(b)( 4) 

(b)(4) .... 

(b)(4) ..... 

SEITLEMENT Al"'D RELEASE AGREEMENT 

This Settlement and Release Agreement ("Agreement") is made as of this 2nd day of 

November, 2012 (the ''Effective Date''), by and between the following liDdcrsig.'lcd entities: TI1e 

Federal Deposit Insurance Corporation as Receiver for Wa..l(ulla Bank C'FDIC"), and First 

American Title Insurance Company (''First American"). Individually, the FDIC, and First 

American may be referred to herein as a "Pa.-ty" to this Agreement and collectively as the 

"Parties". 

RECITALS 

WHEREAS: 

1. \VHEREAS, First American issued Wakulla Bank ("Bank") a lender's policy of 

..............title ... insurancenumberL..( ____ ___.Ic•Policy") on June 1, 2006, insuring the Bank according 

to the tenns, provisions1 exceptions, conditions and stipulatiom> of the Policy; 

2. WHEREAS, on November 20, 20(}7, the Bank submitted a claim to closing 

attorney Susan Thompson of Smith, Thompso~ Shaw & Manausa, v.'hich was subsequently 

......... folA4'arded.to .. FirstAmerican···(Glaim···nu."Tibe+ 

the ... in'lured ... pror...rtywereheld.in···fee .. simpleby··L-1_· _________ ___.land were to be 

(b)( 4) ...... encumberedbytheBank'smortgage,butlot~ lwere not actually wholly ov.,ned byc:=J .(b1(4.1 

:::::::;;::::.._IH _______ __,land tha1~······:-· ~~-:---;::::::!.1 p_o_s._ses....,sed a one-half interest in lotsc::J (b)(4J 

(b)( 4) .HHH.H..... andE}nd did not subject his one-half interest in Jots I HHitGthe .. .Bank~smortgag~; Jt.>1(4.1 

3. WHEREAS, the Bank commenced litigation in Franklin County, Florida against 

First American on or about August 24, 2010, which matter was assigned Franklin County, 

Florida Circuit Court Case No. 1 0-000442-CA ("State Litigation"); 

4. Vi'HEREAS, the Bank~s complaint against First Al!lerican in the State I,itigation 

contains two causes of action for breach of the Policy alleging tb.at First American failed to 
(b)( 4) ...... ~~Ql.Y~'l.l.l~g~d.titlc.defects ... pcrtai.ningtolots.._l __ _,lof the insured property, whlch were to be 

encumbered by the Bank1 s mortgage; 

5. WHEREAS. to resolve the alleged title issues underlying the Claim, First 

American retained Florida attorney MartinS. Friedman to commence litigation on behalf of the 

Bank in order to resolve the aHeged O"Wnership interest as to lDts I - ·1-oLthe.insure.d. (t.>)(4.1 

(b)(4) ____ _ Hproper!:ysothattheentiretyoflotslH· !would be encumbered by the Bank's mortgage or 

conveyed to the Bank, wrucb litigation \\-'aS assigned Franklin County, F1orida Circuit Court Case 

No. 09-518-CA CCurativc Litigation'~); 

6. WHEREAS. prior to October l, 2010, the Bank was a state~chartered depository 

institution organi?.ed and existing under the laws of Florida; 

7. "WHEREAS, on October 1, 2010~ the Bank was closed by the Florida Office of 

Financial . .Regulati.cn and pursuant to 12 U.S.C. § 1821(c), the FDIC was appointed receiver. In 

accordance ,-..ith 12 U.S.C. § 1821(d), the FDIC as receiver succeeded to all rights, titles, powers 

and privileges of the Bank, including those with respect to its assets and affairs; 

8. WHEREAS~ among the assets to which the FDIC as receiver suce<:ed.ed were any 

and all of the Bank's claims~ demands, and causes of action against any parties, including, but 

not limited to, claims arising out of title insurance purchased by the Bank; 

9. WHEREAS, on November 8, 2010, the FDIC was substituted as plaintiff in the 

State Litigation. On December 2, 2010, the FDIC removed the State Litigation to the United 

States District Court for the Northern District of Florida. These claims for damages are now 

pending in the United States District Court for the Northern District of Florida in the matter 

captioned Federal Deposit Insurance Corporation as Receiver for Wakulla Bank v. First 

American Title In.surance Company~ Case No.4: 1 OCV533-RH~CAS (".Federal Litigation"). 

2 
10. WHEREAS, on May 28, 2011, the Federal Litigation was stayed pending 

resolution of the Curative Litigation; 

11. WHEREAS, on May 17, 20 12~ the Curative Litigation was resolved, per Notice of 

Voluntary Dismissal, as a result of the FDIC conveying its interest in lots.._l __ __,mlof.Jhe. ... (.t.>J(4.1 

(b)(6)m·m····· HJ.nsuredpropcrtytolH· H. H 

12. WHEREAS, after resolution of the Curative Litigation, a Joint Status Report and 

Request for Amended Scheduling Order was fi.led in the Federal Litigation on August J, 2012; 

13. WHEREAS, the Court entered an Order extending the stay until November 2, 

2012 and setting a trial date for May 7, 2013 in the Federal Litigation; 

1

}. 

...... \VHEREAS, First American has denied liability for the claims asserted in the 

Federal Litigation. 

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

uncertainty and expense of fUrther litigation, and to compromise and settle the Federal Litigation. 

NOW, THEREFORE, in consideration of the mutual covena.1ts and obligations, 

promises) undertakings, payments, and releases stated herein: and other good and valuable 

consideration, the sufliciency of which consideration is hereby acknowledged, the Parties agree, 

each with the other, as follows: 

SECI'ION 1: Payment to FDIC 

A. As an essential covenant and conditi.on to this Agreement, First American agrees 

to pay the FDIC the sum of SIXTY SEVEN THOUSAND AND FIVE HUNDRED DOLLARS 

($67,500) (the !•Settlement Funds") within thirty {30) days of the Effective Date of this 

Agreement. 

B. Upon the execution of an original, or originals in counterpart, of this Agreement 

by each of the Parties to this Agreement, and vvithin thirty (30) days of the Effective Date, the 

Settlement Funds shall be delivered to the IDlC by direct \;,rire transfer into an account 

3 
designated by the FDIC in wliting. In the event that the Settlement Funds are not delivered to 

the FDIC within thirty (30) days of the Effective Date, interest shall accrue on all unpaid 

amounts at the rate of 0.15% per annum from the thirty-first (31) day after the Effective Dare 

until the date of payment. The 0.15% per annum interest rate is based upon one year U.S. 

Treasury bills as reported in 1hc Wall Street Journal at the end of the last quarter inm1ediately 

preceding the date of this Agreement. However, if said Settlement funds arc not delivered to the 

FDIC v.-ithin thirty (30) days of the Effective Date as a result ofihc FDIC's failure to execute 

this Agreement. no interest shall accrue until the day after the FDIC executes the Agreement. 

C. In addition1 and \vithout waiving any other rights that the FDIC may have, in the 

event that all Settlement Funds (including all accrued interest) are not received by the FDIC 

within thirty (30) days of the Eftective Date, then the FDIC, in its sole discretion, shall have the 

right at any time prior to receipt of all Settlement Funds (including all accrued interest) to declare 

this Agreement null and void, shall have the right to extend this Agreement tor any period of 

time 'Uiltil it receives aU Settlement Funds (including all accrued interest), and/or shall have the 

right to enforce this Agreement against First American. In ihat event, First American agrees to 

exclusive personal and subject matter jurisdiction and venue in the United States District Court 

for the Northern District of Flori~ Tallahassee Division, and agrees to pay all of the FDIC's 

reasonable attorneys' fees and costs expended in enforcing the ierms of this Agreement. Any 

decision by the FDIC to extend the terms of this Agreement shall not prejudice its rights to 

declare this Agreement nuU and void, shall not be grounds for any claim of .rescission First 

American, and shall not bar the FDIC from enforcing the tenus of this Agreement against First 

American; provided however, that in the event the FDIC declares this Agreement null and void, 

the FDIC will return any and all amounts paid to it under this Agreement by First American. 

SECTION II: Stipulation and Dismissal 

Upon execution of this Agreement by each of the undersigned Parties and receipt of the 

Settlement Funds (plus any accrued interest), the FDIC shaH dismiss th.e Federal Litigation with 

prejudice and with each Party to bear its own attorneys' fees and costs as these were original1y 

4 
incurred. The Parties agree to file an Agreed M(>tion of DisJ.rjssa.l of the Federal Litigation, 

with prejudice, v.rithin ten (1 0) days after the receipt by the FDIC of the Settlement Funds (plus 

any applicable accrued interest). 

SECTION III: Releases 

A. Release of Fil'st Amcl'ican bY FDIC. 

Effective upon receipt in full ofthe Settlement Fu."lds plus any accrued interest described 

in Section I. above~ and except as provided in Paragraph IIl.C., the FDIC~ for itself and its 

agents, representatives, successors and assigns, hereby fully releases and discharges First 

American, its parents, subsidiaries, affiliates, and reinsurers, and their respective current and 

fonner employees, officers, directors, agents, representatives, attorneys, insurers, successors and 

assigns, from any and all claims, liabilities, demands, obligations, damages (including, hut not 

limited to, money, exemplary, and/or punitive damages)~ suits~ actions~ and causes of action, 

direct or indirect, both knov.11 or unk.nov.n~ whether asserted or which could have been asserted, 

in law or in equity~ that arise from or relate to the Federal Litigation, the Curative Litigation, the 

Policy and any Closing Protection Letter ("CPL") issued in connection therewith. The FDIC 

agrees that any interest it may have U11der the Policy or the CPL (if any) is extinguished and the 

Policy and 6e CPL are cancelled. 

B. Release of FDIC bv First American. 

Effective simultaneously with the release granted in Paragraph II.A. above, F!r:st 

American, for itself and its agents, representatives, successors and assigns, and on behalf of its 

parents, subs.idiaries, affiliates and reinsurers, and their successors and assigns, hereby fully 

releases and discharges FDIC, and its current and former employees, officers. directors. agents, 

representatives, attorneys, successors and assigns, from any and all claims, liabilities, dema.'ldS1 

suits~ obligations, damages (including, but not limited to money, exemplary, and/or punitive 

damages), actions, and causes of action, direct or indirect, whether asserted or which could have 

been asserted, both known or unknown, in law or in equity, that arise from or relate to the 

5 
Federal Litigation, the Curative Litigation, the Policy, and any CPL issued in connection 

therewith. 

C. ExJ2ress Reservations .From Releases By FDIC. 

1. Notwithstanding any other provision) by this Agreement the FDIC docs not 

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

executed, any claims or causes of action: 

a, against First American or a..>ty other person or erttity for liability, jf any~ 

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

owed by them to FDIC~ the Bank, other financial institutions, or any other person or entity, 

including without limitation any claims acquired by FDIC as successor in interest to the Bank or 

any person or entity other than the Bank. provided however that the Parties acknowledge that 

that this Section ffi(C)(l )(a) shall not apply to either the Policy or any CPL, both of which are 

cancelled as provided by this Agreement; 

b. against any person or entity not expressly released in this Agreement; and 

c. which are not expressly released in Paragraphs llLA. or II. B. above. 

2. Notwithstanding any other provision, nothing in this Agreement shall be 

construed or interpreted as limiting, waiving! releasing or compromising the jurisdiction and 

authority of the FDIC in L'le exercise of its supciVisory or regulatory authority or to diminish its 

ability to institute administrative enforcement proceedings seeking removal, prohibilion or any 

other administrative enforcement action, 

3. Notwithstanding any other provision~ this Agreement does oot purport to 

waive, or intend 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 Southern District of Florida 

or any other federal judicia] district. In additio~ for any claim not released herein, the FDIC 

specifically reserves the right to seek court ordered restitution pursuant to the relevant provisions 

of the Victim and Witness Protection Act, l 8 U.S.C. § 3663, et seq., if appropriate. 

6 
SECTION IV: Representations and Acknowledgements 

A. No Admission of Liability. The Parties each acknowledge and agree t..1.at the 

matters set forth in this Agreement constitute the settlement and compromise of dispute-d Claims, 

and that this Agreement is not an admission or evidence of liability> nor an admission of 

~TOngdoing by any of them regarding any claim. 

D. Execution in Counterparts. This Agreement may be executed in cout'!tt."'parts 

by one or more of the Parties named herein and all such counterparts when so executed shall 

together constitute the flll.al Agreement, as if one document had been signed by all Parties hereto; 

and each such counterpart, upon execution and delivery, shall be deemed a complete original, 

binding the Party (or Parties) subscribed thereto upon the execution by all Parties to this 

Agreement A signature transmitted by email shall be as effective as an original signature. 

C. Binding Effect. Each of the Wldersig.'led persons represents an.d warrants that 

they are a Party hereto or are authorl:?..ed to sign this Agreement o.n behalf of the respecEive Party, 

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 t.l-te 

undersigned Parties and their respective heirs~ executors, administrators, representatives, 

successors and assigns. No consents, approvals, orders or authorizations of any other party, 

including but not limited to governmental bodies, arc required for execution: delivery or 

performance of this Agreement. Execution. and performance of this Agreement \~ill not violate 

any statute, law, regulation, judgment, order or decree of any court or governmental authority 

applicable to them, or constitute a default w1der the terms of any agreement, document or 

instrumem to which they are a party. 

7 
D. Choice of Law, Jurisdiction and Venue. This Agreement shall be interpreted, 

comtrued and enforced according to the lavr""s of the State of Florida without regard to its 

principles of conflicts of law. In addition, the Parties agree to exclusive personal and subject 

matter jurisdiction and venue in the United States District Court for the Northern District of 

Florida. Tallahassee Division for any Jitjgation required to enforce this AgR-ement. In the event 

any action or proceeding relating to this Agreement is commenced or otherwise instituted, the 

Parties hereby agree and consent to relinquish and otherwise waive the entitlement, if any, to a 

trial by jury. 

E. Entire Agreement and Amendmtnts. This Agreement constitUtes the entire 

agreement and understanding bet\veen and among the undersigned Parties concerning the matters 

set forth herein. This Agreement may not be amended or modified (nwept by another v.Titten 

instrument signed by the Party or Parties ro be bound thereby, or by their respective authorized 

atromey(.s) or other representative(s). 

F. Reasonable Cooperation. The undersigned Parties agree to cooperate in good 

faith to effectuate all the terms a:1d 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 document~ necessary to conclude and 

dismiss with prejudice the Federal Li6gation and to othetwise perfonn the tenns of this 

Agreement. 

G. No Reliance. Each Party to this Agreement has had the advice of that Party's 

own counseL selected by the Party in the negotiation and settlement ofthis matter and is under no 

undue influence or duress but, instead, has voluntarily entered into this Agreement. In making 

this Agreement, no Party is relying upon any representation {whether affirmative or negaiive, 

8 
(b )(6) 

actual or implied, or spoken, w-ritten, or inferred from sile.nce) made by the other Parties or their 

representotives, agents, employees, or attorneys~ except a.q such representations may be contained 

in this Agreement and only to the extent that such representations are expressly and affirmatively 

~tnted herein. 

H. Future Acts. The Parties agree to execute such other documents and make such 

other assurances as are reasonably necessary to effect the provisions of this Agreement 

I. Advice of Counsel. Each Party hereby acknowledges that it has consulted \\'ith 

and obtained the advice of counsel prior to executing this Agreement! and that every term of this 

Agreement has been explained to thai Party by its counsel. 

J. 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. 

K. Notice. All notices and other conununications that may be necessary in 

connection v(ith this Agreement ("Notices1') shall be made by hand delivery or overnight 

delivery service of the United States Postal Service or equivalent service offered by a private 

carrier. Notices may also be made by email transmission, if followed by transmission of a hard 

copy by one of the foregoing methods. Notices shall be eftective as of the date received, if any 

hand delivery or email transmission, or the date re.flected on th.e senderls receipt acknowledging 

delivery to the United States Postal Service or private carrier. The following persons are 

designated to receive Notices; 

For FDIC: 

Federal Deposit Insurance Corporation 

Attn: Mr. Gregory K. Conway 

3501 Fairfax Drive 

Arlington, VA 22226-3500 

l I 

9 
(b )(6) 

For First American: 

First American Title Insurance Company 

Attn: Mr. Brian Stabley 

2082 Summit Lake Drive 

Talluhassee, Florida 32317 

~m •• I 

The person(s) designated to receive Notices on behalf of a Party and the address(es) to 

which Notices are to be sent may be changed by that Party by y,;ritten Notice to all Parties. 

L. Captions. Captions, paragraph and subparagraph designations, and section 

headings are included in this Agreement for convenience only, and in no way do they define, 

limit~ construe or describe the scope or intent of the respective parts of this Agreement. 

M. Time. Time is of the essence in all matters concerning this Agreement. 

N. No Drafter Inference. Each Party to this Agreement hereby stipuJates. 

covenants, and agrees that each and every term of this Agreement was fully negotiated and 

agreed to by the Parties hereto, and consequently, this Agreement shall be constraed without 

regard to the Party responsjble for its preparation, and it shall be deemed to have been prepared 

jointly by the Parties for purposes of any statute, jurisprudential rule, or rule of contractual 

interpretation or co.nstruction that might cause any provision to be construed against the drafter. 

Any ambiguity or uncertainty shall not be interpreted or construed against any Party based on 

any Party~ .s preparation of the Agreement. 

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IN WITNESS \\'HEREOF, the Parties hereto have caused this Agreement to be executed 

by each of them or their duly authorized represenrntives on the dates hereinafter subscribed. 

Date: November 2, 2012 

Date: November 2, 2012 

• 

FEDERAL DEPOSIT INSURANCE CORPORATION 

BY: 

l I (b)(6) 

: TITL : Counsel 

PRh'\fT NMffi: Gregory K. Conway 

] 1