Page 5

4, Attorney’s Fees and Costs. Bach party shall bear its own attorney’s fees and
costs with respect to the Litigation,

5 Amendment. This Agreement may not be amended or modified at any time
except by any instrament in writing executed by all of the parties hereto,

6. Execution. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall ‘constitute one in the same
instrament. The parties also agtee that, without receiving further consideration, they will sign
and deliver such documents and do anything else that is reasonably necessary in the future to

make the provisions of this Agreement effective,

7. Integrated Agreement, ‘This Agreement sets forth the entire understanding °

between the parties concerning the subject matter of this Agreement and incorporates all prior
negotiations and understandings. There are no covenants, prontises, agreements, conditions or
understandings, either oral or written, between them relating to the subject matter of this
Agreement other than those set forth herein.

&. Governing Law, This Agreement shall be governed by and construed in
avcotdance with Minnesota law (excluding any conflict of laws tule or principle that might refer
the governance or construction of thia Agreement to the law of another Jurisdiction). Nothing in
this Agreement shall require any unlawful action or inaction by any party hereto.

9 Severability. If any portion of this Agreement is found to be unenforceable, the
parties desire that all other Portions that can be separated from the unenforceable portion or
appropriately limited ia scope shall remain fully valid and enforceable,

10. Representation, No representation or warranty has been made by or on behalf of

any party to this Agreement (or any officer, director, employee or agent thereof} to induce any



Page 8

Theisen, Inc. doing business as Theisen
Appraisals Ra

| Witnesses (b)(6)
(b)(6)
By: | —
Panera Todd i sas Name: JERR TEL SC)
; . Tithe: (init
(b)6) pa: AL- 1-64

Printed Name: CAevg Nelo

i
}
i
FI



Page 4

employees, owners, agents, affiliates, successors, estates, heirs, insurance carriers, fiduciaries,
and assigns, jointly and severally, from any and all claims, demands, actions ot causes of action,
of whatever nature or description, known or unknown, now existing or hereafter acquired, and
whother or not asserted in the Litigation, which FDIC had, has, claims to have, or may hereafter
acquire against Tomlinson and Theisen, arising out of the facty and circumstances alleged in the
Litigation,

In accepting the Seitlement Amount, FDIC hereby releases and discharges that fraction,
portion, or percentage of the total cause of action or claim of damages the FDIC and/or IndyMac
now have or may hereafter possess against all parties responsible for any damages that shall by
irial or other disposition be determined to be the sum of the fraction, portion, or percentage of
causal fault for which Tomlinson and/or Thetsen are found to be liable te FDIC andor IndyMac
88 9 consequence of their claims in the Litigation.

3, Express Reservation from Releases by FDIC, Notwithstending any other
provision, by this Agreement, FDIC does not release, and expressly preserves fully and to the
same extent as if the Agreement had not been executed, (a) any claims or causes of action that do
not arise from or relate to the Appraisals, the Litigation, or the defense of the same, or (b) any
action taken by-eny other federal agency. In addition, this 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 Altomey’s Office in any federal judicial district. In
addition, FDIC specifically reserves the tight to seek court-ordered restitution pursuant to the

relevant provisions of the Victim and Witness Protection Act, 18 U.S.C, § 3663, et seq, if

appropriate,



Page 6

other party to enter into this Agreement or to abide by or consummate any transactions
contemplated by any terms of this Agreement, except representations and warranties, if any,
' expressly set forth herein. In entering into this Agreement, the parties hereto represent that they
have proceeded with the advice of an attomey of their own choice, that they have read the terns
" of this Agreement, that the terms of this Agreement have been completely read and explained to
the parties by their attomey, and that those terms ate fully understood and voluntatily accepted
by the parties. ,
11, Authority. Each person signing this Agreement on behalf of. any entity warrants
‘or represents that he/she has the full and complete authority to enter into this dereement on
behalf of that entity.

EN WITNESS WHEREOF, the parties to this dgreement have executed this Agreement 88

of the date indicated by each party’s signature.



‘Page 1

RELEASE AND SETTLEMENT. AGRE! EMENT

This Release and Settlement Agreement (“Agreement”) is entered into this BBedaay of

¢ Yeas ee : 2009, by and beiween the Federal Deposit Insurance Corporation, as

Receiver for IndyMac Federal Bank, FSB CFDIC’), David Tomlinson (Tomlinson), and

Theisen, Inc, doing business as Theisen Apptaisals (“Theisen”), with respect to the claims made

in the case captioned Federal Deposit Insurance Corporation, as Receiver for IndyMae Federal

Bank, FSB vy. American Wholesale Lending, LLC, et al. United States District Court for the
i District of Minnesota, Case No. 07-CV-04514-JNE/IIG (the “Litigation”).

RECITALS

WHEREAS, IndyMac Bank, F.S.B. (“Old IndyMac”) funded mortgage loans secured by
Otsego, (b)(4),(b)

(b)(4),(b) the properties located aff Otsego, Minnesota and

Minnesota (the “Properties”;
WHEREAS, Tomlinson performed appraisals of the Properties in the name of Theisen , i
(the “Appraisals”;
WHEREAS, Qld IndyMac asserted claims in the Litigation against Tomlinson and j
Theisen based on the Appraisals; i .
WHEREAS, on July 11, 2008, Old indyMac was closed and the Federal Deposit ,

Insurance Corporation was appointed as receiver of Old dndyMae,

WHEREAS, a new institution named IndyMac Federal Bank, FSB (“New fndyMac”) was
chartered on July 11, 2008 and certain of the assets:of Old IndyMac incinding the Litigation,
were transferred to New IndyMac;

WHEREAS, the Federal Deposit Insurance Corporation was appointed as conservator

and receiver of New ladyMac;



(b)(6)

Page 7

Witnesses

Printed Name: Re View De. , ewe (

Printed Name: Anopew ‘tbe &

Federal Deposit Insurance Corporation, as
Receiver for IndyMac Federal Bank, PSB

By:
Name: _\3 ce \aadh S Cow if

Title: _¢ tts torn

Date: _ {3 ~ 2.23 -~2 004%

David Tomlinson

Witnzeses

Printed Name: VOCSAM Z Vacthes

Printed Name: Mere n Themeiren,



Page 2

WHEREAS, Old IndyMae and New IndyMac are hereinafter collectively referenced ag
, “IndyMac;

WHEREAS, FDIC is entitled to pursue the claims asserted in the Litigation by IndyMac,

WHEREAS, the Federal Home Loan Mortgage Corporation (“Freddie Mac”) assigned
any and all claims against Zomlinson and Theisen relating to the Litigation and Appraisals to
PDIC.

WHERBAS, the FDIC has not reassigned Freddie Mac’s claims against Tomlinson and
Theisen;

WHEREAS, Tomlinson and Theisen expressly deny any liability relating to the asseried
claims in the Litigation; and :

WHEREAS, to avoid any further expense of litigation, FDIC, Tomlinson, and Theisen
voluntarily enter into this Agreement.

in consideration of the above and for such other good and valuable consideration, the
sum and sufficiency of which is hereby acknowledged and based on the mutual promises and
conditions contained herein, FDIC, Tomlinson, and Theisen agree as follows:

I, Recitals. The above Recitals are incorporated herein by reference and made a
part of this Agreement. :
; 2 Dismissal and Release. FDIC, through counsel, shall execute a Dismissal with
Prejudice and- without costs or atlomey’s fees to any party regarding all claims asserted by
IndyMac and continued by FDIC against Tomlinson and Theisen in the Litigation; Torlinson,
through counsel, shall execute a Dismissal with Prejudice and without costs or attorney's fees to

any party regarding all cross-claims asserted in the Litigation: Theisen, through counsel, shall



Page 3

execute a Dismissal with Prejudice and without costs or altomey’s fees to any party regarding all
cross-claims asserted in the Litigation; and the parties shall release one another as follows.

For and in consideration ‘of the terms and conditions of this Agreement, Tomlinson and
Theisen, their officers, directors, shareholders, insurers, employees, owners, agents, affiliates,

‘ Successors, estates, heirs, insurance carrier, fiduciaries, and assigns, jointly and severally, do
“absolutely and unconditionally release FDIC from any and all claims, domands, actions or causes
of action, of whatever nature or description, known.or unknown, now existing or hereafter
acquired, and whether or not asserted in the Litigation, which Tomlinson and/or Theisen had, has,
claims to have, or may hereafter acqnire against FDIC arising out of the facts and circumstances
alleged in the Litigation.

For and in consideration of the terms and conditions of this Agreement, Tomlinson and
Theisen, their officers, directors, shareholders, insurers, employees, owners, agents, affiliates,
successors, estates, heirs, insurance carriers, fiduciaries, and assigns, jointly and severally, do
mutually agree to absolutely and unconditionally release each other fom any and all claims,
demands, actions or causes of action, of whatever nature or description, known or unknown, now
existing cr hereafter acquired, and whether or not asserted jn the Litigation, which Tomlinson
and Theisen had, has, claims to have, or may hereafter acquire against each other arising out of
the facts and circumstances alleged in the Litigation,

For and in consideration of the payment of $35,000 (Thirty-Five Thousand Dollars)
(hereinafter the “Settlement Amount”) to be payable to the client trust account of RI Landau
Partners PLLC immediately upon execution of this Agreement, and in consideration of the terms
and conditions of this Agreement, FDIC. its officers, agents, and assigns do absolutely and

unconditionally release Tomlinson and Theisen, their officers, directors, shareholders, insurers,