Securities and Exchange Commission v. Nadel et al

Filing 880

MOTION to Approve Settlement by Burton W. Wiand. (Attachments: #1 Exhibit Exhibit A - Settlement Agreement)(Lamont, Michael)

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 Coui-t 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; Victory Fund, LTD; Viking IRA Fund, LLC;
LLC;

Viking Fund,

Viking Management, LLC; Venice Jet Center, LLC; Tradewind, LLC; Laurel

Mountain Preserve, LLC; Laurel Preserve, LLC; Laurel Mountain Preserve Homeowners
Association, Inc.; Marguerite J. Nadel Revocable Trust UAD 8/2/07; Guy-Nadel Foundation,
Inc.; Lime Avenue Enterprises, LLC; A Victorian Garden Florist, LLC; Viking Oil & Gas,
LLC; Home Front Homes, LLC; and Traders Investment Club (collectively, the "Receivership
Entities"); and
WHEREAS, the Receiver sued Girls Incorporated of Sarasota County (the
"Defendant") in an action styled Burton W. Wiand, as Receiver v. Girls Incorporated of
Sarasota County. Case No. 8:12-cv-839-T-17MAP (M.D. Fla.) ("the Girls, Inc. Action"),
seeking the return of certain funds received from or at the direction of one or more of the
Receivership Entities and/or Arthur Nadel, Marguerite J. Nadel, Neil V. Moody, Sharon G.
Moody, and the Neil Moody Foundation, (collectively the "Intermediate Parties") by the
Defendant (the "Settled Claims"); and
WHEREAS, the Defendant, without admitting liability, wishes to resolve these matters
amicably; and

EXHIBIT A

"WHEREAS, any resolution of this action by agreement of the Receiver and the
Defendant is subject to approval by the Court presiding over the SEC Receivership
Action (the "SEC Receivership Court");
NOW, T H E R E F O R E , and subject to the approval of the SEC Receivership Court,
Defendant has agreed to pay, and the Receiver has agreed to accept, a total of $100,000 in full
settlement of the Settled Claims, to be paid as follows: a first payment of $10,000 to be paid
on or before July 2, 2012; and the remaining $90,000 to be paid in monthly installments from
October 1, 2012, through October 1, 2016, pursuant to the Note and amortization schedule
attached hereto as Exhibit I and incorporated by reference herein.
Upon receipt and clearing of this Ml settlement payment, the Receiver, on behalf of the
Receivership Entities, shall be deemed to have released and forever discharged Defendant of
and from any and all clauns which could have been asserted in the Girls Inc. Action, uicluding
but not limited to any and all other claims, demands, rights, promises, and obligations arising
from or related in any way to the Defendant receipt of monies from the Receivership Entities
and the Intermediate Parties.
In further consideration of the release of claims described above, Girls, Inc. represents
that hs business records reflect that defendant received $472,839.33 in charitable contributions
from the Guy-Nadel Foundation, Inc, and the Intermediate Parties,

Defendant agrees to

waive and does hereby waive any claim that it had, has, or hereafter may have against the
Receiver and/or the Receivership Estate.
The Receiver and Defendant 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

2

waiver are not an admission of liability, which is expressly denied, but are made for the
purpose of resolving this 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. I f the SEC Receivership
Court approves the settlement, following receipt and clearing of the payment called for above,
the Receiver will promptly move the Court to dismiss the Girls, Inc. Action with prejudice. To
the extent necessary, the Defendant agrees to assist the Receiver in seeking the SEC
Receivership Court's approval of this settlement and following any such approval, in securing
the dismissal of the Girls, Inc, Action. The Defendant understands and agrees that each party
shall bear their own individual costs and attorney fees incurred in the resolution of this matter.
In the event the Defendant fails to make payment as provided by this Settlement
Agreement, the Defendant hereby consents to the immediate entry of a Judgment upon the
lihng of an affidavit from the Receiver certifyhig failure of payment.

The Defendant

acknowledges and agrees that such Judgment will be for the total amount of money the
Defendant received from the Receivership Entities (i.e. $472,839.33) as stated above, less any
payments, plus interest at the legal rate from the date of this agreement.
The Receiver and Defendant agree this Settlement Agreement shall be governed by
and be enforceable under Florida law in the United States District Court for the Middle District
of Florida, Tampa Division,
The Receiver and Defendant also agree that electronically transmitted copies of
signature pages will have the full force and affect of original signed pages.

3

In witness whereof the parties have set their hands as of the dates indicated

Girls Inj/!orporated of Sarasota
Counti

Burton W. Wiand, as Receiver
of the Receivership Entities

Date:

Date:

4

PROMISSORY NOTE

$90,000.00

:J}jne. ;?9,2012

CREDITOR:

BURTON W. WIAND, AS COURT-APPOINTED R E C E I V E R

DEBTOR:

GIRLS, INC. OF SARASOTA COUNTY
201 S. Tuttle Ave.
Sarasota, F L 34237

F O R V A L U E R E C E I V E D , the undersigned ("Debtor") promises to pay to the order of
Burton W, Wiand, in his capacity as the Court-appointed Receiver in the action styled Securities
and Exchange Commission v, Arthur Nadel, et al. Case No: 8:09-cv-87-T-26TBM (together with
any Creditor of this Promissory Note, called "Creditor") at 3000 Bayport Drive, Suite 600,
Tampa, Florida 33607, or such other place as Creditor may designate in writing, the principal sum
of Ninety Thousand and zero/100 Dollars ($90,000,00), payable in lawful currency of the United
States of America on the dates and in the manner set forth below.
1.
Settlement Agreement.
Agreement dated as of Zto n^
reference.

Debtor and Creditor have entered into a Settlement
» 2012, the terms of which are incorporated herein by

2.
Interest. Interest shall accrue daily on the outstanding principal balance of this
Promissory Note (the "Note") at a rate that is equal to six percent (6%) per annum, simple interest,
until this Note is paid in hill,
3.
Payments and Maturity. Beginning on October 1,2012, and on the first day of each
subsequent month until October 1, 2016, Debtor shall pay to the Creditor the sum of Two Thousand
and Ninety Four Dollars and Forty-One Cents ($2,094.41), which amount includes principal and
interest. An amortization schedule of the payments due is attached hereto as Ejdiibit A, and
incorporated herein by reference. I f not sooner paid, all principal and interest owed under this Note
shall be due and payable in ftiU on October 1,2016.
4.
Prepayment. Debtor shall have the right and privilege to prepay all or any part of the
outstanding balance of this Note at any time and from time to time, vwthout premium or penalty.
5.
Waiver. Creditor shall not by any act or omission be deemed to waive any of its
rights or remedies hereunder at law or in equity, or as provided by statute, unless such waiver be
in writing, signed by Creditor, and then only to the extent specifically set forth therein. A waiver
of one event shall not be construed as a continuing waiver or as a bar to, or waiver of, such right
or remedy upon a subsequent event.
6.
Events of Default. The occurrence of any one or more of the following events
shall constitute an "Event of Default" under this Note:
(a)
the failure of Debtor to pay any sum due under this Note when due,
whether by demand or otherwise, which failure has not been cured within five (5) days
after written notice thereof from the Creditor to the Debtor;

(b)
the failure of Debtor to perform, observe or comply in any material respect
with its obligations under this Note within thirty (30) days of receiving notice of such
default; or
(c)
there shall have been instituted proceedings, whether voluntary or
involuntary, or the taking of any corporate action in furtherance of, or the entry of any
order or decree of a court of competent jurisdiction over the Debtor with respect to any of
the following (any such proceeding, an "Insolvency Proceeding"):
(i)
bankruptcy,
insolvency
or
reorganization,
readjustment,
arrangement, composition or similar relief under federal or state bankruptcy or
insolvency statutes or related laws in respect of the Debtor;
(ii)
appointment of receiver, liquidator, trustee or assignee in
bankruptcy or insolvency as to the Debtor or any guarantor of this Note or a
substantial part of the Debtor's property; or
(iii)
any assignment by the Debtor of any of its assets for the benefit of
creditors, or the winding up or liquidation of the affairs of the Debtor, or the
admission of the Debtor in writing of its inability to pay its debts as they become
due;
provided, that in the case of any Insolvency Proceeding, such proceeding or case shall continue
undismissed or unstayed and in effect for a period of forty five (45) days.
7.
Default. Upon the occmxence of an Event of Default hereunder, the Creditor shall
have the right to: (a) declai-e the entire outstanding balance of principal and interest to be
immediately due and payable, and the same shall thereupon become immediately due and payable
without presentment, demand or notice; and (b) exercise any or all rights, powers, and remedies now
or hereafter existing at law, in equity, by statute or otherwise.
8.
Expenses. Debtor promises to pay to Creditor on demand by Creditor, all costs and
expenses incurred by Creditor in connection with the collection and enforcement of this Note,
including, without limitation, reasonable attorneys' fees and expenses and all court costs.
9.
Transfer; Successors and Assigns. The terms and conditions of this Note shall
inure to the benefit of and be binding upon the respective successors and assigns of the Parties.
Notwithstanding the foregoing, the Debtor may not assign, pledge, or otherwise transfer this Note
without the prior written consent of Creditor, whose consent shaU not be unreasonably withheld;
provided that, however, the transferee designated by Debtor shall provide proof that it has the
wherewithal and ability to perform the Debtor's obligations set forth in this Note, and Debtor
agrees that Creditor shaU retain the sole and exclusive right to make such a determination.
10.
Applicable LawA^enue. This Note shall be interpreted and enforced in accordance
with the laws of the State of Florida without regard to any conflicts of law provisions or principles
thereof to the contrary. Debtor and Creditor hereby: (i) irrevocably consent to the exclusive
jurisdiction of, and venue in, the United States District Court, Middle District of Florida, Tampa
Division, in Hillsborough County in the State of Florida; and (ii) agree that all disputes and matters
whatsoever arising under, in connection with, or incident to this Note shall be exclusively litigated
as a summary proceeding in SECURITIES AND EXCHANGE COMMISSION V. ARTHUR

2

NADEL, ETAL, CASE NO: 8:09-CV-87-T-26TBMIN AND BEFORE THE UNITED STATES
DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION, in Hillsborough
County in the State of Florida, to the exclusion of the courts of any other state or country. EACH
OF DEBTOR AND CREDITOR WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH A N Y SUIT, ACTION OR PROCEEDING SEEKING ENFORCEMENT OF SUCH
PARTY'S RIGHTS UNDER THIS NOTE.
11.
Invalidity of Any Part. I f any provision or part of any provision of this Note shall
for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision (or any remaining part of any provision) of
this Note, and this Note shall be constioied as i f such invaUd, illegal or unenforceable provision
(or part thereof) had never been contained in this Note, but only to the extent of its invalidity,
illegality or unenforceability. In any event, if any such provision pertains to the repayment of the
indebtedness evidenced by this Note, then and in such event, at Creditor's option, the outstanding
principal, together with aU accrued and unpaid interest thereon, shall become immediately due
and payable.
12.
Miscellaneous. Each right, power, and remedy of Creditor as provided for in this
Note, or now or hereafter existing under any applicable law or otherwise, shall be cumulative and
concurrent and shall be in addition to every other right, power, or remedy provided for in this Note or
now or hereafter existing under applicable law, and the exercise or beginning of the exercise by
Creditor of any one or more of such rights, powers, or remedies shall not preclude the simultaneous
or later exercise by Creditor of any or all such other rights, powers, or remedies. No failui-e or delay
by Creditor to insist upon the strict performance of any term, condition, covenant, or agreement of
this Note, or to the exercise any right, power, or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, condition, covenant, or agi'eement or of any such breach, or
preclude Creditor from exercising any such right, power, or remedy at a later time or times. By
accepting payment after the due date of any amount payable under the terms of this Note, Creditor
shall not be deemed to waive the right either to require prompt payment when due of all other
amounts payable under the terms of this Note or to declare an Acceleration Event for the failure to
effect such prompt payment of any such other amount. No course of dealing or conduct shall be
effective to amend, modify, waive, release, or change any provisions of this Note. Debtor hereby
expressly waives presentment, demand, and protest, notice of demand, dishonor and nonpayment
of this Note, and all other notices or demands of any kind in connection with the delivery,
acceptance, performance, default or enforcement hereof, and hereby consents to any delays,
extensions of time, renewals, waivers or modifications that may be granted or consented to by the
Creditor hereof with respect to the time of payment or any other provision hereof, The captions
herein set forth are for convenience of reference only and shall not be deemed to define, limit, or
describe the scope or intent of this Note.
IN WITNESS WHEREOF, Debtor has caused this Note to be duly executed as of the date
first written above.
DEBTOR;

' 5 ^ INCJQF^AJIASOTA COUNTY
^ ^

kdM-h^ L.
Its: frcsfd^niBy:

201 S. Tuttle Ave.
Sarasota, F L 34237
3

Ff^nCO/e

•/•/-/'

Amortization Schedule
Due Date
October 1, 2012
November 1, 2012
December 1, 2012
January 1, 2013
February 1, 2013
March 1, 2013
April 1, 2013
May 1, 2013
June 1, 2013
July 1, 2013
August 1, 2013
September 1, 2013
October 1, 2013
November 1, 2013
December 1, 2013
January 1, 2014
February 1, 2014
March 1, 2014
April 1, 2014
May 1, 2014
June 1, 2014
July 1, 2014
August 1, 2014
September 1, 2014
October 1, 2014
November 1, 2014
December 1, 2014
January 1, 201S
February 1, 2015
March 1, 2015
April 1, 2015
May 1, 2015
June 1, 2015
July 1, 2015
August 1, 2015
September 1, 2015
October 1, 2015
November 1, 2015
December 1, 2015
January 1, 2016
February 1, 2016
March 1, 2016
April 1, 2016
May 1, 2016
June 1, 2016
July 1; 2016
August 1, 2016
September 1, 2016
October 1, 2016
Total

Payment
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094,41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094,41
$2,094.41
$2,094,41
$2,094,41
$2,094,41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094,41
$2,094.41
$2,094.41
$2,094,41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.41
$2,094.34

interest
$1,275,00
$445.90
$437.66
$429.38
$421.05
$412.68
$404.28
$395.83
$387.33
$378,80
$370.22
$361.60
$352.93
$344.23
$335,48
$326.68
$317.84
$308.96
$300.03
$291.06
$282.04
$272.98
$263.87
$254.72
$245.52
$236.28
$226.99
$217.65
$208.27
$198.84
$189.36
$179.83
$170.26
$160.64
$150.97
$141.25
$131,49
$121,67
$111.81
$101.90
$91.93
$81.92
$71.86
$61,75
$51.58
$41.37
$31.10
$20.79
$10.42

$102,626.02

$12,626.02

Exhibit A

Principal
$819,41
$1,648,51
$1,656.75
$1,665.03
$1,673.36
$1,681.73
$1,690.13
$1,698.58
$1,707.08
$1,715.61
$1,724.19
$1,732.81
$1,741.48
$1,750.18
$1,758.93
$1,767,73
$1,776,57
$1,785.45
$1,794,38
$1,803,35
$1,812.37
$1,821.43
$1,830.54
$1,839.69
$1,848.89
$1,858,13
$1,867.42
$1,876.76
$1,886.14
$1,895.57
$1,905.05
$1,914.58
$1,924.15
$1,933.77
' $1,943.44
$1,953.16
$1,962.92
$1,972.74
$1,982.60
$1,992.51
$2,002.48
$2,012.49
$2,022.55
$2,032.66
$2,042,83
$2,053.04
$2,063.31
$2,073.62
$2,083.92
$90,000.00

Balance
$89,180.59
$87,532.08
$85,875.33
$84,210.30
$82,536.94
$80,855.22
$79,165.08
$77,466,50
$75,759.42
$74,043.81
$72,319.62
$70,586.80
$68,845.33
$67,095.15
$65,336.21
$63,568,48
$61,791.91
$60,006.46
$58,212.09
$56,408.74
$54,596.37
$52,774,94
$50,944.41
$49,104.72
$47,255.83
$45,397.70
$43,530.28
$41,653.52
$39,767,38
$37,871.81
$35,966.76
$34,052.18
$32,128.03
$30,194.25
$28,250,82
$26,297.67
$24,334.74
$22,362,01
$20,379,41
$18,386,89
$16,384.42
$14,371,93
$12,349,38
$10,316,72
$8,273.89
$6,220,85
$4,157.54
$2,083.92
$0,00