Federal Trade Commission v. AMG Services, Inc. et al
Filing
1287
ORDER Granting 1281 Motion to Approve Settlement Agreement. IT IS ORDERED that the Settlement Agreement is hereby APPROVED. The Court shall retain jurisdiction over the interpretation and enforcement of the agreement. Signed by Judge Gloria M. Navarro on 3/16/2020. (Copies have been distributed pursuant to the NEF - JQC)
Case 2:12-cv-00536-GMN-VCF Document 1281 Filed 01/17/20 Page 1 of 5
1 Abran E. Vigil (NV 7548)
vigila@ballardspahr.com
2 BALLARD SPAHR LLP
1980 Festival Plaza Drive, Suite 900
3 Las Vegas, NV 89135-2958
Tel.: 702-471-7000
4 Fax: 702-471-7070
5 Logan D. Smith (Pro Hac Vice)
lsmith@mcnamarallp.com
6 Sanjay Bhandari (Pro Hac Vice)
sbhandari@mcnamarallp.com
7 Edward Chang (NV 11783)
echang@mcnamarallp.com
8 MCNAMARA SMITH LLP
655 West Broadway, Suite 1600
9 San Diego, California 92101
Tel.: 619-269-0400
10 Fax: 619-269-0401
Attorneys for Court-Appointed Monitor,
11 Thomas W. McNamara
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
14 FEDERAL TRADE COMMISSION,
Plaintiff,
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v.
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AMG SERVICES, INC., et al.,
Defendants, and
18 PARK 269 LLC, et al.,
Relief Defendants.
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Case No. 2:12-cv-00536-GMN-VCF
JOINT MOTION TO APPROVE
SETTLEMENT AGREEMENT WITH
SUNWAY HOTEL GROUP, INC.;
SUNWAY HOTEL MANAGEMENT, INC.;
BARTLESVILLE SW HOTEL, INC.;
BARTLESVILLE HOTEL, LLC; AND
BARTLESVILLE HOTEL DEC, LLC
Case 2:12-cv-00536-GMN-VCF Document 1281 Filed 01/17/20 Page 2 of 5
The Court-appointed monitor Thomas W. McNamara (the “Monitor”) and non-parties
1
2 Sunway Hotel Group, Inc.; Sunway Hotel Management, Inc.; Bartlesville SW Hotel, Inc.;
3 Bartlesville Hotel, LLC; and Bartlesville Hotel DEC, LLC (collectively, the “Sunway Parties”)
4 jointly move the Court to approve the proposed Settlement Agreement, attached hereto as
5 Exhibit 1, relating to interests in a hotel in Bartlesville, Oklahoma (the “Bartlesville Hotel”).
The Sunway Parties operate and manage the Bartlesville Hotel. Scott Tucker and certain
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7 Monitor Entities obtained economic and ownership interests in the Bartlesville Hotel in 2013, as
8 the result of the settlement of a dispute between Mr. Tucker and the Sunway Parties. The
9 Monitor contends Sunway Hotel Management, Inc. paid itself excessive fees in operating and
10 managing the hotel to the detriment of Mr. Tucker and Monitor Entities. The Monitor has
11 engaged in extensive pre-litigation settlement discussions with the Sunway Parties resulting in
12 the proposed Settlement Agreement attached as Exhibit 1. Provided the Court approves the
13 Settlement Agreement, the Sunway Parties will pay $425,000 to the Monitor in exchange for
14 resolving any disputes regarding the management of the Bartlesville Hotel and transferring all of
15 the Monitorship Estate’s interest in the hotel to the Sunway Parties.
The Plaintiff in this case, the Federal Trade Commission, has been provided the proposed
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17 Settlement Agreement and does not oppose this motion. Scott Tucker is unrepresented in this
18 case and is presently incarcerated.1
If the Court is satisfied with the Settlement Agreement, the Monitor and the Sunway
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20 Parties ask for an order approving the Settlement Agreement and that the Court retain
21 jurisdiction to interpret and enforce the agreement. If the Court wishes to further inquire about
22 the matter prior to issuing an order, the Monitor asks that the Court set this motion for a hearing
23 or otherwise instruct the Monitor to file a report as to any issue where further information is
24 needed.
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1
Counsel for defendants Scott Tucker, AMG Capital Management, LLC, Level 5 Motorsports,
26 LLC, Black Creek Capital Corporation, and Broadmoor Capital Partners (collectively, “Tucker
Defendants”) has withdrawn from the representation. As a result of his criminal conviction in
27 the Southern District of New York, Mr. Tucker was sentenced to prison and remanded to
28 custody. Having previously inquired of counsel, we believe Mr. Tucker is not presently
represented in this action, and therefore we intend to serve this motion directly on him. We shall
send Mr. Tucker a copy of this motion via mail at his present Bureau of Prisons facility.
1
Case 2:12-cv-00536-GMN-VCF Document 1281 Filed 01/17/20 Page 3 of 5
1
Accordingly, the Monitor and the Sunway Parties hereby jointly ask that the Court issue
2 an order approving the Settlement Agreement.
3 Dated: January 17, 2020
4 Respectfully submitted by:
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Ballard Spahr LLP
2029 Century Park East, Suite 800
Los Angeles, California 90067-2909
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/s/ Edward Chang
Edward Chang (NV 11783)
echang@mcnamarallp.com
Logan D. Smith (Pro Hac Vice)
lsmith@mcnamarallp.com
Sanjay Bhandari (Pro Hac Vice)
sbhandari@mcnamarallp.com
MCNAMARA SMITH LLP
655 West Broadway, Suite 1600
San Diego, California 92101
Tel.: 619-269-0400
Fax: 619-269-0401
/s/ Michael B. Shteamer
Michael B. Shteamer
POLSINELLI PC
900 W. 48th Place, Suite 900
Kansas City, MO 64112
Tel.: 816-374-058
Fax: 816-753-1536
Email: mshteamer@polsinelli.com
Attorneys for Sunway Hotel Group, Inc.,
Sunway Hotel Management, Inc., Bartlesville
SW Hotel, Inc., Bartlesville Hotel LLC, and
Bartlesville Hotel DEC, LLC
Abran E. Vigil (NV 7548)
vigila@ballardspahr.com
BALLARD SPAHR LLP
1980 Festival Plaza Drive, Suite 900
Las Vegas, NV 89135-2958
Tel.: 702-471-7000
Fax: 702-471-7070
Attorneys for Court-Appointed Monitor,
Thomas W. McNamara
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Case 2:12-cv-00536-GMN-VCF Document 1281 Filed 01/17/20 Page 4 of 5
1
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of January, 2020, pursuant to Fed. R. Civ. P. 5(b), I
served via CM/ECF or delivered by email and mailing in the U.S. Mail a true and correct copy of
3 the foregoing JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT WITH
SUNWAY HOTEL GROUP, INC.; SUNWAY HOTEL MANAGEMENT, INC.;
4 BARTLESVILLE SW HOTEL, INC.; BARTLESVILLE HOTEL, LLC; AND
BARTLESVILLE HOTEL DEC, LLC, postage prepaid and addressed to the following:
5
VIA CM/ECF
VIA CM/ECF
Jeremy R. Vanderloop
6 Blaine T. Welsh
U.S. Attorney’s Office
Madden Vanderloop, S.C.
116 S. Main Street
7 501 Las Vegas Boulevard South, Suite 1100
Las Vegas, NV 89101
Mayville, WI 53050
Tel.: 920-387-2300
8 Tel.: 702-388-6336
Email: Blaine.Welsh@usdoj.gov
Fax: 920-387-4428
Email: jvanderloop@madvanlaw.com
9 Attorneys for FTC
Attorneys for Interested Parties ETS Ventures,
LLC; El Dorado Trailer Sales; and Dale E.
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Becker
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VIA CM/ECF
VIA CM/ECF
Martin L. Welsh
12 Kimberly L. Nelson
Federal Trade Commission
Law Office of Hayes & Welsh
199 N. Arroyo Grande Blvd.
13 600 Pennsylvania Ave. NW
Mail Stop CC-9528
Henderson, NV 89074
Tel.: 702-434-3444
14 Washington, DC 20580
Tel.: 202-326-3304
Fax: 702-434-3739
Email: mwelsh@lvlaw.com
15 Fax: 202-326-3197
Email: knelson@ftc.gov
Attorneys for Interested Parties ETS Ventures,
LLC; El Dorado Trailer Sales; and Dale E.
16 Attorneys for FTC
Becker
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VIA CM/ECF
VIA CM/ECF
Nicole Ducheneaux
18 Paul C. Ray
Paul C. Ray, Chtd.
Fredericks Peebles & Morgan LLP
3610 North 163rd Plaza
19 8670 West Cheyenne Avenue, Suite 130
Las Vegas, NV 89129
Omaha, NE 68116
Tel.: 402-333-4053
20 Tel.: 702-823-2292
Fax: 702- 823-2384
Fax: 402-333-4761
Email: nducheneaux@ndnlaw.com
21 Email: paulcraylaw@gmail.com
Attorneys for AMG Capital Management, LLC; Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
22 Level 5 Motorsports, LLC; Black Creek
Capital Corporation; Broadmoor Capital
23 Partners, LLC; Scott A. Tucker; Park 269 LLC
2
24 VIA CM/ECF
Francis J. Nyhan
25 Fredericks Peebles & Morgan LLP
2020 L Street, Ste. 250
26 Sacramento, CA 95811
Tel.: 916-441-2700
27 Fax: 916-441-2067
Email: jnyhan@ndnlaw.com
28 Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
VIA CM/ECF
Joshua M. Dickey
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148-1302
Tel.: 702-562-8820
Fax: 702-562-8821
Email: jdickey@baileykennedy.com
Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
Case 2:12-cv-00536-GMN-VCF Document 1281 Filed 01/17/20 Page 5 of 5
1 VIA CM/ECF
Victoria W. Ni
2 Public Justice, PC
475 14th Street, Suite 650
3 Oakland, CA 94612-1949
Tel.: 510-622-8150
4 Fax: 510-622-8155
Email: vni@publicjustice.net
5 Attorneys for Intervenor Americans for
Financial Reform
6
VIA EMAIL
7 Kim Tucker
7118 Village Drive
8 Prairie Village, KS 66208
kim@kimtucker.net
9 Pro Se
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/s/ Edward Chang
11 Edward Chang
Attorneys for the Court-Appointed Monitor,
12 Thomas W. McNamara
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VIA CM/ECF
Craig B. Friedberg
Law Offices of Craig B. Friedberg
4760 South Pecos Road, Suite 103
Las Vegas, NV 89121
Tel.: 702-435-7968
Fax: 702-946-0887
Email: attcbf@cox.net
Attorneys for Intervenor Americans for
Financial Reform
VIA U.S. MAIL
Leavenworth Detention Center
Attn: Scott Tucker (RN 06133-045)
100 Highway Terrace
Leavenworth, KS 66048
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 1 of 27
EXHIBIT INDEX
1
2 Exhibit
3
1
Page
Settlement Agreement and Release of Claims ................................................................. 1
4
5
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Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 2 of 27
EXHIBIT 1
Settlement Agreement and Release of Claims
EXHIBIT 1
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 3 of 27
SETTLEMENT AGREEMENT AND
RELEASE OF CLAIMS
This SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS (the "Agreement") is
made and entered into by and between: (1) Bartlesville Hotel, LLC ("Bartlesville Hotel"),
Bartlesville SW Hotel, Inc. ("Bartlesville SW Hotel"), Bartlesville DEC, LLC ("Bartlesville
DEC"), Sunway Hotel Group, Inc. ("Sunway Hotel Group"), and Sunway Hotel Management,
Inc. ("Sunway Hotel Management") (collectively the "Sunway Parties"); and (2) Thomas W.
McNamara, in his capacity as a Court-appointed monitor in the below-defined Litigation (the
"Monitor"). For the purposes of this Agreement, the Sunway Parties and the Monitor are each
referred to individually as a "Party" and collectively as the "Parties."
RECITALS
A.
Whereas, on or about April 2, 2012, the Federal Trade Commission filed suit in
litigation entitled Federal Trade Commission v. AMG Services, Inc., et al., D. Nev. Case No. 2:12cv-00536-GMN-VCF (the "Litigation");
B.
Whereas, the court hearing the Litigation is referred to herein as the "Court";
C.
Whereas, the Monitor was appointed as Monitor over the Monitorship Estate
pursuant to the Order Appointing Monitor and Freezing Assets, ECF No. 1099 ("Order Appointing
Monitor");
D.
Whereas, the estates of the Monitorship Estate constitutes all of Scott Tucker's,
Kim Tucker's and the Monitor Entities' Assets, wherever they may be located, in whosever
possession they may be found, whether owned directly or indirectly, except as excluded in the
Order Appointing Monitor (collectively, the "Monitorship Estate");
E.
Whereas, the entities subject to the monitorship include AMG Capital
Management, LLC, Level 5 Motorsports, LLC, Black Creek Capital Corporation, Broadmoor
Capital Partners, LLC, Park 269, LLC, BA Services LLC, CS Capital LLC, DF Services Corp.,
DFTW Consolidated [UC] LLC, Impact BP LLC, Level 5 Apparel LLC, Level 5 Capital Partners
LLC, Level 5 Eyewear LLC, Level 5 Scientific LLC, NM Service Corp. (f/k/a/ National Money
Service), PSB Services LLC, Real Estate Capital LLC (f/k/a/ Rehab Capital I, LLC), Sentient
Technologies, ST Capital LLC, Westfund LLC, Eclipse Renewables Holdings LLC, Scott Tucker
Declaration of Trust, dated February 20, 2015, West Race Cars, LLC, and Level 5 Management
LLC and their successors, assigns, affiliates, and subsidiaries ("Monitor Entities");
F.
Whereas, the terms "Asset" or "Assets" as used herein means assets disclosed in
each "Federal Trade Commission Financial Statement oflndividual Defendant" or "Federal Trade
Commission Financial Statement of Corporate Defendant" of Scott A. Tucker, AMG Capital
Management, LLC, Level 5 Motorsports, LLC, Black Creek Capital Corporation, Broadmoor
Capital Partners, LLC, Kim Tucker, and Park 259, LLC, any legal or equitable interest in, right to,
or claim to, any real, personal, or intellectual property wherever located, including, but not limited
to, chattel, goods, instruments, equipment, fixtures, general intangibles, effects, leaseholds,
Settlement Agreement
Sunway Parties
Page 1of10
71681084.l
EXHIBIT 1
Page 1
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 4 of 27
contracts, mail or other deliveries, shares of stock, futures, securities, partnership interests,
inventory, checks, notes, accounts, credits, receivables, cash or currency, trusts, including but not
limited to asset protection trusts and trusts held for the benefit of a Defendant, and reserve funds
or other accounts associated with any payments processed on behalf of any Defendant, including,
but not limited to, such reserve funds held by a payment processor, credit card processor, or bank,
regardless of when any Defendant acquired such interest, right, or claim;
G.
Whereas, on November 30, 2013, Bartlesville DEC, LLC, Donald E. Culbertson,
The DEC Trust UTA January 23, 2012, and Donald E. Culbertson Revocable Trust UTA
January 1, 1998, as amended (collectively, "Assignors") each executed an Assignment of
Economic Interest in favor ofWestfund LLC transferring certain profits and distributable earnings
of Bartlesville Hotel, LLC to Westfund LLC;
H.
Whereas, on June 10, 2010, Bartlesville Hotel, LLC and Bartlesville SW Hotel, Inc.
entered a Day-to-Day Management Agreement and Bartlesville SW Hotel, Inc. and Sunway Hotel
Management, Inc. entered a Day-to-Day Management Agreement (collectively, "Management
Agreements") for the Hilton Garden Inn located in Bartlesville, Oklahoma (the "Property");
I.
Whereas, the Management Agreements required, among other things, management
fees payable to Sunway Hotel Management, Inc. to "[s]upervise and manage" the Property in
exchange for compensation of 5% of Gross Income (with a minimum of $5,000 per month),
reimbursement of out-of-pocket expenses, and an accounting fee of $2,500 per month;
J.
Whereas, beginning in October 2013, Sunway Hotel Management, Inc. paid itself
a "restaurant/bar oversight fee" of $6, 100 per month and received a total of $274,500 from October
2013 to July2017;
K.
Whereas, the Monitor contends that the $274,500 that Sunway Hotel Management,
Inc. paid itself for the "restaurant/bar oversight fees" were duties it was already required to perform
and the $274,500 should have been distributed to Westfund LLC pursuant to the Assignors'
Assignment of Economic Interest (the "Sunway Dispute"), which Sunway Hotel Management,
Inc. disputes;
L.
Whereas, between August 2008 and October 2010, Scott Tucker, Oro Valley Hotel
Holdings, LLC, an entity owned by Scott Tucker, Westfund LLC and Black Creek Capital
Corporation invested in the Property and in addition in two hotel developments, Forum Express
located in Florida and Oro Valley located in Arizona, with Donald E. Culbertson, Sunway Hotel
Group, Inc., Sunway Hotel Management, Inc., Oro Valley Sunway, LLC, Oro Valley DEC, LLC,
Oro I SW Hotel, Inc., Forum Express, LLC, and Forum SW Hotel, Inc. that were not completed
(collectively the "Hotel Projects");
M.
Whereas, Bartlesville DEC (assignee of the Donald E. Culbertson Trust UTA
January 1, 1998) and Bartlesville Hotel Holdings, LLC, a Nevada limited liability company
("Bartlesville Holdings") which is an Asset of the Monitorship Estate are the sole members of
Bartlesville Hotel and each of those members entered into the Second Amended and Restated
Operating Agreement of Bartlesville Hotel, LLC which entity owns the Property; and
Settlement Agreement
Sunway Parties
Page 2 oflO
71681084.1
EXHIBIT 1
Page 2
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 5 of 27
N.
Whereas, the Parties engaged in settlement discussions and now desire to avoid the
risk, inconvenience, and expense of litigation; the Parties have therefore agreed to fully and fairly
resolve the Sunway Dispute, any disputes regarding the Hotel Projects or the Property, and any
dispute regarding Bartlesville Holdings (hereinafter collectively referred to as the "Released
Claims") that the Parties had in the past against each other arising prior to the Effective Date
hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual promises,
covenants, and undertakings contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
1.
Recitals
The aforementioned Recitals are incorporated into this Agreement as if set forth fully
herein.
2.
Submission to the Court
The Parties shall submit this Agreement for Court approval after execution by all parties
by submitting the Joint Motion and Proposed Order attached hereto as Exhibit A. In the event that
the court denies approval of this Agreement, the Agreement shall be null and void. In the event
the Court approves the Agreement, the date of such approval shall be the "Effective Date."
3.
The Settlement
a.
The Sunway Parties shall pay to the Monitor a total of $425 ,000 no later than seven
business days after the Effective Date; and
b.
The Monitor shall assign the Economic Interest currently held by Westfund to the
Sunway Parties no later than seven business days after the Effective Date by executing the
Omnibus Assignment attached hereto as Exhibit B. Further, Monitor shall assign the fifty-five
percent (55%) membership interest of Bartlesville Holdings to Bartlesville DEC no later than
seven (7) business days after the Effective Date by executing the Omnibus Assignment attached
hereto as Exhibit C.
4.
Mutual General Release and Waiver
a.
As of the Effective Date, the Monitor, on behalf of the Monitor Entities and the
Monitorship Estate, hereby agrees to release and forever discharge the Sunway Parties and their
attorneys from all liabilities, causes of action, charges, complaints, suits, claims, obligations, costs,
losses, damages, rights, judgments, attorneys' fees, expenses, bonds, bills, penalties, fines, and all
other legal responsibilities of any form whatsoever, whether known or unknown, whether presently
existing or arising in the future, whether suspected or unsuspected, whether fixed or contingent,
Settlement Agreement
Sunway Parties
Page 3of10
71681084.1
EXHIBIT 1
Page 3
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 6 of 27
including those arising under any theory oflaw, whether common, constitutional, statutory or other
of any jurisdiction, foreign or domestic, whether in law or in equity, which they had or may claim
to have against any of them, including, without limitation, those arising out of or relating to: (i)
the Sunway Dispute; (ii) the Hotel Projects; (iii) the Released Claims; (iv) any other matters
between the Sunway Parties and the Monitorship Estate and/or the Monitor Entities; and/or (v)
any costs, attorneys' fees or expenses incurred in connection with the subject matter hereof prior
to the Effective Date (collectively, the "Monitor Released Claims").
b.
As of the Effective Date, the provisions of which survive this general release and
waiver, the Sunway Parties hereby agree to release and forever discharge the Monitor, the
Monitorship Estate, the Monitor Entities and their attorneys from all liabilities, causes of action,
charges, complaints, suits, claims, obligations, costs, losses, damages, rights, judgments,
attorneys' fees, expenses, bonds, bills, penalties, fines, and all other legal responsibilities of any
form whatsoever, whether known or unknown, whether presently existing or arising in the future,
whether suspected or unsuspected, whether fixed or contingent, including those arising under any
theory of law, whether common, constitutional, statutory or other of any jurisdiction, foreign or
domestic, whether in law or in equity, which they had or may claim to have against any of them,
including, without limitation, those arising out of or relating to: (i) the Sunway Dispute; (ii) the
Hotel Projects; (iii) the Released Claims; (iv) any other matters between the Sunway Parties and
the Monitorship Estate; and/or (v) any costs, attorneys' fees or expenses incurred in connection
with the subject matter hereof prior to the Effective Date (collectively, the "Sunway Released
Claims").
c.
As of the Effective Date, and except as expressly set forth in this Agreement, the
Parties hereby expressly and knowingly waive and relinquish any and all rights that they have or
might have relating to the Monitor Released Claims and/or the Sunway Released Claims under
California Civil Code§ 1542 (and under other statutes or common-law principles of similar effect)
which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
d.
Notwithstanding any other provision herein, the releases stated herein shall not
include any claims by any Party against any other person or entity not expressly identified in the
releases.
5.
Representations and Warranties
a.
The Sunway Parties represent and warrant to the Monitor that the Sunway Parties'
documents and information provided to the Monitor prior to the Effective Date were, taken as a
Settlement Agreement
Sunway Parties
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EXHIBIT 1
Page 4
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 7 of 27
whole in all material respects true, accurate, correct, and complete at the time such disclosures
were made. The Sunway Parties further represent and warrant to the Monitor that they are not
currently in possession or control of any monies or funds attributable to Monitor Entities and the
Hotel Projects (except for the Property) are no longer active and were terminated before November
30, 2013.
b.
If the Court finds that the Sunway Parties committed a material misrepresentation
or om1ss10n, it is agreed that, notwithstanding the releases stated in Paragraph 4, and
notwithstanding any other provision of this Agreement, the Monitor may request that the Court
hold the Sunway Parties in civil contempt. Should the Monitor make such a request, and should
the Court determine that such a material misrepresentation or omission was made, the Court shall
enter a finding of civil contempt against the Sunway Parties in favor of the Monitor.
6.
No Admission of Fault or Liability
It is understood and agreed that this Agreement and the performance of other obligations
herein are for the sole purpose of compromising the Monitor Released Claims and the Sunway
Released Claims, and that this Agreement (including any acknowledgments in the above recitals),
shall not be construed as an admission of liability or an acknowledgement of facts by any Party,
with liability being expressly denied by each Party.
7.
Integration Clause
This Agreement contains the entire agreement of the Parties and supersedes any and all
prior, written or oral, agreements among them concerning the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written, among the Parties
relating to the subject matter of this Agreement that are not fully expressed herein.
8.
Consultation with Counsel
The Parties represent and warrant that they have had an opportunity to present counsel of
their choice with this Agreement, that, if they elected to have counsel, such counsel has had the
opportunity to review this Agreement, and that they are executing this Agreement of their own
free will after having received advice from counsel regarding execution of this Agreement or after
having had the opportunity to seek such advice.
9.
Choice of Law, Consent to Jurisdiction, and Venue
This Agreement shall be governed by and interpreted and construed pursuant to the laws
of the State of Nevada, without giving effect to any conflicts of law principle. In the event of a
dispute regarding this Agreement, the Parties hereby consent to the exclusive jurisdiction and
venue of the U.S. District Court for the District of Nevada, and specifically the Court having
jurisdiction over the Litigation, which jurisdiction shall survive termination of the Litigation.
Settlement Agreement
Sunway Parties
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EXHIBIT 1
Page 5
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 8 of 27
10.
Attorneys' Fees
In the event that any action or other proceeding is taken to enforce the terms of this
Agreement, the prevailing party shall be entitled to recover, in addition to other damages or
remedies, its reasonable attorneys' fees, court costs, and other costs and expenses reasonably
incurred in connection therewith, including but not limited to any reasonable attorneys' fees, court
costs and other costs and expenses incurred in connection with seeking to recover the attorneys'
fees, court costs and other costs and expenses of enforcement provided for by this paragraph.
11.
Severability
If any one or more of the provisions of this Agreement should be ruled wholly or partly
invalid or unenforceable by a court or other government body of competent jurisdiction, then: (i)
the validity and enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable shall be unaffected; (ii) the effect of the ruling shall be limited to the jurisdiction of
the court or other government body making the ruling; (iii) the provision(s) held wholly or partly
invalid or unenforceable shall be deemed amended, and the court or other government body is
authorized to reform the provision(s), to the minimum extent necessary to render them valid and
enforceable in conformance with the Parties' intent as manifested herein; and (iv) if the ruling
and/or the controlling principle of law or equity leading to the ruling is subsequently overruled,
modified, or amended by legislature, judicial, or administrative action, then the provision(s) in
question as originally set forth in this Agreement shall be deemed valid and enforceable to the
maximum extent permitted by the new controlling principle of law or equity.
12.
No Waiver
The failure of any Party to insist upon compliance with any of the provisions of this
Agreement or the waiver thereof, in any instance, shall not be construed as a general waiver or
relinquishment by such Party of any other provision of this Agreement.
13.
Modification and Amendment
This Agreement may not be waived, altered, amended or repealed, in whole or in part,
except upon written agreement executed by the Party or Parties against which enforcement is
sought.
14.
Agreement Obligates, Extends, and Inures
The provisions of this Agreement shall be binding upon each of the Parties and each of the
Parties' partners, affiliates, agents, principals, members, shareholders, managers, officers,
employees, parents, subsidiaries, directors, trustees, successors, assigns, attorneys and, if any, and
upon those who may assume any or all of the above described capacities subsequent to the
Effective Date. The provisions of this Agreement shall inure to the benefit of each of the Parties
and each of the Parties' partners, affiliates, agents, principals, members, shareholders, managers,
officers, employees, parents, subsidiaries, directors, trustees, successors, assigns, attorneys and, if
any, and upon those who may assume any or all of the above described capacities subsequent to
Settlement Agreement
Sunway Parties
Page 6 oflO
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EXHIBIT 1
Page 6
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 9 of 27
the Effective Date. The Monitor Entities are intended third party beneficiaries of the releases set
forth in Paragraph 4(a) and 4(b) respectively. The Monitor hereby represents and warrants that
upon the Court's approval of this Agreement, the Monitor has the requisite authority to bind the
Monitorship Estate, the Monitor Entities and the Assets to this Agreement.
15.
No Reliance
Each of the Parties represents and warrants that, except for the representations and
warranties specifically set forth in this Agreement, in executing this Agreement, each Party does
not rely, and has not relied, on any representation or statement made by any other Party to this
Agreement, on any representation or statement made by anyone acting on behalf of any Party to
this Agreement, or any representation or statement made by any other person.
16.
No Assignment or Transfer of Action
Each Party represents and warrants that: (i) such Party owns the claims released hereby;
(ii) no other person or entity has any interest in such claims; (iii) it has not sold, assigned, conveyed
or otherwise transferred any such claim; and (iv) it has the sole right to settle and release such
claims. The undersigned represent and warrant that to the best of their information and belief, and
except as expressly set forth in this Agreement, they have no knowledge of any claims held by one
against the other that are not released hereby.
17.
Each Party to Bear Its Own Attorneys' Fees and Costs
Except as expressly provided for herein, each Party shall bear its own attorneys' fees and
costs incurred in relation to this Agreement and any litigation and/or negotiations prior to the
Effective Date.
18.
Multiple Counterparts
This Agreement may be executed in counterparts, each of which may be executed and
delivered via facsimile or PDF electronic delivery with the same validity as if it were an ink-signed
document and each of which shall be effective and binding on the Parties as of the Effective Date.
Each such counterpart shall be deemed an original and, when taken together with other signed
counterparts, shall constitute one and the same Agreement.
19.
Authority of Signatories
Each of the Parties to this Agreement represents and warrants that such Party is authorized
to enter into this Agreement and that any required consents, authorizations or approvals have been
obtained.
20.
Construction
Each Party hereto has cooperated in the drafting and preparation of this Agreement. In any
construction to be made of this Agreement, the same shall not be construed against any Party on
Settlement Agreement
Sunway Parties
Page 7 oflO
71681084.1
EXHIBIT 1
Page 7
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 10 of 27
the ground that said Party drafted this Agreement. This Agreement shall be deemed to have been
executed and delivered within the State of Nevada, and the rights and obligations of the Parties
hereunder shall be construed and enforced in accordance with, and governed by, the laws of the
State of Nevada, in effect as of the Effective Date.
IN WITNESS WHEREOF the undersigned Parties do hereby execute this Agreement as
of the Effective Date.
SUNWAY HOTEL GROUP, INC.
SUNWAY HOTEL MANAGEMENT, INC.
BARTLESVILLE SW HOTEL, INC,
BARTLESVILLE HOTEL, LLC
iaM&~MdMJ
By:
Title~
BARTLESVILLE HOTEL DEC, LLC
Settlement Agreement
Sunway Parties
Page 8 of IO
71681084.l
EXHIBIT 1
Page 8
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 11 of 27
Settlement Agreement
Sunway Parties
Page 9 oflO
71681084.1
EXHIBIT 1
Page 9
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 12 of 27
BARTLESVILLE HOTEL HOLDINGS, LLC
By:
Title:
THOMAS W. McNAMARA, IN HIS CAPACITY AS THE COURT.APPOINTED MONITOR IN THE LITIGATION (THE "MONITOR")
Thomas W. McNamara
APPROVED AS TO FORM AND CONTENT:
POLSINELLI PC
By: Michael B. Shteamer, Esq.
Counsel for Sunway Hotel Group, Inc., Sunway Hotel Management, Inc.,
Bartlesville SW Hotel, Inc., Bartlesville Hotel, LLC, and Bartlesville
Hotel DEC, LLC
MCNAMARA SMITH LLP
By: Edward Chang, Esq.
Counsel for the Monitor
Settlement Agreement
Sunway Parties
Page 10 oflO
71681084.1
EXHIBIT 1
Page 10
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 13 of 27
BARTLESVILLE HOTEL HOLDINGS, LLC
By:
Title:
THOMAS W. MCNAMARA, IN HIS CAPACITY AS THE COURTAPPOINTED MONITOR IN THE LITIGATION (THE "MONITOR")
Thomas W. McNamara
APPROVED AS TO FORM AND CONTENT:
POLSINELLI PC
By: Michael B. Shteamer, Esq.
Counsel for Sunway Hotel Group, Inc., Sunway Hotel Management, Inc.,
Bartlesville SW Hotel, Inc., Bartlesville Hotel, LLC, and Bartlesville
Hotel DEC, LLC
McNAMARA SMITH LLP
By: Edward Chang, Esq.
Counsel for the Monitor
Settlement Agreement
Sunway Parties
Page 10of10
71681084.1
EXHIBIT 1
Page 11
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 14 of 27
EXHIBIT A
EXHIBIT 1
Page 12
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 15 of 27
1 Abran E. Vigil (NV 7548)
vigila@ballardspahr.com
2 BALLARD SPAHR LLP
1980 Festival Plaza Drive, Suite 900
3 Las Vegas, NV 89135-2958
Tel.: 702-471-7000
4 Fax: 702-471-7070
5 Logan D. Smith (Pro Hac Vice)
lsmith@mcnamarallp.com
6 Sanjay Bhandari (Pro Hac Vice)
sbhandari@mcnamarallp.com
7 Edward Chang (NV 11783)
echang@mcnamarallp.com
8 MCNAMARA SMITH LLP
655 West Broadway, Suite 1600
9 San Diego, California 92101
Tel.: 619-269-0400
10 Fax: 619-269-0401
Attorneys for Court-Appointed Monitor,
11 Thomas W. McNamara
12
UNITED STATES DISTRICT COURT
13
DISTRICT OF NEVADA
14 FEDERAL TRADE COMMISSION,
Plaintiff,
15
v.
16
17
AMG SERVICES, INC., et al.,
Defendants, and
18 PARK 269 LLC, et al.,
Relief Defendants.
19
Case No. 2:12-cv-00536-GMN-VCF
JOINT MOTION TO APPROVE
SETTLEMENT AGREEMENT WITH
SUNWAY HOTEL GROUP, INC.;
SUNWAY HOTEL MANAGEMENT, INC.;
BARTLESVILLE SW HOTEL, INC.;
BARTLESVILLE HOTEL, LLC; AND
BARTLESVILLE HOTEL DEC, LLC
20
21
22
23
24
25
26
27
28
EXHIBIT 1
Page 13
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 16 of 27
The Court-appointed monitor Thomas W. McNamara (the “Monitor”) and non-parties
1
2 Sunway Hotel Group, Inc.; Sunway Hotel Management, Inc.; Bartlesville SW Hotel, Inc.;
3 Bartlesville Hotel, LLC; and Bartlesville Hotel DEC, LLC (collectively, the “Sunway Parties”)
4 jointly move the Court to approve the proposed Settlement Agreement, attached hereto as
5 Exhibit 1, relating to interests in a hotel in Bartlesville, Oklahoma (the “Bartlesville Hotel”).
The Sunway Parties operate and manage the Bartlesville Hotel. Scott Tucker and certain
6
7 Monitor Entities obtained economic and ownership interests in the Bartlesville Hotel in 2013, as
8 the result of the settlement of a dispute between Mr. Tucker and the Sunway Parties. The
9 Monitor contends Sunway Hotel Management, Inc. paid itself excessive fees in operating and
10 managing the hotel to the detriment of Mr. Tucker and Monitor Entities. The Monitor has
11 engaged in extensive pre-litigation settlement discussions with the Sunway Parties resulting in
12 the proposed Settlement Agreement attached as Exhibit 1. Provided the Court approves the
13 Settlement Agreement, the Sunway Parties will pay $425,000 to the Monitor in exchange for
14 resolving any disputes regarding the management of the Bartlesville Hotel and transferring all of
15 the Monitorship Estate’s interest in the hotel to the Sunway Parties.
The Plaintiff in this case, the Federal Trade Commission, has been provided the proposed
16
17 Settlement Agreement and does not oppose this motion. Scott Tucker is unrepresented in this
18 case and is presently incarcerated.1
If the Court is satisfied with the Settlement Agreement, the Monitor and the Sunway
19
20 Parties ask for an order approving the Settlement Agreement and that the Court retain
21 jurisdiction to interpret and enforce the agreement. If the Court wishes to further inquire about
22 the matter prior to issuing an order, the Monitor asks that the Court set this motion for a hearing
23 or otherwise instruct the Monitor to file a report as to any issue where further information is
24 needed.
25
1
Counsel for defendants Scott Tucker, AMG Capital Management, LLC, Level 5 Motorsports,
26 LLC, Black Creek Capital Corporation, and Broadmoor Capital Partners (collectively, “Tucker
Defendants”) has withdrawn from the representation. As a result of his criminal conviction in
27 the Southern District of New York, Mr. Tucker was sentenced to prison and remanded to
28 custody. Having previously inquired of counsel, we believe Mr. Tucker is not presently
represented in this action, and therefore we intend to serve this motion directly on him. We shall
send Mr. Tucker a copy of this motion via mail at his present Bureau of Prisons facility.
EXHIBIT 1
1
Page 14
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 17 of 27
1
Accordingly, the Monitor and the Sunway Parties hereby jointly ask that the Court issue
2 an order approving the Settlement Agreement.
3 Dated: January 17, 2020
4 Respectfully submitted by:
5
6
7
8
9
Ballard Spahr LLP
2029 Century Park East, Suite 800
Los Angeles, California 90067-2909
10
11
12
13
14
15
16
17
/s/ Edward Chang
Edward Chang (NV 11783)
echang@mcnamarallp.com
Logan D. Smith (Pro Hac Vice)
lsmith@mcnamarallp.com
Sanjay Bhandari (Pro Hac Vice)
sbhandari@mcnamarallp.com
MCNAMARA SMITH LLP
655 West Broadway, Suite 1600
San Diego, California 92101
Tel.: 619-269-0400
Fax: 619-269-0401
/s/ Michael B. Shteamer
Michael B. Shteamer
POLSINELLI PC
900 W. 48th Place, Suite 900
Kansas City, MO 64112
Tel.: 816-374-058
Fax: 816-753-1536
Email: mshteamer@polsinelli.com
Attorneys for Sunway Hotel Group, Inc.,
Sunway Hotel Management, Inc., Bartlesville
SW Hotel, Inc., Bartlesville Hotel LLC, and
Bartlesville Hotel DEC, LLC
Abran E. Vigil (NV 7548)
vigila@ballardspahr.com
BALLARD SPAHR LLP
1980 Festival Plaza Drive, Suite 900
Las Vegas, NV 89135-2958
Tel.: 702-471-7000
Fax: 702-471-7070
Attorneys for Court-Appointed Monitor,
Thomas W. McNamara
18
19
20
21
22
23
24
25
26
27
28
2
EXHIBIT 1
Page 15
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 18 of 27
1
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of January, 2020, pursuant to Fed. R. Civ. P. 5(b), I
served via CM/ECF or delivered by email and mailing in the U.S. Mail a true and correct copy of
3 the foregoing JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT WITH
SUNWAY HOTEL GROUP, INC.; SUNWAY HOTEL MANAGEMENT, INC.;
4 BARTLESVILLE SW HOTEL, INC.; BARTLESVILLE HOTEL, LLC; AND
BARTLESVILLE HOTEL DEC, LLC, postage prepaid and addressed to the following:
5
VIA CM/ECF
VIA CM/ECF
Jeremy R. Vanderloop
6 Blaine T. Welsh
U.S. Attorney’s Office
Madden Vanderloop, S.C.
116 S. Main Street
7 501 Las Vegas Boulevard South, Suite 1100
Las Vegas, NV 89101
Mayville, WI 53050
Tel.: 920-387-2300
8 Tel.: 702-388-6336
Email: Blaine.Welsh@usdoj.gov
Fax: 920-387-4428
Email: jvanderloop@madvanlaw.com
9 Attorneys for FTC
Attorneys for Interested Parties ETS Ventures,
LLC; El Dorado Trailer Sales; and Dale E.
10
Becker
11
VIA CM/ECF
VIA CM/ECF
Martin L. Welsh
12 Kimberly L. Nelson
Federal Trade Commission
Law Office of Hayes & Welsh
199 N. Arroyo Grande Blvd.
13 600 Pennsylvania Ave. NW
Mail Stop CC-9528
Henderson, NV 89074
Tel.: 702-434-3444
14 Washington, DC 20580
Tel.: 202-326-3304
Fax: 702-434-3739
Email: mwelsh@lvlaw.com
15 Fax: 202-326-3197
Email: knelson@ftc.gov
Attorneys for Interested Parties ETS Ventures,
LLC; El Dorado Trailer Sales; and Dale E.
16 Attorneys for FTC
Becker
17
VIA CM/ECF
VIA CM/ECF
Nicole Ducheneaux
18 Paul C. Ray
Paul C. Ray, Chtd.
Fredericks Peebles & Morgan LLP
3610 North 163rd Plaza
19 8670 West Cheyenne Avenue, Suite 130
Las Vegas, NV 89129
Omaha, NE 68116
Tel.: 402-333-4053
20 Tel.: 702-823-2292
Fax: 702- 823-2384
Fax: 402-333-4761
Email: nducheneaux@ndnlaw.com
21 Email: paulcraylaw@gmail.com
Attorneys for AMG Capital Management, LLC; Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
22 Level 5 Motorsports, LLC; Black Creek
Capital Corporation; Broadmoor Capital
23 Partners, LLC; Scott A. Tucker; Park 269 LLC
2
24 VIA CM/ECF
Francis J. Nyhan
25 Fredericks Peebles & Morgan LLP
2020 L Street, Ste. 250
26 Sacramento, CA 95811
Tel.: 916-441-2700
27 Fax: 916-441-2067
Email: jnyhan@ndnlaw.com
28 Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
VIA CM/ECF
Joshua M. Dickey
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148-1302
Tel.: 702-562-8820
Fax: 702-562-8821
Email: jdickey@baileykennedy.com
Attorneys for Red Cedar Services, Inc., dba
500FastCash; SFS, Inc., dba OneClickCash
EXHIBIT 1
Page 16
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 19 of 27
1 VIA CM/ECF
Victoria W. Ni
2 Public Justice, PC
475 14th Street, Suite 650
3 Oakland, CA 94612-1949
Tel.: 510-622-8150
4 Fax: 510-622-8155
Email: vni@publicjustice.net
5 Attorneys for Intervenor Americans for
Financial Reform
6
VIA EMAIL
7 Kim Tucker
7118 Village Drive
8 Prairie Village, KS 66208
kim@kimtucker.net
9 Pro Se
VIA CM/ECF
Craig B. Friedberg
Law Offices of Craig B. Friedberg
4760 South Pecos Road, Suite 103
Las Vegas, NV 89121
Tel.: 702-435-7968
Fax: 702-946-0887
Email: attcbf@cox.net
Attorneys for Intervenor Americans for
Financial Reform
VIA U.S. MAIL
Leavenworth Detention Center
Attn: Scott Tucker (RN 06133-045)
100 Highway Terrace
Leavenworth, KS 66048
10
/s/ Edward Chang
11 Edward Chang
Attorneys for the Court-Appointed Monitor,
12 Thomas W. McNamara
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT 1
Page 17
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 20 of 27
EXHIBIT B
EXHIBIT 1
Page 18
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 21 of 27
EXHIBITB
OMNIBUS ASSIGNMENT OF ECONOMIC INTEREST
WESTFUND, LLC, a Nevada limited liability company, is the current owner and holder
of certain Assignments of Economic Interest of Bartlesville Hotel, LLC, a Kansas limited
liability company made by Bartlesville DEC, LLC, a Kansas limited liability company, Donald
E. Culbertson, The DEC Trust UTA January 23, 2012, and Donald E. Culbertson Revocable
Trust UTA January 1, 1998, as amended. The documents that evidence the Assignments of
Economic Interest of Bartlesville Hotel, LLC ("Bartlesville Hotel") include the documents
described on Exhibit A attached hereto and incorporated herein by reference, being collectively
referred to herein as the "Economic Interest").
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, THOMAS W. MCNAMARA, IN HIS CAPACITY AS A COURTAPPOINTED MONITOR IN LITIGATION ENTITLED FEDERAL TRADE COMMISSION
V. AMG SERVICES, INC., ET AL., D. NEV. CASE NO. 2:12-CV-00536-GMN-VCF
("Assignor") does hereby grant, bargain, sell, assign, deliver, convey, transfer and set over unto
Bartlesville DEC, LLC ("Assignee"), all of Assignor's right, title and interest in and to the
Economic Interest and obligations with respect to the Economic Interest, together with all rights,
remedies, collateral, instruments or other documents made or granted in favor of Assignor in
connection with the Economic Interest, including, without limitation: (i) the documents and
instruments relating to the Economic Interest described on Exhibit A attached hereto and
incorporated herein; and (ii) all other rights, remedies and obligations of Assignor in connection
with Assignor's ownership and/or interest in the Bartlesville Hotel including but not limited to the
Economic Interest, whether provided by contract or otherwise available under applicable law or in
equity.
This assignment is an agreement between the parties hereto and no other party shall be
deemed to be a third party beneficiary hereof.
This assignment shall be governed by and interpreted and construed pursuant to the laws of
the State of Nevada, without giving effect to any conflicts of law principle. In the event of a
dispute regarding this assignment, Assignee and Assignor hereby consent to the exclusive
jurisdiction and venue of the U.S. District Court for the District of Nevada, and specifically, the
Court having jurisdiction over Federal Trade Commission v. AMG Services, Inc., et al., D. Nev.
Case No. 2:12-cv-00536-GMN-VCF, which jurisdiction shall survive termination of the litigation.
To have and to hold the same unto the Assignee and to the successors and assigns of the
Assignee forever. Assignee agrees that the Economic Interest is subject to a pledge and security
interest granted by BH Management, LLC, an Oklahoma limited liability company, in favor of
First NBC Bank pursuant to a Collateral Pledge Agreement dated December 19, 2011, which
pledge and security interest is now held by LNV Corporation as assignee of the Federal Deposit
Insurance Corporation as Receiver for First NBC Bank.
71667477.2
EXHIBIT 1
Page 19
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 22 of 27
Assignor represents and warrants to Assignee that: (i) Assignor is the holder and owner
of the Economic Interest; and (ii) Assignor has all necessary power and authority to assign the
Economic Interest and the undersigned is duly authorized to execute this Omnibus Assignment
of Economic Interest on behalf of the Assignor.
IN WITNESS WHEREOF, this Omnibus ~~f Econ~terest has been duly
executed and sealed on behalf of Assignor as of t h y day of
~
2020.
(;b. ""'
,
THOMAS W. MCNAMARA, IN HIS
CAPACITY AS A COURT-APPOINTED
MONITOR IN LITIGATION ENTITLED
FEDERAL TRADE COMMISSION V.
AMG SERVICES, INC., ET AL., D. NEV.
::s~-:;:~-IN WITNESS WHEREOF, this Omnibus Assignment of Economic Interest has been duly
executed and sealed on behalf of Assignee as of the __ day of
, 2020.
BARTLESVILLE DEC, LLC
By:
Title:
71667477.2
EXHIBIT 1
Page 20
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 23 of 27
EXHIBIT A
SCHEDULE OF DOCUMENTS
1.
Assignment of Economic Interest, dated as of November 30, 2013, by Bartlesville Hotel
DEC, LLC in favor of Westfund LLC
2.
Assignment of Economic Interest, dated as of November 30, 2013, by Donald E.
Culbertson in favor of Westfund LLC
3.
Assignment of Economic Interest, dated as of November 30, 2013, by The DEC Trust
UTA January 23, 2012 in favor ofWestfund LLC
4.
Assignment of Economic Interest, dated as of November 30, 2013, by Donald E.
Culbertson Revocable Trust UTA January 1, 1998, as amended in favor of Westfund
LLC
71667477.2
EXHIBIT 1
Page 21
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 24 of 27
EXHIBIT C
EXHIBIT 1
Page 22
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 25 of 27
EXHIBITC
OMNIBUS ASSIGNMENT OF MEMBERSHIP
INTEREST OF BARTLESVILLE HOTEL HOLDINGS, LLC
BARTLESVILLE HOTEL HOLDINGS, LLC ("Bartlesville Hotel Holdings"), a
Nevada limited liability company, is the current owner and holder of a fifty-five percent (55%)
membership interest in Bartlesville Hotel, LLC, a Kansas limited liability company, (being
collectively referred to herein as the "Membership Interest of Bartlesville Hotel Holdings") as
more fully set forth in the Second Amended and Restated Operating Agreement of Bartlesville
Hotel, LLC dated November 27, 2013.
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, THOMAS W. MCNAMARA, IN HIS CAPACITY AS A COURTAPPOINTED MONITOR IN LITIGATION ENTITLED FEDERAL TRADE COMMISSION
V. AMG SERVICES, INC., ET AL., D. NEV. CASE NO. 2:12-CV-00536-GMN-VCF
("Assignor") does hereby grant, bargain, sell, assign, deliver, convey, transfer and set over unto
Bartlesville DEC, LLC ("Assignee"), all of Assignor's right, title and interest in and to the
Membership Interest of Bartlesville Hotel Holdings, together with all rights, remedies, collateral,
instruments or other documents made or granted in favor of Assignor in connection with the
Membership Interest of Bartlesville Hotel Holdings, including, without limitation: (i) the
documents and instruments relating to the Membership Interest of Bartlesville Hotel Holdings,
described on Exhibit A attached hereto and incorporated herein; and (ii) all other rights, remedies
and obligations of Assignor in connection with the Membership Interest of Bartlesville Hotel
Holdings, whether provided by contract or otherwise available under applicable law or in equity.
This assignment is an agreement between the parties hereto and no other party shall be
deemed to be a third party beneficiary hereof. This assignment shall effectively transfer and
convey Bartlesville Hotel Holdings fifty-five percent (55%) membership interest in Bartlesville
Hotel, LLC to Assignee.
This assignment shall be governed by and interpreted and construed pursuant to the laws of
the State of Nevada, without giving effect to any conflicts of law principle. In the event of a
dispute regarding this assignment, Assignee and Assignor hereby consent to the exclusive
jurisdiction and venue of the U.S. District Court for the District of Nevada, and specifically, the
Court having jurisdiction over Federal Trade Commission v. AMG Services, Inc., et al., D. Nev.
Case No. 2:12-cv-00536-GMN-VCF, which jurisdiction shall survive termination of the litigation.
To have and to hold the same unto the Assignee and to the successors and assigns of the
Assignee forever. Assignee agrees that the Membership Interest of Bartlesville Hotel Holdings
is subject to a pledge and security interest granted by BH Management, LLC, an Oklahoma
limited liability company, in favor of First NBC Bank pursuant to a Collateral Pledge Agreement
dated December 19, 2011, which pledge and security interest is now held by LNV Corporation
as assignee of the Federal Deposit Insurance Corporation as Receiver for First NBC Bank.
71671231.2
EXHIBIT 1
Page 23
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 26 of 27
Assignor represents and warrants to Assignee that: (i) Assignor is the holder and owner
of the Membership Interest of Bartlesville Hotel Holdings; and (ii) Assignor has all necessary
power and authority to assign the Membership Interest of Bartlesville Hotel Holdings and the
undersigned is duly authorized to execute this Omnibus Assignment of Membership Interest of
Bartlesville Hotel Holdings on behalf of the Assignor.
IN WITNESS WHEREOF, this Omnibus Assignment of Membership Interest of
~Jesville HQtet1!0ldings has been duly executed and sealed on behalf of Assignor as of the
2#=1iay of l/~
, 2020.
THOMAS W. MCNAMARA, IN HIS
CAPACITY AS A COURT~APPOINTED
MONITOR IN LITIGATION ENTITLED
FEDERAL TRADE COMMISSION V.
AMG SERVICES, INC., ET AL., D. NEV.
~:s:?P~
IN WITNESS WHEREOF, this Omnibus Assignment of Membership Interest of
Bartlesville Hotel Holdings has been duly executed and sealed on behalf of Assignee as of the
__ day of
, 2020.
BARTLESVILLE DEC, LLC
By:
Name:
Title:
71671231.2
EXHIBIT 1
Page 24
Case 2:12-cv-00536-GMN-VCF Document 1281-1 Filed 01/17/20 Page 27 of 27
EXHIBIT A
SCHEDULE OF DOCUMENTS
1.
Assignment of 55% Membership Interest of Bartlesville Hotel Holdings, LLC
2.
Second Amended and Restated Operating Agreement of Bartlesville Hotel, LLC, a
Kansas limited liability company dated November 27, 2013
71671231.2
EXHIBIT 1
Page 25
Case 2:12-cv-00536-GMN-VCF Document 1281-2 Filed 01/17/20 Page 1 of 1
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
11 FEDERAL TRADE COMMISSION,
Case No. 2:12-cv-00536-GMN-VCF
Plaintiff,
12
[PROPOSED] ORDER APPROVING
SETTLEMENT AGREEMENT BETWEEN
MONITOR AND SUNWAY HOTEL
GROUP, INC.; SUNWAY HOTEL
MANAGEMENT, INC.; BARTLESVILLE
SW HOTEL, INC.; BARTLESVILLE
HOTEL, LLC; AND BARTLESVILLE
HOTEL DEC, LLC
v.
13
14
AMG SERVICES, INC., et al.,
Defendants, and
15 PARK 269 LLC, et al.,
Relief Defendants.
16
17
18
Having reviewed the joint motion of the Court-appointed monitor Thomas W.
19 McNamara, and non-parties Sunway Hotel Group, Inc.; Sunway Hotel Management, Inc.;
20 Bartlesville SW Hotel, Inc.; Bartlesville Hotel, LLC; and Bartlesville Hotel DEC, LLC, the
21 Settlement Agreement attached to the joint motion, and for good cause shown,
22
IT IS HEREBY ORDERED that the Settlement Agreement is hereby APPROVED.
23 The Court shall retain jurisdiction over the interpretation and enforcement of the agreement.
24
IT IS SO ORDERED.
25
16
March
DATED this ______ day of _____________________, 2020.
26
27
28
GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE
1
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