SETTLEMENT AND RELEASE AGREF.MF.NT 

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

the following Widersigned parties: 

'lb.e Plaintiff Federal Deposit Insurance Corporation as Receiver for AmTrust Bank 

("FDIC-R"), and Defendant Gary A. Horn, Esq. ("Settling Defendant"), (individually, the FDIC-

~ ~d ~ettling Defendant may be referred to herein as "Party" and collectively as the "Parties"). 

Rt~:CITALS 

WHEREAS: 

Prior to December 4, 2009, Am Trust Bank ("Bank") was a depository institution 

organized and existing under the laws of the United States; 

On December 4, 2009, the Office of Thrift Supervision closed the Bank and pursuant to 

p U.S.C. § l82l(c), the Federal Deposit Insurance Corporation was appointed Receiver. In 

. accordance with 12 U.S.C. § 1821(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 FDIC-R succeeded were all of the Bank's claims, 

demands, and causes of action that are the subject of this Agreement; 

On December 3,.2012, the FDIC-R filed a complaint for money damages against, among 

others, the St:ttling Defendant, who served as a closing attorm:y for the Bank. Those claims for 

damages are now pending in the United States District Court for the Eastern District of New 

York in FDIC as Receiver for AmTrust Bank v. Horn, et al., Case No: 12-CV-5958 (the 

"Action"). The Settling Defendant has denied liability in the Action. 

The undet'signed Parties deem it in their best interests to enter into this Agreement to 

avoid the uncertainty and expense of further litigation. 

NOW, THEREFORE, in consideration of the promises, 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 1: Payment to FDIC-R 

A. As an essential covenant and conctition to this Agreement, on or before thirty (30) 

calendar days following the date on which counsel for the Settling Defendant receives a copy of 

this Agreement executed by the fDIC-R, the Settling Defendant and/or its insurer, American 

Guarantee & Liability Insurance Company, agree to pay the FDIC-R the sum of Six Hundred 

Thirty Thousand Dollars ($630,000.00) ("the Settlement Payment''). 

B. The Settling Defendant shall deliver the Settlement Payment to the FDIC-R by 

.direct wire transfer into an accmmt designated by FDIC-R by notice to the attorneys for the 

Settling Defendant, or by certified or cashier's check drawn upon a depository institution 

acceptable to FDIC-R, or by check issued by American Guarantee & Liability Insurance 

Company. 

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

date detennined by subsection A above, then th~ FDIC-R, in its sole disl;retion, shall have the 

right at any time prior to receipt of the Settlement Payment in full to: 

1. Extend the period of time for the Settlement Payment; or 

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

jurisdiction in United States District Court for the Eastern District ofNew York and to pay all of 

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

Agreement; or 

3. Terminate the Agreement, move to vacate any dismissal_order, to which 

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

Settling Defendant further agrees to waive any defense based on any statute of limitations that 

would bar any of the FDIC-R's claims and waive all objections, defenses, claims or 

counterclaims, and covenants and agrees not to assert any objections, defenses, claims or 

counterclaims that did not exist or were oth~rwise Wiavailable as of the date this Agr.eement was 

fully executed; and/or 

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

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Any extension oftimc under Section I.C.l for delivery of the Settlement Payment or 

acceptance of a portion uf the Settlement Payment shall 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 Paymen~ in fuJI. 

SRCTION II: Stipulation and Dismissal 

Within !en business days after the latter of (1) full execution of this Agreement by all uf 

the Parties, and (2) receipt ofthc Settlement Payment, the FDIC-R shall file a stipulation of 

dismissal with prejudice, executed by the attorneys for all Parties hereto. 

SECTION III: Releases 

A. The FDIC-R's Releases. 

Upon receipt of the Settlement Payment in full and except as provided in Section III.C, 

the PDIC-R, for itself and its successors and assigns, hereby releases and discharges: the Settling 

Defendant and his respective heirs, executors, trustees, administrators, representatives, insurers, 

successors, and assigns, from any and all claims~ demands, obligations, damages, a~tions, and 

causes of action, direct or indir~ct, 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 Settling. Defendant's Release. 

Effective simultaneously with the release granted in Section III.A above, the Settling~ 

Defendant, on behalf of himself and his respective heirs, executors, trustees, administrators, 

agents, representatives, insurers, 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 the causes of 

action alleged in the Action. 

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C. Exceptions from Releases by FDIC-R. 

1. Notwithstanding any other provision of this Agreement, the FDIC-R does 

not release, anc,i expressly preserves fully and to the same extent as if this Agreement had not 

been executed, any claims or causes of action: 

a. Against the Settling De~endant or any other person ot entity for 

liability, if any, incurred as the maker, endorser or guarantor of any promissory 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 such claims acquired. by FDTC-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 

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

juri~diction and authority of the Federal Deposit Insurance Corporation in the exercise of its 

supervisory or regulatory authority or to diminish its ability to instit1..)te administrative 

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

authorized to seek pursuant to its supervisory or regulatory authority against any person. 

3. Notwithstanding any other provision ofthis Agreement, 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 district, or any other· department or agency of the United States as defined by 18 U.S.C. § 

6. The FDIC-R cannot waive court-ordered restitution awarded pursuant to the relevant 

provisjons ofthe Mandatory Victims Restitution Act, 18 U.S.C. §§ 3322 and 3663 .c.t. seq. 

SECTION IV: Representations and Acknowledgements 

A Authorized Signatories. All. of lhe 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 authority to bind such Patty to each and every provision of 

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this Agreement. This Agreement shall be binding upon and inwe to the benefit ofthc 

undersigned Parties and t heir respective heirs, executors, trustees: admi.nistr.ators, representatives, 

successors and assigns. 

B. Advice o.(G..Q.!!.nsel. Each Party hereby acknowledges that he, she, or it has 

consulted with and obtained the advice of counsel prior to executing this Agreement, and that 

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

SECTION V: Reasonable Cooperation 

A. The Parties agree to cooperate in good faith 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 perform the 

terms of this Agreement. · 

SECTION VI: Other Matters 

A. No Admission ofLii!b.Ui_ty. The undersigned Parties each acknowledge and agree 

that the matters set fotth in this Agreement constitute the settlement and compromise of disputed 

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

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

received in evidence by or against any Party except to enforce its terms. 

B. Exc~'l!t!Qnjn Counterparts. This Agreement may be executed in COWlterparts by 

one or more of the Parties and ali such counterparts when so executed shall together constitute 

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

counterpart, 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 enforced 

according to applicable tedcrallaw, or in its absence, the laws ofthe State ofNcw York. 

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

class, return receipt 1·cquested, and by email, to the following: 

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If to theFDJC-R: William W. Jacobs, Thompson Hinc LLP, 3900 Key Center, 127 Public 

(b )(6)...... §q:tl.~r.~,C.l~ve.lan.dJ1I:L44ll4,216.566.55l3,'-l---······-·· ________ _, 

If to the ~ettling Defendant: Matthew K. Flanagan, Catalano Gallardo & Petropoulos, 

L.T .. P., 100 Jericho Quadrangle, Suite 326, Jericho, NY 11753, 516.931.1800, Matthew Flanagan 

(b )(6) ····t;;;;;L;;;;;;;;;-·········;;;;;.---·---____ ____, 

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

agreement and understanding bt:twl!en and among the undersigned Parties com:erning Hie 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 be waived, except in writing signed 

by the Parties bound thereby, or by their respective authorized attorncy(s), or other 

represcntativc(s). 

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

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

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

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

Corporation's applicable policies, procedures, and other legal requirements. 

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(b)(6) 

IN WITNESS WHEREOF, the Parties hereto have caused this i\grt!t!mt!nt to be executed 

by each of them or their duly authorized representatives on the dates herdnaftt!r subscribt!tl. 

·········••m• ··················••m• mr;~l~m························· 

Date:. b ~015 

Date: 

FEDERAL I>El,OSI'I' INSlJI~ANCE CORPORATION 

AS RECEIVER FOR AMTRUST BANK 

·············,;~ JL·· _········_······· .... ········_········_·· ------:~----....J-----

TlTI,E: _(&Vh":.d 1 1-::rt Div;Si!M 

PRINT NAME: __ Sc-."""ve. \ rs. Lvl ZBY: -----

GARY A. HORN, ESQ., individually 

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IN WITNESS WHEREOF, the P~rties hereto have caused this Agreement to be executed 

by each of them or their duly authorized representatives on the dutes hereinafter subscribed. 

Date: ______ _ 

FEDERAL DEPOSIT INSURANCE CORPORA TIOJ\ 

AS RECEIVER FOR AMTRUST BANK 

BY: ----------------------------- TITLE: ----:::;;-----

PRlNT NAM.E/J ,/' 

(b)(6) _____ _ 

·----------------------

Date: 6 -l. 3 .-- /..T BY:_ 

~------------~--~--------~ GARY A. HORN, EsQ:, individually 

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