.I 

.. 

-l 

.-

•, 

-· 

•l 

. ! 

::.· 

SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agreement ("Agreement") is made by, between, and among 

the following undersigned patties: 

The J>laintiff Federal Deposit Insurance Corporation as Receiver for Community National 

Dank of Sarasota County, Venice, Florida ("FDIC~R"), and Stearns Bank, N.A. ("Steams"} 

(individually, the FDIC~R, and Steams may be refcncd to herein as "Party" and collectively as 

the "Pal1ies"). 

RECITALS 

WHEREAS: 

Prior to August 7, 2009, Community National Bank of Sarasota County ("Bank'') was a 

depository institution organized and existing under the laws of the United States. 

On August 7, 2009, the Office ofthc Comptroller of the Currency closed the Dank and 

pursuant to 12 U.S.C. § 1 R2l(c), the Federal Deposit Insurance Corporation was appointed 

Receiver. In accordance with 12 U.S.C. § 182l(d), the FD C~R succeeded to all rights, titles, 

powers and privileges of the Dank, including those with respect to its assets. 

Among the assets to which the FDJC~R succeeded were all of the Dank's claims, 

demands, and causes of action ~gainst its former law firms and attorneys arising from their 

performance, nonperformance, and manner of perf01mance of leg~ll services for the Bank. 

Defore the Bank failed an action was filed in the Circuit Court for Sarasota County, 

Florida, styled.!. Fred Miller, III and MWcr Thoroughbreds, LLC v. Community National Bank 

ofSarasota County, Case No. 2009~CA~2233NC (''Miller Action"). The Dank maintained that its 

former counsel and law fum (collectively "Attorneys") were responsible, in part, for the 

wrongful conduct alleced in the Miller Action. 
i 

. ·. 

· .. , 

.; 

~; 

On March 10, 2009, the Bank and the Attorneys entered into a Joint Defense Agreement, 

and in July 2009, entered into an Addendum to Joint Defense Agreement ("Addendum'') which 

provided for the Attorneys' insurer to pay a portion of the reasonable attorneys' fees and costs 

incun:ed by the Bank in defending the Miller Action ("Reimbursements"). 

Aflet· the Bank failed, a Revised Addendum to the Joint Defense Agreement ("Revised 

Addendum'') named FDIC-R and Stearns as successors and provided that the terms and 

conditions of the Joint Defense Agreement and Addendum inured to the benefit of li'DICRR and 

Steams. 

Reimbursements Jtave been made to and on behalf of the Parties under the Joint Defense 

Agreement, Addendum, and Revised Addendum and a dispute has arisen between the Pnrties as 

to the allocation and distribution of Reimbursements in the amount of Sixty-Seven Thousand 

Five Hundred Thh1y Nine and 89/100 ($67t539.69) that are held in an Escrow Account with 

Stearns' counsel, Quarles and Bradyt LLP ("Escrow Fund)'). 

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

avoid the uncertainty and expense of litigation to resolve the allocation and distribution of the 

.Escrow Fund . 

NOW, THEREFORE, in consideration ofthe pmmises, 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 01' before thirty (30) 

calendar days following February 9, 2015, Stearns agrees to pay the FDIC-R the sum ofTwentyTwo Thousand Four Hundred Thirty-Nine and 80/100 ($22,439.80) ("the Settlemel).t PaymenC') 

representing the agreed allocation and distribution of the Escrow Fund to FDIC-R. 

2 
.I 

.:: 

·'•. 

f 

D. Stearns shall deliver the Settlement Payment to the FDIC-R by direct wire transfer 

into an account designated by FDIC-R by notice to the attorneys for Steams. 

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 accmed interest) 

to: 

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

accruing tl·om 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); m· 

2. Enforce this Agreement, in which event Stearns agrees to jurisdiction in 

United ~tates District Court in the Middle District of Florida and to pay all of the FDIC-R's 

reasonable attomey's fees and costs expended in enforcing the tem1s of this Agreement; or 

3. Tem1inate the Agreement, and institute an action on the FDIC-R's claims 

to the Escrow Fund. Stearns furthe1· agt·ees to waive any defense based on any statute of 

limitations that would bm· any of the FDIC-R's claims and waive all objections, defenses, claims 

m· counterclaims, and covenant and agree not to assct1 any objections, defenses, claims or 

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

fully executed; andlot· 

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

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

acceptance of a portion of the Settlement Payment sha~l not prejudice 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 aecmed interest) in full. 

SECTION II: Releases 

A. The FDIC-R's Release. 

Upon receipt ofthc Settlement Payment in fhll and except as provided in Section II.C., 

the FDIC-R, for it sci f and its successors and assigns, het·cby releases and discharges Stearns and 

3 
' ·' 

its respective employees, officers, directors, agents, representatives, attomeys, 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 any 

paid or unpaid attorneys' fees, costs, or expenses pursuant to the Joint Defense Agreement, 

Addendum, and Revised Addendum, or that otherwise arise t'rom or relate to the Miller Action, 

including but not limited to the Escrow Ftmd. 

B. Steams' Release.,. 

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

hehnlf of itself, and its respective employees, officers, directors, agents, representatives, 

attorneys, successors and assigns, hereby releases and discharges the FDIC-R, and its employees, 

officers, directors, representatives, attorneys, 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 any paid or unpaid attorneys' fees, costs, or expenses pmsuant 

to the Joint Defense Agreement, Addendum, and Revised Addendum, or that otherwise arise 

from or relate to the Miller Action, including but not limited to the Escrow Fund, 

C. Exceptions fl'Om Releases by FDIC-R. 

1. Notwithstanding any other provision of this Agl·eement, the FDIC-R does 

not release, and expressly preserves fully and to the same extent as ifthis Agreement had not 

been executed, any claims or causes of action: 

a. Against Stearns ot· any other person or entity for liability, if any, 

incurred as the maker, endorser or guarantol' of any promissory note or indebtedness payable or 

owed by them to FDIC-R, the Bank, othci· 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 

4 
·f 

.! 

:i 

.I 

:-. 

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

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

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

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

authori?:ed 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 tlu:ough 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 comt-ordered restitution 

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

and 3663 ct. seq., if appropriate. 

SECTION III: Rep•·esentatious and Acknowledgements 

A. Authorized Signatories. All of the undersigned persons represent and wat'rant that 

they are Parties hereto or arc authod~d to sign this Agreement on behalf of the respective P~rty, 

und that they have the full power and authority to bind such Party to each -and every provision of 

this Agreement. This Agreement she:tll be binding upon and inure t? the benefit of the 

undersigned Patties and theil' respective employees, officers, directors, agents, l'CJ?rcscntativcs, 

successors and assigns. 

B. Advice of Counsel. Each Pmiy 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 Pru.ty by its counsel. 

C. Disposition of Remaining Escrow Fund. The Parties acknowledge and ag1·cc that 

after distribution of the Settlement Payment to FDIC-R, Steams' counsel) Quarles and Brady, 

LLP, shall distdbute the $45,099.89 remaining in the Escrow Fund to Steams. 

SECTION IV: Reasonable Cooperation 

A. The Parties agree to cooperate in good faith to effectuate all the terms and 

5 
(b)(6) 

·.· 

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 distribute the Escrow Fund, and to otherwise perform 

the tenus of this Agreement. 

SECTION V: Other Matters 

A. No Admission ofJ,iability. The 1mdcrsigncd Parties each acknowledge and agree 

that the matters set f01ih in this Agreement constitute the settlement mid compromise ofdisputed 

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

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

received in evidence by or against any Patiy except to enforce its tel'ms. 

B. Execution in Counterparts. This Agreement may be executed in countcrpm1s by 

one Ol' more of the Parties and all such counterparts when so executed shall together constitute 

the final Agreement, as if one document had been signed by all Pm·ties; and each such 

cOlmterpart, upon execution and delivery, shall be deemed a complete oliginal, 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 th~ State of Florida. 

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

class> return receipt req·uested, and by email, to the following: 

Ifto the FDIC-R: 

Ifto ::;TEARNS: Lauren G. Raines, Esq. 

Quarles & Brady, LLP 

101 East Kennedy Dlvd 

Suite 3400 

Tampa, Florida 33602 

6 
(b)(6) 

E. Entire Agreement and Amendments. This Agreement constitutes the entire 

agreement and understanding between and among the undersigned Parties conceming the matters 

set forth herein and supersedes any prior agreements or understandings. This Agreement may 

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

by the Pm1ies bound thereby, or by their respective authori7.ed attomey(:;;), m· other 

re1'resentative(s). 

F. Jitles and Cm~ti®~· All section titles and captions contained in this Agreement 

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

G. No Confidentiality. The undersigned Patties acknowledge that this Agreement 

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

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 authoti:Ged representatives on the dates hereinafter subscribed. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR COMMUNITY NATIONAL BANK OF 

SARASOTA ·NTY-- · 

(b )(

6

) TJate:\;}I~J.fl/tF ~;~L···· ==::~·=·=___,.....---.,........Jr----

Date:~ STEARNS BANK, N.A. 

(b )(6) ••••••••••••••••••••••••••••••••••••••••••••••••••••• om HY:• m••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 

:· 

'·' 

TITLE: Ffo..,-·. A A- H ~ .. ct Pr-t ~ 4t 

PRINT NAME:. _Th_~~~5. .. &.2._ Z.er"\!_K 

1