Securities and Exchange Commission v. Nadel et al

Filing 807

Unopposed MOTION to Approve Settlement re: YMCA Foundation of Sarasota, Inc. by Burton W. Wiand. (Attachments: #1 Exhibit A)(Morello, Gianluca)

S E T T L E M E N T AGREEMENT
WHEREAS, by orders dated January 21, 2009, June 3, 2009, January 19, 2010
and September 23, 2010, the Court in Securities & Exch. Comm'n v. Arthur Nadel. et al..
Case No. 8:09-cv-87-T-26TBM (M.D. Fla.) (the "SEC Receivership Action"), appointed
Burton W. Wiand as Receiver (the "Receiver") for Scoop Capital, LLC; Scoop
Management, Inc.; Scoop Real Estate, L.P.; Valhalla Investment Partners, L.P.; Valhalla
Management, Inc.; Victory IRA Fund, LTD; Victoiy Fund, LTD; Viking IRA Fund,
LLC; Viking Fund, LLC; and Viking Management, LLC and all of their subsidiaries,
successors, and assigns (collectively, the "Receivership Entities"); and
WHEREAS, the YMCA Foundation of Sarasota, Inc. (the "YMCA") submitted a
Proof of Claim Form, designed Claim No. 478 (the "Claim"), in the amount of
$1,111,111.40 (the "Claimed Funds") in the claims process estabhshed by the Receiver
and approved by the Court in the SEC Receivership Action; and
WHEREAS, the Receiver has not sued the YMCA but has claims against the
YMCA for the return of certain funds received directly or indirectly from or at the
direction of one or more of the Receivership Entities by the YMCA (the "Settled
Claims"); and
WHEREAS, the YMCA, without admitting liability, wishes to resolve these
matters amicably; and
WHEREAS, any resolution of this dispute by agreement of the Receiver and the
YMCA is subject to approval by the Court presiding over the SEC Receivership Action
(the "SEC Receivership Court");
NOW, THEREFORE, and subject to the approval ofthe SEC Receivership Court,
the YMCA has agreed to pay and the Receiver has agreed to accept the total sum of
1

$75,000.00 (the "Settlement Amount") in full settlement ofthe Settled Claims, to be paid
as follows: a first payment of $45,000.00 to be paid within 14 days after approval of this
settlement by the SEC Receivership Court; a second payment of $15,000.00 to be paid by
December 31,2012; and a third payment of $15,000.00 to be paid by December 31,2013.
Upon receipt and clearing of this fiiU settlement payment, the Receiver, on behalf
of the Receivership Entities and their employees, agents, representatives, beneficiaries,
and assigns, shall be deemed to have released and forever discharged the YMCA of and
from any and all claims asserted, or which could have been asserted against the YMCA,
as well as any and all other claims, demands, rights, promises, and obligations arising
from or related in any way to the YMCA's direct or indirect receipt of funds from
Receivership Entities, whether received as purported charitable contributions or as
investment returns relating to any product, fimd, entity, or venture established, operated,
or controlled by Arthur Nadel and Receivership Entities.
In further consideration of the release of claims described above, the YMCA
warrants that $138,426.50 is the sum of (1) the total amount of money or value the
YMCA received as purported investment distributions from Receivership Entities (i.e.,
$30,315.90) and (2) the total amount of money or value, directly or indirectly originating
from a Receivership Entity, the YMCA received as purported charitable contributions
that the YMCA retained and did not reinvest in a Receivership Entity (i.e., $108,110.60),
and the YMCA agrees to waive and does hereby waive any claim that it had, has, or
hereafter may have against the Receiver, and Receivership Entity, and/or the
Receivership Estate, including the Claim and any entitlement to the Claimed Funds.
The Receiver and the YMCA understand and agree that, subject to the approval of
the SEC Receivership Court, the payment of the aforesaid total sum and waiver of claims

is in full accord and satisfaction of and in compromise of disputed claims, and the
payment and waiver are not an admission of liability, which is expressly denied, but are
made for the purpose of terminating a dispute and avoiding litigation.
After execution of this Settlement Agreement by all parties, the Receiver will
promptly move the SEC Receivership Court for approval of this settlement.

To the

extent necessary, the YMCA agrees to assist the Receiver in seeking the SEC
Receivership Court's approval of this settlement and in effectuating waiver of the Claim.
The YMCA understands and agrees that each party shall bear its own individual costs and
attorney fees incurred in the resolution of this matter.
In the event the YMCA fails to make payment as provided by this Settlement
Agreement, the YMCA hereby consents to the immediate entry of a Judgment upon the
filing of an affidavit from the Receiver certifying failure of payment,

The YMCA

acknowledges and agrees that such Judgment will be for $138,426.50, as stated above,
less any payments, plus interest at the legal rate from the date of this agreement.
The Receiver and the YMCA agree this Settlement Agreement shall be govemed
by and be enforceable under Florida law in the United States District Court for the
Middle District of Florida, Tampa Division.
Counsel for the Receiver is expressly authorized to sign this agreement on behalf
of the Receiver. The Receiver and the YMCA also agree that electronically transmitted
copies of signature pages will have the full force and affect of original signed pages.
In witness whereof the parties have set their hands as of the dates indicated.

YMCA Foundation of Sar^ota, Inc.'

B u r t o n ^ . Wiand, as Receiver
ofthe Receivership Entities

/

3

^g^^
p "y
*

Date:

Date:

4