Page 1· 

SETILEMENTANDRELEASEAGREEMENT 

This Settlem~t and R-eie&S~ Agreement ("Agreement1 is mad~ by, between, and among 

the following undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for BankUnited, F.S.B. 

(''FDIC-R") and Fairway Funding Group, Inc. C'Defendant") (individually, the FDIC-R and 

Defen~ant ~y be referr~ to herein as "Party" and coll~tively as the ''Parties"). 

RECITALS 

WHEREAS: 

Prior to May 21, 2009, Bank.United, F.S.B. ("Bank11) was a depository institution 

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

On May 21,2009, the Office ofThrift Supervision closed the Bank and pursuant to 12 

U.S.C. § J821(c}, th~ Federal Deposit Insurance Corporation was appointed Receiver. In 

acco~ce 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 FDlC·R succeeded were certain of the Bank's claims, 

demands, and causes of action against mortgage brokers and loan sellers. 

Defendant and the Bank entered into a written agreement (the "Contract"). Pursuant to 

the terms of the Contta.ct, Defendant originated, sold, and/or assigned to the Bank various 

residential mortgage loans. 

On May 18,2015. the FDIC-R filed a complaint for money damages against Defendant. 

This claim for damages is now pending in the United States District Court for the Southem 

District of Florida in Federal Deposit Insurance Corporation as Receiver for BankUnlled. F.S.B. 

v .. FalrwayFundingGroup, Inc~, Case Number 1:15-cv~21871-CMA ("Action"). Defendant bas 

denied liability in the Action. 

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

avoid the uncertainty and expense of further litigation. 

(b )(6) 

.......... 
Page 2 

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

rel~ s~ herein, the suffi*iency of which considemt:lon ~ herepy acl9lowledged, the • 0 • 

undersigned Parties agree, each with the other, as foltows: 

SECTION I: Payment to FDIC-R 

A. As an essential covenant and condition to this Agreement, the Defendant agrees to 

pay the PDJC-R the sum of five hundred thousand dollars ($500,000) ("the Settlement . . 

Payment") in two installments, as follows: 

1. Two Hundred FUty Thousand dollars ($250,000) to be paid by September 30, 

2016i 

2. Two Hundred.FiftyThousand dollars ($250,000} to be paid by January9, 

2017; 

B. Defendant shall deHver the Settlement Payment to the FDIC.R by direct wire 

transfer into an account designated by FDlC·R by notice to the attorneys for the Defendant or by 

certified or eashier•s check drawn upon a depository in~titution acceptable to FDIC.R and made 

payable to "Mortgage Recovery Law Group, LLP TruSt Account." 

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

counsel) as required by subsection A, interest sbaJl ae<:roe on all unpaid amounts at the rate of 

5% per annum from the date that payment was required by subsection A until the date of 

payment. 

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

date detetmined by subsection A above, then the FDIC-R., io its sole discretion, shall have the 

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

tn: 

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

accruing from the date detenni.n"ed by subsection A above, through tho date of payment at a rate 

calculated in accordance with 26 U.S.C. § 6621(a)(2}; or 

[46SS38/l} 2 

(b )(6) . _ ......... . ..... " 
.... .. 

Page 3 

2. Enforce this Agreement. in which event the Defendant agrees to 

jurisdictio~ in United S~tes District Co.urt in the Southern District of.Fiorida and to pay all of 

the FDIC-R's reasonable attorney's fees and costs ~ended in enforcing the terms of this 

Agreement; or 

3. Terminate the Agreement. move to vacate any dismissal order, to which 

the Defendant agrees to consent, and re--institute an aotian on the FDIC·R 's claims. The 

Defendant further agrees to waive any defense based on any statute oflimitations 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 objections, defenses, claims or counterclaims that did not 

exist or were othc~e unavailable as o~ the date this Agreement was fully executed; and/or 

4. Enforce the Stipulation for Entry of Judgment. attached bereto as Exhibit 

A; and/or 

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

Any extension of time under Section I.D.l ~or delivery of the Settlement Payment or 

acceptance of a portion of the Settlement Payment shall not prejudice the FDIC-R's rights to ·take 

any of the actions set forth in Section I.D.2 or ID.4 at any time prior to receipt of Settlement 

Payment (including all accrued interest) in full. 

SECI'ION II: Stipulation and Dismissal 

The Parties agree tO execute a S.tipulation for Entry of Judgment, ·attached hereto as 

Exhibit A. If Settling Defendant defaults on any installment payment, Plaintiff may seek to 

enforce the Judgment in the United States District Court for the Southern District of Florida on 

an ex parte basis, subject to the Federal Rules of Civil Procedure and the Local Rules of the 

Uoited.States District ~urt for the Southern District· of Florida. 

Contingent upon the execution of Stipulation for Entry of Judgment, :within ten business 

days after the latter of: (1) full execution of this Agreement by an·oftbe Parties, and (2) receipt 

of the .initial $250,000 payment towards the Settlement Payment. the FDIC-R shall file a 

.. Stipula~o~ o(D~missal ~th .Prejudi~e in. the ~cti~n, wher_eby .the .eo~ shall retainj~sdictio~ 

(46SS38/I] . 3 D -l(6.l 
Page 4 

to bear and determine all matters related to the action and to enforce this Agreement. executed by 

the attorneys for all Parties hereto. 

SECfiON ill; Releases 

A. The FDIC~-R·s Releases. 

Upon :recejpt of the Settlement Payment in full and except as provided in Section m.c .• 

the FDI~~ for itself and its successors and assigns, hereby releases and discharges the ' . 

Defendant and its trustees, administrators, representatives, successors, and assigns, ftom 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 the causes of action alleged in 

the Action. .· B. The Defendant's Release. 

Effective simultaneously with the release granted in Section Ill .A. above, the Defendant, 

on bebalfofitselfindivldually, and its trustees, administrators, agents, representatives, attorneys, 

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

CfueCtOrs, representatives, 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 causes of action alleged in the Action. 

c . Exccptioos 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 bad not 

been executed, any claims or causes of action: 

a. Against the Defendant or any other person or entity for liability, if 

any~incurred as the ma:ker,..endorser or guarantor of any Pr-omissory 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 suc:h claims acquired by FDIC-R as successor in 

interest to the Bank or any person or entity other than Bank: and 

• .. 

(46553811] 4 

(b )(6,) 

. .... · 
Page 5 

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

in·tbis. A~nt. .· 

2. Notwithstanding any other provision of this Agreemcn4 nothing in this 

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

jurisdiction and authority of the Federal Deposit Insurance Corporation in the exer~ise of its 

supervisory or regulatory authi>rity or to diminish its ahility·to i~e administrative 

enforcement or other proceedings seeking removal, prohi'bition, or any other relief it is 

authorized to seek pursuant to its supervisory <1r regulatory authority against any person. 

3. Notwithstanding any other provision of this Agrccmcn4 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 distric~ or any other department or &$eocy 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 provisiQns of the Mandatory Victims Restitution Act, 18 U.S.C. §§ 3322 

and ·3663 ~ m6 if appropriate. 

SECTION IV: Represeatatioas and Acknowledgements 

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 Party, 

and that they have the full power and·authorlty 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, trustees, administrators, representatives, 

successors and assigns . 

. B. . Advice of·Coun§el. Eadi· Party hereby acknowledges that be, she, or it has 

consulted with and obtained the advice of oounsei prior to executing this Agreemen4 and that 

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

{46553811) s 

(b )(6) ............. ··· 

·········· 
Page 6 

SECI'ION V: Reasonable Cooperation 

A. The Parties agree to· cooperate in go~d f~th to· effectuate all the terms and 

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 conclude the Action and to otherwise perfonn. the 

terms of this Agreement. 

SECTION VI: Other Matters 

A. No Admis§ion g{LiAbilitt. The undersigned P~ies 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 any claim or defense, and that the Agreement shall not be offered or 

received in evidence by or against any Party except to enfqrce its tenns. 

B. &Gsulion in ~unterparts. 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 if one document had been signed by all Parties; and each such 

countel'p81'4 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 enforoed 

according to applicable federal law,. or in its absence.· the laws of the State ofFlorida. 

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

class, return receipt requested, and by emaiJ, to the following: 

............ ········ 

{465538/l] 6 

(b )(6) .............. ~· ... .. .. 
Page 7 

If to the FDIC·R: 

Paul~eyin 

Mortgage Recovery La\_\' G!Oup. LLP 

700 N. BiaDd Blvd., Suite 830 

Glendale, California 91203 

=~rne; cst8)63~-79oo 

If to the Defendant: 

Thomas D. Shults. Esq. 

Kirk Pinkerton 

240 S. Pineapple Ave., 6th Floor 

Sarasota, Florida 34?36 · 

Telephone: (941) 364-2425· 

...... Bmail:.._l --------"' 

E. Entire Agreement and A1nendmenm. This Agreement constitutes the entire 

agreement and understanding between and among lhe undersigned Parties concerning the matters 

set forth herein and supersedes .any prior-agreements or Wlderstandings. This Agreement may . . . .. . . . . . ~ . . . 

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

by 1he Parties bound thereby, or by their respective authorized attomey(s ), or other 

representative(s ). 

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

are for convenience only and shall not affect the inte~pretation of this Agreement. 

G. No Confidentialit¥. The undersigned Parties acknowledge that this Agreement 

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

Cor:poration's applicable policies, procedures, and other legal requirements. 

{46553811] 7 

......... ~··•"" 

·········· 

(b )(6). . ........ _ ........ . 
(b )(6) 

Page 8 

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. 

.................................................................................................................... 

Date: W {t ~ ( lJ. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR BANKUNITBD, F.S.B. 

.......... .. .......... ......... ...... ...... .......... I BY: WH· ······· 

{465538/1] 

TIU~·------~--~V~~=l~U~----­

PRJNT NAME: }j; """-\ \f I Jk. ~\"'---._ 

FAIRWAY FUN G GROUP, lNC. 

BY:,~~~~¢-~--------------­

TITLE:.~~~~~~--~~--~~-­

PRINTNAME:_~~--~~=~~--

8 

(b )(6) ............ ··········· ····· ····· ....