SETTLEMENT A~D RELEASE AGREEMENT 

This Sett l~men t and Release Agreement ("Agreement") is made by, betv-.·een, and among 

the following undersigned parties: 

The Plaintiff Federal Deposit lnsurance Corporation as R~.!cciver for Sunrise Bank of 

Arizona (''FOlC-R"), and Gibson. Nakamura & Associates. P.L.L.C. (f/k/a Gibson~ Nakamura & 

Green, PLLC)~ Scott D. Gibson, Brook Billings, Kristen Brady (f/k/a Kristen M. Green), and 

John Brady (collectively the '·Settling Defendants'') (individually, the FDIC-R and the Settling 

Defendants may he referred to herein as '' Party~' and collectively as the ·'Parties'"). 

RECITALS 

WHEREAS: 

Prior to August 23, 201 3, Sunrise Bank o f Arizona ("Bank") was a depository institution 

organized and existi ng under the laws of the State of Arizona: 

On March 20. 2012, the Bank filed a complaint for money damages against the Settling 

Defendants in the Superior Court of Arizona in and for Pima County, Arizona (the "Court"'), 

Case No. C20 121792 (the ''Action"). The Settling Defendants denied liahility in the A<.:tion; 

On August 22. 2013. the Bunk and the Settling Defendants attended mediation before 

Judge Carmine Cornelio. At the mediation. the Bank and the Settling Defendants reached 

agreement on certain material terms of a settlement, which \:Vere dictated on the otlicial Court 

record and subsequently reduced to a •vritten Minute Entry oftht; Court; 

On August 23, 20 1.1, the Arizona Department of Financial Institutions closed the Hank 

and pursuant to 12 U.S.C. § 1821(c) the federal D~p it Insurance Corporation was appointed 

receiver. The fDIC-R represents that: (a) in accordance with 12 U.S.C. § 1821 (d). the FDIC·R 

succeeded to all rights, titles, powers and privileges of th~ Bank, including those with n:spccl to 

its assels; (b) among the assets to whic h the FDIC-R suc<.: ~edcd were all of the Hank's claims. 

demands, and causes of actions against its former attorneys arising from the pcrfom1ance, 

nonperf(xmancc. and manner of perl(mnance of th~ir respective functions. dutil.:s and acts as 

anorn<.:ys for the Hrutk: incl uding those claims asserted in h~ Action: and (c) the FDIC-R is the 
current owm.:r of. and has not assigned. sold, or transferred any intercsr in. the claims asserted in 

the Action: 

The undersigned Patties deem it in tb~ir best inL~ re!:i S to enter into this Agrt.!emcnt to 

avoid the uncc11ainty and expense of further litigation. 

NOW, THEREfORE, in consideration of the prmmses, undertakings. rmyment.s. and 

rcl a~e s stated herein, the su1licicncy of ·which consideration is hereby acknowledged. the 

undersigned Parties agree. each w·ith the other, as follows: 

SECTION 1: Pa)·ment to FDIC-R 

!\.. J\s an essential covenant and condition to this Agrc(;ment. on or bef()re thirty (3 0) 

calendar days following the date the f DlC-R executes this Agreement, the Settling Defendants 

agree to pay the FDIC-R the sum of$1 80.000 (llu: ''Settlement Payment"). 

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

direct \vire transfer into an account designated by FDIC-R by notice to the attorneys for the 

Settling Defendants and Insurer or hy certified or cashier's check drawn upon a depository 

institution acceptable to FDIC-R. 

ln the event that the ~.: llkment Payment is not delivered to the FDIC-R (or its counsel) 

hy May 1, 20 14 interest shall accrue on all unpaid amounts at the rate of 5% per annum from 

May 1, 20 14 until the datt:: of payment. However, if said Settlement Funds are not delivered to 

the FDIC-R by May 1, 20 14 as a resuh of the FDIC-R's fai lure to execute this Agreement. no 

interest shall accrue until five days after the FDIC-R executes the Agreement. 

C. If the FDIC-R does not receive the Settlement Payment in f1.Jll on or be fore the 

date determined hy subsection A aho\'e. then the FDIC -R in its sole discretion. shall have the 

right at any t1me prior to receipt of the Settlement Payment in full (incl uding all accrued interest) 

to: 

1. Extend lhc period of time for the Settlement Payment. incl uding interest 

accruing from the date determined by subsection A above, through the date of payment at a rate 

calculaLcd in accordance with 26 U.S.C. § 66~ I (a)(3); or 
2. Enforce this Agreement, in 'vhich event the Settling Defendants agree to 

j urisdiction in the Superior Court of Arizona in and for Pima County, Arizona, and to pay all of 

the FDJC-R's reasonable allorney's fet!s and costs expended in enlorcing the terms of this 

Agreement; or 

3. Terminate the Agreement move to vacate any dismissal order. to whil.:h 

the Settling Defendants agree to consent, and re-institute the Al.:tion on the FDIC-R · s claims. 

The Sertling Defendants furt her agree to waive any statute of limitations that vvould bar any of 

the FDIC-R's claims and '1.-vaive all obj ections, defenses. claims or counterclaims, and covenant 

and agree not to assert any objections, de fenses ~ c laims or counterclaims that d id not exist or 

were othe rwise unavailable as of the date this Agreement was fully executed; and/or 

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

Any extension of time under Section I.C.l for 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 Sectio n I.C.2 through l.C.4 at any time prior to receipt of 

Settlement Paymenl (incJuding all accmed interest) in full. 

SECTTON II: Stipulation and Dismissal 

Withi n ten business days aft~r the latter of ( 1) full execution of this Agreement by all of 

the Parties, and (2) receipt of the Senlement Payment. plus any accrued interest the FDfC-R 

shall fi le a stipulatio n o f dismissal \Vith prejudice. executed by the attorneys for all Pa1ti cs 

hereto, in the fom1 attached he::rcto as Exhihit A. in the Al.:tion. 

SECTION Ill: Releases 

Upon receipt of the Senlement Payment in full and t:xcept as provided in Section lll.C, 

the FDIC-R, Cor itself and its successors and assigns, hereby releases and discharges: 

\ . The Settling Ddcndants and their respective heirs. executors. trustees, 

administrators, representatives. im:urers, successors, and assigns, from any and all c laims, 
demands. ohligations. damages. actions, and causes of action. direct or indirect. in law or m 

equity, belonging to the FO£C-R. that arise from or relate to the claims alleged in the Action. 

B. The Settlin!l Defq 1dan1s' Release. 

Effective simultaneously with the release granted in Sc~tion liLA above. the Settling 

Defendants, on behalf of themsdves individually, and their respective heirs. executors. trustees. 

administrators. agents, representatives, attorneys, successors. and assigns, hereby release and 

discharge the FDIC-R. and its emplO.J'ees. officers, directors. representatives, attorneys, 

successors. and assigns, from any and all claims, demands, ohligations. damages, actions. and 

causes of action, direct or indirect, in lav,· or in equity, that arise from or relate to the claims 

aHeged in the Action. 

C. Exc~p tions fron} Releas.es l3v FDIC-R. 

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

not release. and 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 Senling Defendants or any other person or entity for 

liability, if any, incurred as the maker, endorser or guarantor of any promissory note or 

indebtedness payable or owed by them t0 FDIC-R. the Dank, other financial institutions, or any 

other person or entity, including without limitation any such c laims acquired by FDIC-R as 

successor in interest to the Rank or an y person or entity other than Bank; and 

b. against any person or entity not expressly released by the FDTC-R 

in this Agreement. 

2. Notw·ithstanding any other provision of this Agreement, nothing in this 

Agreement shall be construed or interpreted as limiting. wai\·ing, releasing, or compromising the 

jurisdiction and authority of the federal Deposit Insurance Corporatio n in the exercise of its 

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

enforcement or other proceedings seeking removal> prohi bition. or any other re lief it is 

authorized to seek pursuant to ils supervisory o r regulatory authority against any pt!rson. 

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3. Notvvithstanding any other provision of 1l1is Agreernent, this .A.grccnlcnt 

does not pu(l)ort to waive, or intend to wa ive. any c laims that could he brought by the United 

States through the Department of Justice. the United States Attorney's Orfice tor any federal 

judicial district, or any other department or agency of the United States as dct1ncd by I 8 O.S.C. § 

6. In addition. the FDIC-R specifically reserves the right to seek court-ordered restitution 

pursuant ro the relevant provi:si on:-; of the Victim and W itness Protection Act. I R C .S.C. §§ 3322 

and 3663, et. seq., if appropriate. 

SECTION TV: Waiver of Dividends and Proceeds from Litigation 

To the extent. if any, that Settling Defendants are or were shareholders of the ll<mk or its 

holding company and by virtue thereof are or may be entitled t.o a dividend, payment. or other 

distribution upon rl.!solution of the receive rs hip of the Bank or proceeds in any litigation that has 

been or could be brought against the United States based on or arising out of: in whole or in part. 

the closing of the Bank, or any alleged acts or omissions by the Federal Deposit Insurance 

Corporation, the FDIC-R, tht: United States government. or any agency or department of t.he 

United States government in connection with the Bank, its conservatorship, or receivership, 

Settli ng Defendants hereby knowingly assign to the FDlC-R any and all Iights, titles~ and interest 

in and to any and all such dividends. payments, or oLh~r distri butions. or proceeds. 

SECTION V: Representations and Acknowledgements 

A. Author z.~d Sirmatories. All of the undersigned persons represent and w<:mant 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 Pllrty to each and t·vc:ry provision of 

this Agreement. This Agreement shall be binding upon and inure to the benefit of the 

undersign~d Parties and the ir respective heirs. executors. trustees. administrators, representatives, 

succcs~ors. and assigns. 

1:3. Adyice of C~unscl. Each Pat1y hereby acknowkdgcs that he, she, or it has 

consulted with and obtained the advice of counsel prior to ~x ccu ing this Agreement, and that 

this Agreement has heen explained to that Pnrty by his or her counsel. 
SECTION VI: Reasonable Cooper ation 

A. The Parties agree to cooperate in good \ith to effec tuate all the terms and 

conditicn1s of this Agreement, including doing, or causing their agents and attorneys to do. 

whatever is reasonably necessary to effectuate the signing. ddivery, execution. liling, recordi ng. 

and entry of any documents necessary to perform the tem1s of this Agreement. 

SECTION VII: Other Matters 

A. No_t\_d.mission of Liability. The undersigned Parties each acknowledge and ugree 

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

daims and dd~nses, that t his 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 hy or against any Party except to enforce its terms. 

R. Executi_on in Counterparts. This Agreement may be executed in counterparts hy 

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

h~ linal Agreement, as if one document had been signed hy all Parties; and each such 

coumerpart, upon execution and ddivery, shall be deemed a complete origina l. binding the 

Parties subscribed thereto upon the execution by all Panies to this Agreement. 

C. Choice of Law. This Agrt:emcnt shall he interprctcdc construed and enforced 

according to applicable !Cdcral lm-v, or in its absence, thl! la\vs of the State of Arizona. 

D. Notices. Any notic.es required hereunder shall be sent hy registered maiL first 

class, return recei pt requested, and by ema iL to the tollowing: 

If to the r.orc-R: David L Allen 

.laburg Wilk LLP 

3200 North Central J\. venue, 20th Flour 

Pho~ni . A7 R50 12 

(b)(6) ____ ~········ -- ···························l -- -····· ······································· 

lfto the Settling Ddcndants: 

(b )(6) 

Ed Moomj ian 

Rusing Lopez & Lizardi, P.L.L.C. 

6363 !'lorth \v~m Road, Suite 15 1 

Tucson. Ariz.ona 85718 

- l--

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

agreement and understanding between and among the undersigned parties concerning 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 be waived, except in writing signed 

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

representative( s ). 

F. Titles and Captions. 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 Parties acknowledge that this Agreement 

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

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

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed 

hy each of them or their duly authorized representatives on the dates hereinafter subscribed. 

FEDERAL DEPOSIT INSURANCE CORPORATION 

AS RECEIVER FOR SUNRISE BANK OF ARIZONA 

(b )(6) ··/;,;I····I:ckl""t·•·• ·······························································s·········y·········:···················f··························································································· I na:te: -----1-H--'-~£~~--=<..:::_v-=--.L_...., • . 

TITLE: c..,Ollh ~tl 

PRINT NAME: s~VVlve.-\ 5 . Lv~'Z... 

GIBSON, NAKAMURA & ASSOCIATES, P.L.L.C. 

Date: _____ _ BY: ________________ ___ 

TITLE: ____________ _ 

PruNTNAME: ____________ _ 

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

agreement and understanding between and among the undersigned parties concerning 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 be waived, except in writing signed 

by the Parties bound thereby, or by their respective authori:r.ed attorney(s), or other 

representative( s ). 

F. Titles and Captions. 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 Pa1ties 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. 

lN 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: _____ _ 

I•'EDEIU.L DEPOSIT INSURANCE CORPORATION 

AS RECEIVER FOR SUNRISE BANK OF ARIZONA 

BY: ___________________________ __ 

TITLE: -------------------------------- PRINTNAME: __________ _ 

(b )(e) Date: -~~~t .................................. :~~O~AMURA §!, :1!!1!gCIA TES,1 P.L.L.C. 

TITLE: MavtB~----·-·---------­

PRINTNAME: ~T\1). 6tB~ 

7 
BROOK BILLINGS 

Date: ____ _ BY: ____________ __ 

PRINT NAME:-----------

KRISTEN BRA])Y 

Date: ____ _ BY: _____________________ _ 

PRINT NAME:----------

JOHN BRADY 

Date: ____ _ BY: _________________________ _ 

PRNT NAME: ____ _ 

8 
AD r. 3 0. 2 0 14 1 0 : 1 3 AM So r e o 

Date: ____ _ 

No. 5503 P. 2 

SCOTT D. GIBSON 

BY: ------------------------ PRINTNAME: __________ _ 

(b)(6) ····························uate:"'l/·~~bllt ···········································································By·:•························································································ 

~------~----~--------~--

PRINT NAME:____.............,;:;....;;;.;.................,...........:...;....;:...;...~........_---

KRISTEN BRADY 

Date: ____ _ BY: ________________ ~-

PRJNTNAME: ------------

JOHN BRADY 

Date: ____ _ BY: __________________________ _ 

PRINT NAME:------------

8 
SCOTT D. GIBSO~ 

Date: ____ _ BY: 

PRINT NAME: __ -· ---·-----------

BROOK BILLINGS 

Date: ____ _ BY: ______________ _ 

PRJNT NAME: ___ _