AGREEMENT
Page 6 of 15
S882-072


or other liabilities of every kind and nature whatsoever, whether legal or equitable and
whether known or unknown, arising out of, resulting from, or relating to the SUBJECT
LOANS and DISMISSED LOANS. The Parties further acknowledge and agree that
neither Party will take any action, assert any claims or demands, or make any report
against the other Party with any federal, state, municipal, or other governmental agency
or court, or any third party including, without limitation, the filing of any future MARI
report, relating to the SUBJECT LOANS and DISMISSED LOANS.

3.5 Express Reservation from Releases by FDIC. Notwithstanding
any other provision, by this Settlement Agreement, the FDIC does not release, and
expressly preserves fully any claims or causes of action that do not arise from or relate to
the Settlement Agreement, or the defense of the same, or any action taken by any other
federal agency.

3.6 As of the date of the execution of this Setilement Agreement, the
FDIC is not aware of any outstanding Quality Control Findings {that have not already
been sent to PREMIUM CAPITAL) reflecting any outstanding claims or demands for
repurchase or indemnity arising from or related to FDIC claims involving IndyMac loans
against PREMIUM CAPITAL.

3.7 This Settlement 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 or the United States Attorney’s Office in any federal judicial

district. _In addition, the FDIC specifically reserves the right to seck court ordered

748374.1

SETTLEMENT AGREEMENT
Page 9 of 15
5662-072


SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT (“Settlement Agreement”) is entered
into and made effective as of the fl day of August 2009 (“Effective Date”), by and
between FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
INDYMAC FEDERAL BANK, F.S.B. (hereinafter "—INDYMAC") and PREMIUM
CAPITAL FUNDING, LLC, d/o/a TOPDOT MORTGAGE, a New York limited liability
corporation ("PREMIUM CAPITAL"). INDYMAC and PREMIUM CAPITAL may

hereinafter be referred to individually as a “Party” or collectively as the “Parties”,

L RECITALS

11 On or about September §, 2003, INDYMAC and PREMIUM
CAPITAL entered into a business relationship governed by a Customer Agreement and e-
Mits User Agreement (hereinafter "Agreement").

1.2 Pursuant to the terms of the Agreement, PREMIUM CAPITAL

submitted io INDYMAC the following loans which are the subject of this Action:

eae a: ‘Loarrmade t loan no. ir the
principal amount of $112,000 secured. by property located at}
Brooklyn, NY 11207.
oe b: ‘Tworloans to loan nas.
ee in the principal amounts of $295,200 and $73,800,
eo respectively, secured by property tocated at} Central Islip, NY
11722,
24S3741
SETTLEMENT AGREEMENT
Page taf 1S

S662-072

(b)(4),(0)
6)
(b)(4),(0)
(6)


Agreement and has conducted such inquiry as they deem necessary and advisable prior to
entering into this Settlement Agreement. The Parties enter into this Settlement
Agreement understanding that facts or other circumstances may exist which are presently
unknown or undisclosed, or which are different from or other than those which they
believe to be the case, and the Parties voluntarily assume all risks attendant to such
unknown, undisclosed, different, or additional facts or other circumstances.

49 Approval, Authority, and Nonassignment, The Parties represent
and warrant to one another that the approval of this Settlement Agreement has been
undertaken in a proper and lawful manner and that they have the requisite power and.
authority to enter into and to perform their obligations under this Settlement Agreement,
and further warrant and represent that with the exception of the Dismissed Loans, they
have not sold, assigned, granted or transferred to any other person, corporate or natural,
or to any entity, any claim, action, demand, or cause of action released by this Settlement
Agreement.

4.10 Number. Whenever applicable, the singular shall include the
plural, and the plural shall include the singular.

4.11 Counterparts/Execution. This Settlement Agreement may be
executed in one or more counterparts, all of which shall form a single agreement. A
Party’s signature on this Settlement Agreement by facsimile or e-mail shall be valid and
effective for all purposes as an original signature, provided, hawever, that the original

signature shall be produced upon request.

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SETTLEMENT AGREEMENT
Page 12 of 15
5662-072


44 Fair Meaning. The Parties hereto further agree that the language
of all parts of this Settlement Agreement shall in all cases be construed as a whale,
according to its fair meaning, and not strictly for or against ary of the Parties

4.5 Governing Law. The Parties agree to submit to the Courts of the
City and County of Los Angeles, California, for any dispute arising out of this Settlement
Agreement, or related thereto, and consent to the jurisdiction of said Courts and further
agree that any and all matters of dispute shall be adjudicated, governed and controlled
under California law.

4.6 Attorneys Fees and Costs. Should any action be commenced to
enforce, interpret, or seek damages, injunctive relief, or specific performance for
violation of this Settlement Agreement, the prevailing party shall, in addition to any other
available relief, be entitled to an award of reasonable attorney's fees and litigation
expenses incurred in the prosecution or defense of the action, including any appeal.

4.7 Severability. The Parties hereto agree that if any provision of this
Settlement Agreement is declared by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby, and such illegal or
invalid part, term or provision shall be deemed not to be part of this Settlement
Agreement,

4.8 Review and Understanding. The Parties have entered into this
Settlement Agreement voluntarily, having fully read and fully understood the meaning
and effect of all of its terms and provisions, and fully understanding its and their costs

and risks. Each of the Parties has consulted with legal counsel concerning this Settlement

7493741

SETTLEMENT AGREEMENT
Page Hf of 1S
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additional damages arising from or in conjunction with the SUBJECT LOANS or
DISMISSED LOANS or any facts or circumstances related to the SUBJECT LOANS or
DISMISSED LOANS that Party will not be able to make any claim for those damages.
Furthermore, each Party acknowledges that they consciously intend these consequences
even as to claims for damages that may exist as of the date of this release relating to the
SUBJECT LOANS and DISMISSED LOANS, but which that Party does not know
exists, and which, if known, would materially affect that Party’s decision to execute this
release, regardless of whether that Party’s lack of knowledge is the result of ignorance,
oversight, error, negligence, or any other cause.

34 Except for the rights, duties, and obligations set forth in this
Settlement Agreement, Stipulation for Entry of Judgment, the Parties each hereby fully,
finally, and forever release and discharge the other Party, and any and all of its
respective, employees, brokers, members, partners, joint venturers, independent
contractors, attorneys, insurers, agents, investors, representatives, officers, directors,
shareholders, independent contractors, and any corporation, partnership or limited
liability company which was or is at any time the parent or wholly owned subsidiary of
such entity, and any such corporation's, partnership's or limited liability company's
officers, directors, employees and/or agents, or any corporation, partnership or limited
liability company which was or is an affiliate of such entity by virtue of common
ownership or contrel, and any such corporation's, partnership's or limited liability
company's, officers, directors, employees and/or agents of and from any and all actions,

causes of action, claims, demands, damages. debts, losses, costs, expenses, attorney fees

749978.

SETTLEMENT AGREEMENT
Page Saf 15
5662-072


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

19 On October 10, 2008, INDYMAC filed a First Amended
Complaint ag to only the SUBJECT LOANS.

1.10 The Parties desire and have agreed to settle all claims relating to
the SUBJECT LOANS and DISMISSED LOANS as described in paragraphs 1.2 and
1.7 of this Settlement Agreement.

2. AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Parties, the Parties, intending to be legally bound,
agree as follows:

21 Payment to INDYMAC. Payment of One Hundred Fifty
Thousand Dollars and no/cents ($150,000.00) (the "Settlement Funds") shall be paid on

behalf of PREMIUM CAPITAL to INDYMAC.

a. The Settlement Funds shall be paid in three equal
payments as follows: $50,000 on September 15, 2009; $50,000 on October 15, 2009; and
$50,000 on November 15, 2009. The three monthly payments shall be made by wiring

the fimds as follows:

Bank : City National Bank
City : Los Angeles

ABA +

Account

2.2 Concurrently with the signing and delivery of this Settlement

Agreement, PREMIUM CAPITAL shall execute a Stipulation for Entry of Judgment in

748976.

SETTLEMENT AGREEMENT
Page 4 of 15
3662-072


DATED: August ji, 2009

48370

$662.07

PEDERAL DEPOSIT INSURANCE CORPORATION

AS RECEIVER FOR INDYMAC
BANK,P.S.B

ZDERAL

By:

Taek 8. Dernwan Senin A teens

Type/Priat Name and Title

SETTLEMENT AGREEMENT
Page 1$ of 1S

4
7

(b)(6)


breached any duty owed to INDYMAC; or that it refused to repurchase and/or indemnify
INDYMAC for losses it contends it sustained as a result of the SUBJECT LOANS.

1.6 On or about May 22, 2008, INDYMAC filed a lawsuit entitled
INDYMAC BANK, FSB v, PREMIUM CAPITAL FUNDING, LLC dba TOPDOT
MORTGAGE, a New York limited liability corporation; and DOES 1 through 50,
Inclusive; Case No. 2:08-cv-04595 ABC ("Action"), The Complaint in the Action
included ten separate causes of action, eight for breach of contract, one for specific
performance and one for negligenec.

1.7 Pursuant to its Complaint in the Action, INDYMAC sought

damages arising out of the SUBJECT LOANS as well as the following additional loans:

(O) (2}toant loan-no: in the principal amount of $477,900

oo secured by property located -at Bikton, MD, 21921, (2) loan to

oe Jroan no: in the principal amount of $322,200 secured by

ei property located at IMA 02301, (3) loan to

XO.) (loan-no; in the principal amount of $448,000 secured by property located at

oe Brooklyn, NY 11207, (4) loan to Hoanno:

ee in the principal amount of $204,000 secured by property located a

ow . |Alsip, IL, 60803, (5) a loan to oarrnos| i
the principal amount of $377,600 secured by property located at Los

Angeles, CA 90011,
1.8 The loans described in items (1) through (5) in paragraph 1.7

above are collectively referred to here as the “DISMISSED LOANS”,

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SETTLEMENT AGREEMENT
Page 3 of 1S
8662-072

(b)(4).(b)
(6)

(b)(4).(b)
(6)
(b)(4),(b)
(6)
(By(4).(6)
(6)

(b)(4),(b)
(6)


'b)(4).(b
(bH(4)-0) C Loarto loan no. ii the principal OND.)
(6) (6)
amount of $51,000 secured by property located at Alsipy it a
60803.
‘b)(4).(b
to {Pd a Loan tg Joan no| inthe Coy.)
(6)
principal amount of $259,560 secured by property located at eo
Pikesville, MD 21208.
(b)(4).(0) 8 ‘Two loans to loan nos, (b)(4).0)
(6) (6)
CxO) in the principal amounts of $140,800 and $35,200, respectively, secured by
oe property-lecated-at oconut Creek, FL 33073.
Oo  —toanrd ican no kn te x0.
principal amount of $54,600 secured by property located at xa)

Lancaster, CA 93535,

1.3. The loans described in paragraph 1.2 above are collectively

referred to herein as the “SUBJECT LOANS.”

14 INDYMAC claims that the SUBJECT LOANS contained

misrepresentations in breach of certain representations and warranties contained in the

Agreement. INDYMAC contends it demanded PREMIUM CAPITAL repurchase and/or

indemnify INDYMAC for losses if sustained as a result of the SUBJECT LOANS but

PREMIUM CAPITAL refused.

15 PREMIUM CAPITAL disputes INDYMAC’s claims relating to the

SUBIECT LOANS. Specifically, and without limitation, PREMIUM CAPITAL denies

that it breached the representations and warranties provisions of the Agreement; that it

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SETTLEMENT AGREEMENT

Page 2 of 15


4.12 Waiver, No term or condition of this Settlement Agreement shall
be deemed to have been waived, nor shall there be an estoppel against the enforcement of
any provision of this Settlement Agreement, except by written instruments signed by the
Party charged with the waiver or estoppel. No written waiver shall be deemed a
continuing waiver unless specifically stated therein, and the written waiver shall operate
only as to the specific term or condition waived, and not for the future or as to any other
act than that specifically waived.

413 Headings. The headings of paragraphs herein are intended solely
for the convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Settlement Agreement.

4.14 Subsequent Agreements. The Parties agree that, upon the
reasonable request of the other Party, they shall execute, acknowledge, and deliver any
additional instruments or documents that may reasonably be required to carry out the
intentions of this Settlement Agreement, including such instruments as may be required
by the laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the
rights of the Parties as between themselves or others with respect to their rights and
obligations created by this Settlement Agreement.

415 Construction. The Settlement Agreement was drafted by counsel
for both Parties.

4.16 Entire Agreement. The Parties hereto further agree and promise
that this Settlernent Agreement sets forth the entire agreement between and among the

Parties and fully supersedes any and all prior negotiations, agreements or understandings

TASXISA

SETTLEMENT AGREEMERT

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