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Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 1 of 12
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
ARTHUR NADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.,
CASE NO.: 8:09-cv-0087-T-26TBM
Dcfcndants,
SCOOP REAL ESTATE, L.P.,
VALHALLA INVESTMENT PARTNERS, L.P..
VALHALLA MANAGEMENT, INC.,
VICTORY FUND, LTD,
VIKIN G IRA FUND, LLC,
VIKING FUND, LLC, AND
VIKING MANAGEMENT, LLC.
Rclicf Dcfcndants.
/
RECEIVER'S DECLARATION IN SUPPORT OF THE
UNOPPOSED MOTION TO EXPAND THE SCOPE OF RECEIVERSHIP
Burton W. Wiand declares as follows:
1. I am an attorney with fowler White Boggs P.A. ("Fowler White") in Tampa,
Florida.
2. In the January 21, 2009, Order Appointing Receiver (Doc. 8), the Court
appointed me Receiver over (a) defendants Scoop Capital, LLC ("Scoop Capital") and Scoop
Management, Inc. ("Scoop Management") and (b) relief defendants Scoop Real Estate, L.P.,
Valhalla Investment Partners, L.P.; Valhalla Management, Inc.; Victory IRA Fund, Ltd.;
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 2 of 12
Victory Fund, Ltd.; Viking IRA Fund, LLC; Viking Fund, LLC; and Viking Management
(collectively, the "Receivership Entities;" and Scoop Real Estate, Valhalla Investment,
Victory IRA, Victory Fund, Viking IRA, and Viking Fund arc collectively refened to as the
"Hedgc Funds").
3. By early afternoon on January 21,2009, I had entered and obtained control of
the offices of the Receivership Entities (located at 1618 Main Street, Sarasota, FL 34236) and
had begun my investigation into the affairs of the Receivership Entities. Those offices also
were used by Arthur Nadel ("Nadel") as the headquarters for administering his control of
other businesscs (I rcfcr to those offices as thc "Offce").
4. I have bcen assisted in my invcstigation by my attorneys, an accountant, and
information technology experts. Since I obtain cd control of the Receivership Entities, I, my
attorneys, and/or my accountant have had discussions - including continuing discussions -
with a number of people associated with Nadel and/or the Receivership Entities, including
officers of some of the Receivership Entities and persons responsible for maintaining the
financial books of the Receivership Entities and of other businesses controlled by Nadcl, for
operating other businesses controlled by Nadel, for perfèm11ing accounting services, and for
administering the Hedge Funds.
5. We have also reviewed documents located in the Office, documents obtained
from the accountant for the Receivership Entities, inforn1ation stored on the Receivership
Entities' computer network, documents obtained from other businesses controlled by Nadel,
and infonnation available in the public record.
2
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 3 of 12
6. Our investigation has revealed information showing that additional businesses
controlled by Nadel and in which he had a full or partial interest were purchased and/or
funded with money derived from Nadel's fraudulent investment scheme (the "scheme").
7. In Plaintiffs Emergency Motion and Memorandum of Law in Support of
Temporary Restraining Order and Other Emergency Relief (the "SEC's Emergency Motion")
(Doc. 2) and supporting papers, the Securities and Exchange Commission (the "SEC")
presented evidence showing that Nadel defrauded investors in the six Hedge Funds from at
least January 2008 until the time he fled the jurisdiction by "massively overstating the value
of investors' interests in them." SEC Emerg. Mot. at 2,6.
8. As shown by the SEC, Nadel defrauded invcstors through his control of the
Hedge Funds' adviscrs and managers, Scoop Capital and Scoop Management, which are now
in receivership. ¡d. at 4-6. Through those entities, Nadcl was ultimately responsible for
controlling the investments funds' invcstmcnt activities.
9. As noted above, thc SEC prcsented cvidencc showing that Nadel defìauded
investors since at least January 2008. During our invcstigation, wc uncovered evidcnce
showing the fraud began at least as early as 2003 (and in all likelihood before then).
10. Our investigation has revealed that for each Hedge Fund, the fund's
perforn1ance as disclosed to investors was based mainly on money and trading results that
Nadcl purported to have in two accounts: a brokerage account cleared through Goldman
Sachs Group, Inc. (in which money was purpOlicdly traded to generate the purported returns
Nadel was yielding) and a bank account (from which purported distributions and purported
redemptions were apparently paid). (While the disclosed performance of some funds at times
3
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 4 of 12
also took into account investments purportedly held in other accounts, the value of those
purported investments did not meaningf'ully impact the analysis in the table below - the
overwhelming majority of the purported trading was supposed to take place in the Goldman
Sachs brokerage accounts).
11. Below is a table comparing actual values of the Hedge Funds to the values as
represented to investors. Specifically, for each year-end from 2003 to 2007, the table lists the
actual value of the brokerage account of each Hcdge Fund (identified as "Actual Brokerage")
and the actual value of the bank account of each Hedge Fund (identificd as "Actual Bank").
The actual values of each fund for each analyzed timc period are addcd to determine the
actual total valuc of thc Hedge Funds as 0 f Deccmbcr 31 st; that value is idcntified in the row
labeled "Total Actual Valuc." Finally, the last row, labeled "Valuc Represented to
Investors," idcntifies the collective value of the f1.inds as of December 31st of each year
analyzcd in the table as reprcsented to investors and as used by Receivership Entities to
compute fees, returns, and other variables.
4
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 5 of 12
Value as of Value as of Value as of Value as of Value as of
12131103 ($) 12/31104 ($) 12/31105 ($) 12/31106 ($) 12/31107 ($)
Scoop Real Estate
Actual Brokcrage fund not in 16,670,254.69 20,435,896.75 17,597,319.95 2,689,054.53
existence
Actual Bank 2,595,096.26 2,568,381.69 202,116.95 1,443,406.92
Victory Fund
Actual Brokerage 22,680,904.69 23,848,019.27 23 ,324,285.51 7,890,073.11 2,586,116.58
Actual Bank 3,672,956.54 2,051,485.25 724,809.85 326,132.15 551,836.41
Victory IRA
Actual Brokcrage 5,898,125.28 13,070,558.97 17,746,441.12 9,981,754.77 1,096,190.22
Actual Bank 283,477.20 J ,733,770.80 2,223,265.61 325,675.56 178,009.43
Valhalla Investment
Actual Brokcrage 8,448,343.09 19,448,979.03 14,249,335.95 7,017,679.33 3,429,805.83
Actual Bank 576,760.49 3,391,544.40 3,027,125.65 406,66 J .65 13,28 1.47
Viking Fund
Actual Brokerage 23,411,778.98 33,375,622.75 25,983,502.33 10,054,454. I I 2,036,992.89
Actual Bank 1,382,193.93 5,184,911.6 2,112,871.9 185,311.70 1,583,67 1.26
Viking IRA
Actual Brokcrage 14,172,117.08 18,767,696.52 19,787,093.85 9,539,919.21 1,738,703.93
Actual Bank 293,720.78 2,935,428.03 548,977. io 187,995.90 695,791.20
TOTAL ACTUAL 80,820,378.06 143,073,367.23 132,731,986.70 63,715,094.39 18,042,860.67
VALUE
VALUE 128,953,97327 216,868,604.46 274,387,098.31 282,379,592.45 313,960,110.28
REPRESENTED
TO INVESTORS
12. As the previous table shows, for 2003 through 2007 (and, as shown by the
SEC, also in 2008), the value of the Hedge Funds as represented to investors was
significantly overstated. The investment returns and performance as represented to investors
were based on the overstated numbers and thus were also false.
5
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 6 of 12
13. Evidence also showed that the Hcdge Funds directly or indirectly paid
substantial fees to Scoop Capital and Scoop Management, and to other Receivership Entities,
in the form of management, advisory, and/or profit incentive fees. SEC Emerg. Mot. at 5-6.
According to the Hedge Funds' documents, in 2003 the Hedge Funds paid a total of
$7,045,509.31 in fees; in 2004, thcy paid $14,156,501.17 in fees; 11 2005, they paid
$20,349,897.02 fees; in 2006 they paid $18,257,590.52 in fees; 11 2007 they paid
$19,873,365.00 in fees; and in 2008 they paid $15,854,930.76 in fees.
14. Based on our investigation, it is likely that a significant sum of the proceeds of
Nadcl's scheme madc its way into other accounts controlled by Nadel and/or his wife,
Margucrite NadeL. For example, as dcmonstrated by the copies of checks attached hereto as
Exhibit A, in 2008 Nadel signed checks transferring at least $1,003,500.00 from Scoop
Capital to himself and his wife. Further, in 2003 and 2004 I have already seen
documentation showing that at lcast $685,000.00 was transferred to Nadel and his wife (and
have reason to believe that significantly more money was transfened to them). In short, it is
apparcnt from the documentation that large quantities of money were diverted from the
Hcdge Funds to Nadel and Mrs. NadeL. Indeed, to date we have not uncovered any source of
income for Nadel or his wife that was not in some manner funded with money from the
scheme.
15. Documentation and other information that we have collected shows that
money derived from the scheme was uscd by Nadel to purchase and/or fund other businesses,
including Venice Jet Center, LLC, and Tradewind, LLC.
6
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 7 of 12
Venicc Jet Ccntcr, LLC
16. To date, our investigation has revealed that Venice Jet Center, LLC ("VJC"),
is a Florida limited liability company fèm11ed in April 2006. See VJC filings with Florida
Secretary of State, attached hereto as Exhibit B. Its principal address is the Offce, and Nadel
is its registered agent and the managing member.
17. Basecl on communications with counsel for Mrs. Nadel and documentation
that we have reviewed, it appears that Mrs. Nadel owns a 50% interest in VJC. However, the
infèm11ation we have gathered shows that the assets of VJC were purchased with proceeds of
the scheme, and that over time additional proceeds of the scheme have been transferred to
VJc.
18. As part of my invcstigation, 1 and/or my attorneys have had discussions with
one of Nadel's sons (Chris Nadcl) and with Roger Gernigans. Based on those discussions,
we have learned that Mr. Gernigans is responsible for VJC's day-to-day operations and that
VJC is a viable business with potential to gencratc assets for the rcceivcrship cstate.
19. However, Nadel's legal problems have created difficulties for VJC to access
moncy for its day-to-day operations and it is at risk of going out of business. I believe VJC's
business operations would benefit from V JC's inclusion in this receivership and that the
eventual sale of the business could generate assets for eventual distribution to creditors.
20. According to documentation retrieved from the Officc, on August 8, 2005,
Nadcl cntered into an Assct Purchase Agreement to purchase a fixed base operation known
as "Triple Diamond Jet Center," which operated in the Venice Airport in Venice, Florida (a
copy of the Asset Purchase Agreement is attached hereto as Exhibit C).
7
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 8 of 12
21. Under the tenns of the Asset Purchase Agreement, Nadel agreed to pay
$2,795,000.00, including $2,695,000.00 payable at closing, and Dooley & Drake, P.A. was
named as the escrow agent and thc location for closing. See Ex. C '1'11.4.1., 1.8. fuiiJicr, the
Assct Purchase Agreement contemplated that Nadel would assign his interest to the
purchased assets (which was a 100% intercst) to an LLC. See id. ii 4.1.
22. The documentation reveals that V.JC was formed in April 2006, and in the
same month the Triple Diamond Jet Center was purchased with a transfer of money on June
8, 2006, from Scoop Capital to Dooley & Drake, P.A., for $2,793,587.12. The ledger for the
Scoop Capital account from which the transfer OCCUlTed identificd the purpose of the transfer
as "For VJC Closing." Thus, despite the possible co-ownership of YJC by Nadel and his
wife, the assets held by VJC were purchased with money from Scoop Capital (and thus,
Nadel's scheme).
23. Further, according to documents located in the Offce, since the formation of
VJC and its acquisition of assets as discussed above, Scoop Capital has made at least the
following transfers of money to VJC (it is likely that significantly more money was
transferred to VJC from Receivership Entities, and we continuc to look for evidcnce of
additional transfers):
Date Payee Amount
06/11/06 VJC $100,000
06/28/06 VJC 100,000
10/24/06 VJC 75,000
12/12/06 YJC 50,000
TOTAL: $325,000.00
8
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 9 of 12
Tradewind,LLC
24. The information that we have reviewed to date shows that Nadel was also the
managing member of another limited liability company named Tradewind, LLC
("Tradewind"). Tradewind was formed in Delaware in January 2004, and registered for the
first time in Florida in March 2008. See Tradewind Filings With Florida Secretary of State,
attached hereto as Exhibit D. Nadel is Tradewind's managing member and its registered
agent, and Tradewind's principal address is the Offce. As with VJC, it appears that Mrs.
Nadel has an interest in Tradewind.
25. Based on my discussions with Receivership Entities' personnel, Chris Nadel,
and an individual involved in Tradewind's business affairs (Edward Loughlin) and a review
of information obtained from the Office, I have learned that Tradewind owns and controls at
least 5 aircraft and owns airport hangars at the Newnan-Coweta County Airport in Georgia.
26. My investigation has also revealed that Tradewind was funded with money
from Nadel's scheme. Specifically, recent financial statements obtained from Nadel's and
Receivership Entities' files show that Tradewind's liabilities include loans from Scoop
Capital (in the amount of $2,490,146.77), Scoop Management (in the amount of $80,000),
and Nadel and his wife ($676,575.00). See Tradewind Balance Sheet at 1, attached hereto as
Exhibit E. Because, in all likelihood, significant sums of Receivership Entities' money were
transferred to Nadel and his wife (see supra '114), even the loan from them likely consisted
of Receivership Entities' money. Even though Mrs. Nadel may have an interest in the
company, Tradewind was overwhelmingly, if not completely, funded with proceeds from
Nadel's scheme.
9
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 10 of 12
27. For example, the Reccivership Entities' documentation shows that between
January 2004 and December 2008, at a minimum thc following transfers of money were
made from Scoop Capital directly to Tradewind or for Tradewind's benefit.
Date Payee Amount
01/16/04 Insured Aircraft Title $50,000
01/29/04 UnizanBank 152,000
03/31/05 Trac!ewind 200,000
02/07/06 Tradewind 100,000
03/08/06 Tradewind 50,000
04/05/06 Insured Aircraft Title * 100,000
05/05/06 Tradewind 200,000
05/05/06 Tradewind 200,000
05/08/06 Tradewind 50,000
05/09/06 Tradewind 50,000
OS/22/06 Tradewind 50,000
06/11/06 Tradcwind 100,000
06/28/06 Tradewi nc! 50,000
07/05/06 Tradewind 50,000
08/03/06 Tradewind 100,000
08/17/06 Tradewind 50,000
08/24/06 Tradewind 100,000
09/11/06 Tradewind 50,000
09/1 1/06 Tradewind 50,000
09/28/06 Tradewind 150,000
10/16/06 Tradewind 150,000
i 1/03/06 Tradewind 100,000
11/14/06 Tradcwind 100,000
12/1 1/06 Tradewind 100,000
12/19/06 Tradewind 50,000
01/08/07 Tradewind 50,000
01/12/07 Tradcwind 50,000
01/29/07 Tradcwind 50,000
02/14/07 Tradewind 50,000
04/09/08 Tradewind 75,000
05/07/08 Tradewind 50,000
05/13/08 Tradewind 20,000
05/14/08 Tradewind 10,000
06/02/08 Tradewind 90,000
10
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 11 of 12
07/07/08 Tradewind 100,000
08/14/08 Tradewind 80,000
08/25/08 Tradewind 20,000
09/02/08 Tradewind 60,000
09/30/08 Tradcwind 20,000
i 0/03/08 Tradcwind 20,000
i 0/13/08 Tradewind 20,000
10/25/08 Tradewind 20,000
11/11/08 Tradewind 25,000
11/18/08 Tradewind 5,000
11/21/08 Tradewind 30,000
12/09/08 Tradewind 6,000
i 2/15/08 Tradewind 30,000
12/23/08 Tradewind 13,000
TOTAL: $3,296,000
* Theses transfers were made in connection with the purchase or lease of one or more
aircraft for Tradewind.
28. Those documents also reveal that the following transfers of money were made
hom an account titled in the name of Scoop Management to Tradewind:
-
Date Payee Amount
02/17/04 Tradcwind 1,000.00
03/01/04 Tradewind 50,000.00
OS/27/04 Tradewind 50,000.00
09/19/05 Tradewind 50,000.00
10/25/05 Tradewind 20,000.00
04/17/06 Tradewind 50,000.00
TOTAL $221,000.00
29. Similarly to VJC, Tradewind appears to be a viable business with potential to
generate assets f~H the receivership estate. However, Nadel's legal problems have created
operational difficulties for Tradewind, and I believe Tradewind's business operations would
benefit from the inclusion of Tradewind into this receivership.
11
Case 8:09-cv-00087-RAL-TBM Document 16 Filed 01/26/2009 Page 12 of 12
I declare under the penalty of perjury that the foregoing is true and correct and is
executed this 26th day of January, 2009.
~'ÜBurton W. Wiand, as Receiver
c/o FOWLER WHITE BOGGS P.A.
501 E. Kennedy Blvd.
Suite 1700
Tampa, FL 33602
TeL. 813.228.7411
Fax 813.229.8313
bwiand(£fowlerwhite.com
Case 8:09-cv-00087-RAL-TBM Document 16-2 Filed 01/26/2009 Page 1 of 16
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Case 8:09-cv-00087-RAL-TBM Document 16-2 Filed 01/26/2009 Page 5 of 16
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The Qxistence of the company wiii èommenc~ on th_ date thQse
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~~icle$ of Orqanization are filed with the Florida Depart~ent o~
stat~, and th$ eKistence of the comp~y shaLl b. perpetual.
ARTICLE ¡II ~ PUPSE
'rbe company iny transact any or all law~l businesß for which
a li.i ted liabilá. ty company may bé oi:qaniz(ld und&r the Florida
Lir ted ~iabii~ ty Company Act.
JUU'ICL:S XV - ¡NIT.I REGISTERED AGENT Jl OFFICE
The street add~ess of the initial req1stered office of the
cOm.a~y is i619 Main St~eet, Sarasota~ FL 34236, ~nd the n~e ~f
the company. s initial ~egistered aqent at that address is ARTHoa
NADEL.
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ARTICLE V - PLAE OF BUS!NESS
The m~1linq address and the street ~ddre8s of the prineip~¡
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office of the company is 1618 Main Street, Sarasota, rL 34236.
ARTICLE VI - ADISSION OF AnOITIONA MEERS
The right of the inQIers to admit a.dditional meiei:s ~l'd the
ter. and condi tions of the adm16sion$ shall be ré~trieted solely
to those m~grS apP~Qved by ~he written COUsênt of a majority in
interest of the then-Elxistinq iietei.s and upon such tarIs and
cond tions as shall be set torth i~ i ts re~lation$.
ARTICLE VI! - MAAGENT BY MEBRS
The business of thQ ~any $hall be manaqed by the mem~~s in
prqportion to their contributions to tbè capital of the comany, as
adju.'ted from tlie to tins. to properly reflect any additiotil
contributions or withdrawals by the member~.
MTICL:E VIII .. REGULTIONS,
The pQWei: to adopt, altiar, aneid, or repeal the regulations of
the company is vested .xclu~ively in the memers of the comp~y.
AR~ICLe IX - ORGANIZER
The name a.nd street address of thø or9anizer executing thesQ
Articles of organization is:
AR1'UR NAEL
1618 Main street
Sarasota, it 3423G'
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ARTICLE X - TEFMINATION OF MEeRSHIP XNTEREST
The company shall not bQ dis501ved upon the deathJ retiremnt,
resignatiou, expulsion, bankruptcy, O~ dissolution of a ~ér or
the occurr~nce of any othar event which terminates the continued
memership ot a mset in the company,
ARTICLE XI - AMDMii'l OF AATICLS O.l ORGArZAT10N
Any ;¡endmnt to the Articlea of Orqanization shaii be
approved by ~ majo~1ty in intè~èSt of the ~amers and shall be as
p~escribed by the Seotetary of State of the State ot Florida.
DATE.D: Atl( I L. t ~ , 2005.
(In accordance with Section 60S.40El (3) i
~iorida statutes, the .~~cution of th1$
document constitutQ~ an affir.ation und~r the
penaltiQs of perjury that the facta stated
herein are true.)
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ACCEPT1\CE OF .RGIS~RE:O AGN~
Pursuant to section 608.415, Flo~ida statutß$, the !o11o~~q
is subiri tc:ed..
That VEiC~ JET CETER, LLC, desiring to o~anize as a li~ted
liability company unde~ the laws Of the Statè of Florida with its
ini tial regi~tered office, as 1ndieated in ita Aríoies of
Organization, at 1618 Main streQt, ss~asota, FL ~4236, has naed
~TßU NAEL as 1 ts agefit to accept service or process wi thin the
state of F1orida.
Ha-vinr¡ btien named to accept serviee of' process tor 'VICE JET
CENTER, LLC at the pla~. designated in this document, the
undersigned agrees to act 1n th~t capkoity and to comp1y with the
pi:o~isions of the Florida Li:tited Liability Coçany Act" &/J
am~ndedt rela.tive to keeplng ope:r the :illg-istered office. '1he
'ldei:si~ed is t~liar with, ;,nd accepts the oblig.ation~ ot,.
SQction 608.415, Florida Statutes.
DAn:: M~ It, I g- ,.2006.
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Case 8:09-cv-00087-RAL-TBM Document 16-3 Filed 01/26/2009 Page 6 of 7
2007 LIMITED LIABILITY COMPANY ANNUAL REPORT FILED
Jan 18, 2007
DOCUMENT# L06000040354 Secretary of State
Entity Name: VENICE JET CENTER, LLC
Current Principal Place of Business: New Principal Place of Business:
1618 MAIN STREET
SARASOTA, FL 34236
Current Mailing Address: New Mailing Address:
1618 MAIN STREET
SARASOTA, FL 34236
FEI Number: 20-4719423 FEI Number Applied For ( ) FEI Number Not Applicable ( ) Certificate of Status Desired ( )
Name and Address of Current Registered Agent: Name and Address of New Registered Agent:
NADEL, ARTHUR
1618 MAIN STREET
SARASOTA, FL 34236 US
The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both,
in the State of Florida.
SIGNATURE:
Electronic Signature of Registered Agent Date
MANAGING MEMBERS/MANAGERS: ADDITIONS/CHANGES:
Title: ( ) Delete Title: MGRM ( ) Change (X) Addition
Name: Name: NADEL, ARTHUR
Address: Address: 1618 MAIN ST
City-St-ip: City-St-Zip: SARASOTA, FL 34236 US
I hereby certify that the information supplied with this filing does not qualify for the for the exemption stated in Chapter 119,
Florida Statutes. I further certify that the information indicated on this report is true and accurate and that my electronic signature
shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company
or the receiver or trustee empowered to execute this report as required by Chapter 608, Florida Statutes.
SIGNATURE: ARTHUR NADEL MGRM 01/18/2007
Electronic Signature of Signing Managing Member, Manager, or Authorized Representative 1 Date
Case 8:09-cv-00087-RAL-TBM Document 16-3 Filed 01/26/2009 Page 7 of 7
2008 LIMITED LIABILITY COMPANY ANNUAL REPORT FILED
Apr 15, 2008
DOCUMENT# L06000040354 Secretary of State
Entity Name: VENICE JET CENTER, LLC
Current Principal Place of Business: New Principal Place of Business:
1618 MAIN STREET
SARASOTA, FL 34236
Current Mailing Address: New Mailng Address:
1618 MAIN STREET
SARASOTA, FL 34236
FEI Number: 20-4719423 FEI Number Applied For ( ) FEI Number Not Applicable ( ) Certificate of Status Desired ( )
Name and Address of Current Registered Agent: Name and Address of New Registered Agent:
NADEL, ARTHUR
1618 MAIN STREET
SARASOTA, FL 34236 US
The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both,
in the State of Florida.
SIGNATURE:
Electronic Signature of Registered Agent Date
MANAGING MEMBERS/MANAGERS: ADDITIONS/CHANGES:
Title: MGRM ( ) Delete Title: ( ) Change ( ) Addition
Name: NADEL, ARTHUR Name:
Address: 1618 MAIN ST Address:
City-St-Zip: SARASOTA, FL 34236 US City-Sl-ip:
I hereby certify that the information supplied with this filing does not qualify for the exemption stated in Chapter 119, Florida
Statutes. I further certify that the information indicated on this report is true and accurate and that my electronic signature
shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company
or the receiver or trustee empowered to execute this report as required by Chapter 608, Florida Statutes.
SIGNATURE: ARTHUR NADEL MGRM 04/15/2008
Electronic Signature of Signing Managing Member, Manager, or Authorized Representative 1 Date
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 1 of 12
ASSET PURCHASE AGREEMNT
Ths Agreement entered into on the8 ~day ofa A LE W'0005, between
TRLE DIAOND ENTRISES, LLC, a Florida ~bility Company, whose
address is Post Office Box 1967, Nokolls, Florida, 34274 (herein the "Sellet') and
Arhur Nadel and/or permtted assigns, 1618 Main Street, Sarota, FL 34236 (herein the
"Buyer"). (Buyer and Seller herein are sometimes referred to as the "Pares")
"VHREAS, Seller conducts a fied based operation known as ''Triple Diamond
Jet Center" located at 220 A.iie and othei businesselocatd at 4QOort
Avenue at the Venice Airport, Venice, Florida (hereinafer collectively the "Business");
and .
WHEREAS, Seller desires to sell, and Buyer desirs to purchase substantialy all
of the assets of the Business;
NOW, THEREFORE, in consideration of the above recitals, and the mutu
pfûiuises made hereiii, and il eurisideratioii of the representations, warranties, and
covenants herein contaed, Seller and Buyer hereby agree as follows:
Section 1. Purchase and Sale
1.1 Agrement to Sell and Purchase Assets. Subject to the terms and
conditions set fort in ths Agreement, Seller shal sell, transfer, convey, and deliver to
Buyer, and Buyer shal purchase, acquire and accept from Seller al of Seller's right, title
and interest in and to the following assets:
(a) The fixed base opration of the Business;cm.gwg~
.. those cert Lease Agreements between Seller and The City of Venice,
and those cert hangars, one with approxiately 10,00 square feet, and the other 2,500
squar feet;
(b) Work in Progress. Al of Seller's Work in Progress related to the Business
existig at the time of the Closing Date;
(c) Inventories. Al of Seller's items held for resale in the Business, in each
case wherever located including, without litation, al items listed in Schedule L1(a);
Cd) Offce and Other Equipment. Al equipment relating to the Cockpit Cafe
and fied base operation, offce furnture, offce equipment, telephones, pagers,
computers, computer perpheras, computer softare, and offce supplies which are used
in the Business includig, but not limited to, those items listed in Schedule L1(b);
(e) Other Contracts. Al Seller contracts related to the assets sold herein
including, but not linuted to, the lease agreement with Hert and other leases in force at
the tie of the execution of this Agreement;
(f) Customer Records, Business Records. Al data and records related to the
operations of the Business, including client and customer lists, referral sources, service
Page 1 of 12
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Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 2 of 12
and warty reords, equipment logs, financial and accounting records, advertising
materials, correspondence and other simar documents .and records and copies of all
personnel records;
(g) Trade Names. The trade name "Cockpit Cafe", and al title and interest in
and to said trade name, and al existing telephone numbers, and telephone listigs relating
to the Business;
(h) Permts. All rights of Seller in or related to permts primary related to
the Business or one or more of the assetS acquired, to the extent such rights may be
lawfully trsferred to Buyer or are necessar for opration of the Business;
(i) Equipment Leases. Seller's interest in the leases of assets listed in
Schedule 1. l(c) and Seller's rights under any leases of assets not listed in such Schedule
which are used in the Business, including, but not lited to, the weather service lease;
and
G) Other. Al other property uÍ SeHer described in Seheòule 1.i(d).
1.2 Buyer's Option. Buyer shal have the option, which shall be
exercised on or before the end of the Due Digence period referred to hereinafer in
Paragraph 2. 1, to purchase the restaurant preinses formerly known as the 44th Aero
Squadron, located at 222 Aiort Avenue, Venice, FL ("Restaurt Premises") for the
additional consideration (exclusive of the Puchae Price set fort in Paragraph 1.4.1) of
the sum of Five Hundred Thousand and No/lOO Dollar.
($500,00.00).
1.3 Excluded Assets. Notwithtadig anytg to the contrar contaied in
Paragraph 1.. or elsewhere in ths Agrment, the following assets (collectively, the
"Excluded Assets") are not par of the sale and purchae contemplated hereunder and are
excluded from the assets to be sold and shal remai the property Of Seller after Closing:
(a) Any and all airplanes owned by Seller, including log books for said
ailanes, and al pars for said ailanes.
1.4 Puchase Prce.
1.4.1 The aggrgate consideration for the Assets set forth in Paragrph
1.1 (the "Purchase Price") shall be Two Miion, Seven Hundred and Ninety Five
Thousand and NolOO Dollars ($2,795,00.00), payable to the Seller as follows:
(a) An earest money deposit in the sum of One Hundred Thousand Donars
($100,000.00) shal be due and payable contemporaneously with the execution of this
Agreement, to be held in escrow by Dooley & Drake, P.A.;
(b) On the Closing Date, as set forth herein in Paragraph 1.8, the balance of
the Purchase Price, Two Mion, Six Hundred Ninety Five Thousand and NolOO Dollars
($2,695,00.00) shal be delivered by Buyer to Seller, by cashier's check or imediately
avaiable funds to the Seller's ban account;
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Page 2 of 12
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Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 3 of 12
1.4.2 In the event Buyer exercises th~ option to purchase the Restaurant
Premises in accordance with Pargrph 1.2, on the Closing Date, an addtional Five
Hundred Thousand and No/lOO Dollars ($500,000.00) shal be delivered by Buyer to
Seller, by cashier's check or immediately available funds to the Seller's ban account.
1.5 Asmption of Liabilties. Buyer shall not assume or discharge or be
liable for any debts, liabilties, or obligations of Seller, including, with out limitation: (a)
any liabilties or obligations of Seller to creditors or shareholders as such or as creditors;
(b) any liabilties or obligations of Seller with respet to transactions occurg afer the
Closing; (c) any obligation of Seller with respect to income tax or other tax measured on
income incured or arsing out of the sale of the Assets; (d) any contigent liabilties or
obligations of Seller. Furtermore, pnor to or at closing, Seller shall reta, or otherwise
satisfy the following liabilties:
(a) Trade Payable. Any trade account payable arsing in the Business that
remains unpaid as of the Closing Date.
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vacation hours, sick pay and accrued benefits under any other existig employee benefit
plan.
(c) Waranties to Customers. Any liabilities for waranties given by Seller to
its customers in the ordiary course of business prior to the Closing Date.
(d) Customer Contrcts. Any liabilty to Seller's customers incured under
any contrt described in Schedule 1.4 (e).
(e) All local and state taxes on the Business and operations of Seller shal be
paid and curent as of closing.
1.6 Alocation of Puchase Price. The Pares agree to alocate the Purchase
Prce among the acquired assets in accordance with the alocation set fort in Schedule
1.6. The Pares shal consistently follow such alocation for al tax purpses and in al
figs, declarations and reports with the Internal Revenue Service, including the reports
required to be fied under Section 1060 ofthe Internal Revenue Code of 1986, as
amended. In any proeeding related to the determation of any tax, neither Buyeruor
Seller sha contend or represent that such alocation is not a correct allocaton.
1.7 Sales and Transer Taxes and Fees. All applicable sales, trsfer,
documentar, use, filg, and other taes and fees that may be due or payable as a result
of the. conveyance, assignent, trsfer, or delivery of the Assets as provided herein
whether levied on Buyer or Seller shal be borne by Buyer.
1.8 Closing. The purchase and sale provided for in ths Agreement (the
"Closing") sha tae place at the offces of Dooley & Drake, P .A., upon the approval of
the assignment ofthe leases frm The City of be a
Venice (which approval shal
condition to such closing), and withi thiy (30) days from the expirtion of the Due
Dilgence Period referred to hereinafer in Paragraph 2.1 (uness termated by Buyer), or
such other date as the Seller and Buyer may mutuly determe (the "Closing Date").
Page 3 of 12
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i:UG-5-2005 FRI 01: 34Pi"1 ID: PA(.F:?
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 4 of 12
1.9 Closing Obligations. In addition to any other documents to be delivered
under other provisions of ths Agreement, at Closing:
(a) Seller shal deliver to Buyer:
(i) a bil of sale for al of the Assets tht are tangible personal
property (the "Bil of Sale" executed by Seller)~
(ii) an assignent of al of the assets that are intangible personal
propert;
(iii) assignments of al intellectual property assets, if any;
(iv) Such other dees, bils of sales, assignents, certcate of title,
documents and other intrents of transfer and conveyance as
may reasonably be requested by Buyer, each in form and
substace satsfactory to Buyer and its legal counsel and
exected by Seller;
(v) Assignrnent of the lease ageement wiLl) Ll)e City of Venice for
the preiises at 400 Aiort Avenue and 220 Venice Avenue,
Venice, Florida 34285, executed by Seller; and,
(vi) A certficate executed by Seller as to the accurcy of the
representations and waranties as of the date of ths Agreement
and as of the Closing in accordace with Paragraph 8.1 and as to
its compliance with and performance of their covenats and
obligations to be performed or complied with at or before
Closing in accordance n/iL1- Section 5.
(b) Buyer shal deliver to Seller:
(i) The remaining balance of the Purchase Price in the sum of Two
Milion, Six Hundred Ninety Five Thousand and No/oo Dollars
($2,695,00.00) by cashier's check or imediately avaiable
fuds; and
(ü) In the event Buyer shall have exercised the option to purchase
the Restaurant Premises in accordance with Paragraph 1.2, Five
Hundred Thousand and No/lOO Dollar ($500,00.00) by
cashier's check or imediately avaiable funds.
1.10 Prorations. Tangible personal property taes on the equipment included
in the Assets shal be prorated between Seller and Buyer as of the Closing Date.
Section 2. Inspections
2.1 Due Digence. There shall be a Due Diligence Period beginng on
the exection date of ths Agreement and ending on the date that is sixty (60) days
thereafer. Durig the Due Dilgence Period, Seller shal provide Buyer with al
reasonable access to the books and records of the business (defined as Operatig
Statements, leases, service contracts, title inurance policies and/or sureys), and any and
Page 4 of 12
~~
AUG-5-2005 FR1 01: 34PM 10: PAGE:~
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 5 of 12
al documentation related thereto, as well as physical access to the premises durg
ordinary business hours.
2.2 AS-IS. EXCEPT FOR THE WARTIS SET FORTH IN THI
AGREEMENT næ IMPROVEIvNTS AND PERSONAL PROPERTY AR BEING
SOLD AN PURCHASED IN THEIR EXITIG "AS-IS" CONDIDON, WI AL
DEFECTS AN FAULTS Ai'I WIHOUT ANY WARTY, EXPRESS OR
IMLIED, AS TO MERCHA ABILIT, FITNSS OR USE FOR A PARTICULAR
PURCHSE, OR WORKSHI.
Section 3. Representations and Waranties of Seller.
Seller hereby represents and warants to Buyer as follows:
3.1 Organzation and Good Standin. Triple Diamond Enterprises, LLC, is
- - - '" i
duly organed, valdly existig and in good standig under the laws of the State of
Florida and has allrequisite power and authority to car on its business as it is nresently
conducted. Triple Diamond Enterprises. LLC, has no subsidiares and, furter, has no
diect or indirect interest, either by way of stock ownership or otherwise, in any other
form, corporation, association, or business.
3.2.. Authority. Triple Diamond Enterprises, LLC, has all requisite power and
authority under applicable corporate law to execute and deliver this Agreement and to
perform the tranactions contemplated hereby. The execution
and delivery of ths
Agrment and the consumation of the transactions contemplated hereby have been
duly authorized by Paul E. Hostetler, managig member or Triple Diamond Enterprises,
LLC, and no other approval is necessar for the execution, delivery and performce of
this Agreement. This Agreement constitutes a legal, vald and bindig obligation of
Seller, enforceable agaist Seller in accordace with its temis.
3.3 Magig Member. Paul E. Hostetler, is the managig member of
Triple Diamond Enterprises, LLC.
3.4 No Confct. The execution and delivery of tbis Agreement by Seller
and the consumtion of the trsactions contemplated hereby do not and wil not: (a)
requi Seller to fie any notice with or obta any consent, approval, authonzation or
exemption from any governenta agency or private person, (b) violate any applicable
legal requirement or order, or (c) constitute a default or breach under any contract to
which Seller is a par or by wbich Seller or any of the purchased assets are bound.
3.5 Title to the Asets. Seller has good and marketable title to the Assets and
the Businesses being sold to Buyer pursuant to th Agreement and all of the Assets and
the Businesses will be free and clear of al
liens and encumbrances, except for tangible
personal propert taes for 2005, at closing. The futue, fitues, and equipment ar in
goo condition and repair except for reasonable wear and tear.
3.6 Compliance with Law and Other Instruments. The Seller is not in
violation'of any term or provision of any charer, bylaw, mortgage, indenture, contract,
agreement, instrment, judgment, decree, order, statute, rue or regulation, and the
Page 5 of 12
~
AUG-5-2005 FRI 01 : 35PI'1 ID: PAGE: 4 f7
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 6 of 12
execution and delivery of any performance and compliance with ths Agreement wil not
result in the violation of, or be in confct with, or constitute a default under, any such
term or provision or reult in the creation of any mortgage, lien, encumbrace, or charge
upon any of the properties or assets of any Seller puruant to any such term or provision
3.7 Taxes. Seller ha properly completed and fIed with the ti and in the
maner prescribed by law, al local and stae requied tax retus and other documents
requi to be filed in respect to the Businesses, and al such returns and other documents
are tre, corrt and complete in al material respects. Seller has, with the tie and in
the maner prescribed by law, paid al taxes tht ar due and payable. If requied, Seller
has established reserves on its books that are adequate for the payment of al taxes not yet
due and payable or that are being contested in good faith. There are no encumbraces or
liens on any of the Assets that arose on connection with any faiure (or aleged faiure) to
pay any tax, and Seller has no knowledge of any basis for asserton of any clai
attrbutable to taes which, if adversely determned, would result in any such
encumbrance or liens.
3.8 Inil~ce. Seller maitains süch pûlicics ûf insurance cover.ig the
Assets, including coverage for personal liabilty and other coverage as Seller believes are
adequate for the conduct of the Businesses in accordance with the Businesses past
practice. Such insurance is sufcient to comply with al applicable legal requiments and
all agreements to which Seller is a par. Al such policies are in full force and effect and\
the premium have been paid when due. There are no clais, actions, suits or
proceedigs arsing out of or based upon any of such policies of insurance and, to the
knowledge of Seller, no reasonable basis for any such clai, action, suit or procedig
exists. Seller is not in defaut with respet to any provisions contaied in any such
insurce policies and, to the knowledge of Seller has not faied to give any notice or
present any material clai under any such insurce policy in due and tiely fashion.
3.9 Representations True. and Correct. No representation or waranty made
by Seller in thi Agreement (includig any Schedule or Exbit hereto), or in any
document delivered in accordace with this Agreement, contains or wil contai any .
untre statement of a matenal fact or omits or wil omit to state any material fact ( of
which any Seller has knowledge or notice) necssar to make the statements contaied
herein or therein not misleading.
Section 4. Represntations and Waranties of Buyer.
Buyer represents and warts to Seller that:
-L C . ~ed, valdly existing and II goo standig a .
L- 4.~ Organtion, Go ~tad~. Buy~r' ~ perr~d assignee ~ under
conducted. .
the laws of the State of .~ , which has all requisite power and authority to
own, leas and operate its propertes and assets and to conduct the businesses as currently
4.2 Authority. Buyer has al requisite power and authority under applicable
corporate law to execute and deliver ths Agrement and to perform the transactions
contemplated hereby. The execution and delivery of ths Agreement and the
Page 6 of12
AUG-5-2005 FR1 01: 36PM 10:
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PAGE: 5
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 7 of 12
consummation of the tranactions contempiated hereby have been duly authorizd by al
requisite membership action on the par of Buyer, and no other approval on the par of
Buyer is necessar under applicable law for the execution, delivery and perfornce of
tlis Agreement. This Agreement constitutes a legal, vald and bindig obligation of
Buyer, enforceable agaist Buyer in accordance with its term.
4.3 No Confcts. The execution and delivery of ths Agreement by Buyer and
the consummation of the transactions contemplated hereby do not and wil not: (a)
require Buyer to fie any notice with orobtan any consent, approval, authoriation or
exemption frm any person, (b) violate any court order, judgment, law, rule or reguation
or (c) constitute a default or breach under any contract to which Buyer is a par or by
which it or any of its propertes are bound.
4.4 Repreentations True and Correct No representation or waranty made
by Buyer in this Agreement (includig any Schedule or Exbit hereto), or in any
document delivered in accordance with ths Agreement, contais or wil contan any
untrue statement of a material fact or omits or wil omit to state any material fact ( of
which any Buyer has knowledge or notice) necessa.ry to make the statements contaed
herein or therein not misleadig.
Section 5. Covenants of Seller Prior to Closing..
5.1 Conduct of the Busnes. Except as otherwise contemplated by ths
Agreement pendig the Closing;
(a) Seller wil conduct and car on the Business in the ordiar and reguar
course consistent with past practice except that Seller sha be permtted to use Seller's
best efforts to colleet al accounts recivables arsing prior to the Closing.
(b) Seller wil use its reasonable effort to preserve the Assets (except as
provided in Paragraph 5. l(a) above and it being understoo that Seller wil bear the risk
of any loss, daage or destrction of the Assets until the Closing), the Business and
Seller's relationships with employees, customers, suppliers and others having business
relationships with the Business.
(c) Seller wil not sell, leae, mortgage, pledge or otherwise dispose of any
material amount of the Assets (other than the Excluded Assets) used in connection with
the Business, except the items disposed of are replaced with simar items or are no
longer needed for the operation of the Business.
Cd) Seller wi not enter into, or bee,orne obligated under, any contrt or
indebteess with respect to the Business, except in the ordinary coure of business or as
contemplated by this Agreement.
(e) Seller wil not change. amend, ternate or otherwise mod any contrct
included in the Assets.
(f) Seller wil use al reasonable effort to mata in full force and effect
policies of inurance of the same typ, character and coverage as the policies of insurce
Page 7 of 12
(j
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AUG-S-200S FRI 01: 37P,'1 ID: PAGE: 6
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 8 of 12
with respect to the Business in effect on the date of ths Agreement and wil give Buyer
prompt written notice of any and al chages that may occur between the date hereof and
the Closing with respect to the insurance coverages thereunder, provided that Seller wil .
not be obligated to mantain .any insurce with respect to the Puhasd Propertes or the
Business after the Closing.
5.2 Seller's Best Effort. Seller shal use its best efforts to cause all of the
conditions to Seller's obligaton to consumate the Closing to be satisfied, and in any
case wil not intentionaly tae any action, or intentionally brig about any circumstace,
which would prevent such a condition from being satisfied.
Section 6. Covenants of Buyer Prior to Closing
6.1 Completion of Due Dilgence. Buyer shall have tiely completed
its due digence of the Business, provided that Seller shall have complied with the terms
of the Due Dilgence Period. Thereafter, if Buyer has not termated the agreement, it
acknowledges that it wil have had fu access to al relevant inormtion with respet to
the fiances and operations of the Business and ha had an opportty to consult with
such experts as it deemed appropriate under the circumtaces. Buyer fuer
acknowledges that, based upon its due digence, it is in a position to make a prudent
judgment concering the purchase of the Assets and that Seller maes no representations,
waranties or guaranties, expressed or implied, with respect to the contiued success of
the Businesses.
6.2 Confdentialty. All data and inormaton recived by Buyer pursuant to
Section 4, as well as al inormation and data heretofore furnhed to Buyer in connection
with this transaction, wil be held in confdence by Buyer, and Buyer wil not diectly or
indire~tly (a) reveal, report, publish, disclose or tranfer any of the confdential
inorration obtaned from Seller, includig without limitation the names and addresses
of SeMer's customers, to others (other than counsel, accountants and other representatives
of Buyer engaged in connection with ths transaction, who wil be subject to the
provisions of ths Paragraph 6.2 or (b) use such inormtion for any purse (including
without litation to solicit any customers of Seller) other than in connection with ths
transaction, except with wrtten permssion of Seller.
6.3 Buyer's Best Effort. Buyer shal use its best efforts to cause ail.of the
conditions to Buyer's obligation to consumte the Closing to be satisfied, and in any
case shal not intentionaly tak any action, or intentionaly brig about any circumtace,
which would prevent such a condition from being satsfied.
Section 7. Termation
7.1 At any tie during the Due Dilgence Period, Buyer may give written
notice of termnation of this agreement as provided in Pargraph 9.4(a), for any or no
reason, and the escrow agent designated herein shal promptly refund to Buyer the
Earest money deposit in accordace with Paragraph l.4.l(a).
7.2 Except as otherwise agreed in writing by the paries, if any condition to
the Closing set fort in Section 8 is not satisfied by the Closing Date, then at any tie
Page 8 of 12
em
AUG-5-2005 FRI 01 : 38P!'! 10: PRGE: 7
C9
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 9 of 12
thereafter Seller may terminate this Agreement by giving written notice of termaton tb
the other par, provided such termatg pary is not in material default under ths
Agreement. The foregoing right of termation wil be in addition to, and not in lieu of,
any other rights and remedies avaiable under this Agreement or under applicable law
with respect to any breach by the non-termatig par. In the event termation of ths
Agreement by Seller is attbutable to Buyer's faiure to pedorm its obligations Seller.
shal be entitled to kep the earest money deposit held in escrow pursuant to the Escrow
Agreement. Except as otherwise provided in ths paragraph, termnation of this
Agrement wil termate al of the pares' rights and obligations hereunder, other than
the provisions of Pargraphs 6.2 and 9. i, which wil reman in effect.
Section 8. Conditions to Closing.
8.1 Conditions Precedent to Buyer's Obligation to Close. Buyer's obligation
to purchase the Assets and to take the other actions requid to be taken by Buyer at the
Closing is subjec to the satisfaction at or before the Closing, of each of the following
conditions (any of which may be waived by Buyer in whole or in par:
(a) Representations and Waranties. The representations and waranties of
Seller contaed in Section 3 shall have ben tre in al material respects as of the date of
tils Agrment and shal be tre in al material respets as of the Closing as though made
as of the Closing.
. - (b) Performce. Seller shall have performed and complied in al material
. respect with al covenants requird by ths Agrement to be performed or complied with
bv Seller or the Owner at or before the Closing.
8.2 Conditions Prcedent to Seller's Obligation to Close. Seller's obligation
to sell the Assets and to tae the other actions requird to be taen by Seller at the
Closing is subject to the satisfaction at or before the Closing, of each of the following
conditions (any of which may be waived by Buyer in whole or in par):. .
(a) Representations and Warties. The representations and waranties of
Buyer contaied in Section 4 shal have been tre in al material respects as of the date of
ths Agreement and shall be tre in all material respects as of the Closing as though made
as of the Closing.
(b) Performance. Buyer shal have performed and complied in al material
respects with all covenats required to be performed or complied with by it on or prior to
the Closing.
Section 9. Obligations After the Closing.
Except as otherwse provided in the Agreement, the Pares agre to the following
additional covenants which shal survive the Closing
9.1 Survval of Representations and Warranties. The representations and
waranties made by the pares in this Agreement or any certcate delivered puruant to
tils Agreement wil surive the Closing.
ci
AUG-5-2005 FRI 01: 38PI'I ID:
Page 9 of 12
PAGE: 8
e
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 10 of 12
Section 10. Miellaneous.
10.1 Parties Bound. Buyer may not assign ths Agreement without the
prior written consent of the Seller, and any such prohibited assignent shal be void;
provided, however, that Buyer may, without the prior written consent of Seller, assign
ths Agreement at or before the Oosing to any entity wholly owned by Arur Nadel,
provided however, any assignmnt of the Agreement shal not relieve Buyer of Buyer's
liabilty hereunder. Subject to the foregqing, ths Agrment shall be bindig upon and
inure to th benefit of the respective legai representatives, succssors, permtted assign,
heirs, and devisees of the pares. '
i
10.2 Costs and Expnses. WhCther or not the transactions contemplated by ths
Agreement are consumated, Buyer wi pay its own expenses, and Seller wil pay its
own expenses, in connection with the negotiation, execution, delivery and performance of
ths Agreement, including without litation the expenses of its counsel, accountats and
other experts.
10.3 Other Agreements Superseded; Waiver and Modifcation, Etc. Ths
Agreement supersedes all prior agreements or understandigs, wrtten or oral, among any
of the pares relatig to the subject matter heref, and together with the agreements
contemplated hereby incorporates the entie understanding of the pares with respect to
such subject mattr. Ths Agreement may be amended, supplemented or waived only by a
written instrent signed by the pares.
10.4 Recovery of Litiation Cots. If any legal action or any arbitraton or
other proceedig is brought for the enforcement of this Agreement, or because of an
aleged dispute, breach, default or misrepresentaon in connection with any provision of
ths Agrement, the successful or prevaig par shall be entitled to recover reasonable
attorneys' fees and other costs incurr in that action or procedig, in addition to any
other relief to which it may be entitled.
10.5 Notices. Any notice under or relatig to this Agrement shal be given in
wrting and shal be deemed suciently given and served for al purpses when
personaly delivered 2 business days afer a wrtig is deposited in the United States ma,
certed, first class postage or other charges prePaid and registered, addressed as follows:
(a) If to Buyer:
Arur Nadel
i 618 Mai Street
Sarota, FL 34236
(b) If to Seller:
James G. Beach, Jf.
Post Offce Box 1967
Nokomis, Florida 34274
Page 10 of 12
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AUG-S-200S FR1 01: 39PM 10: PAGE: 9
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 11 of 12
10.6 Governi Law and Venue. Tils Agreement sha be constrd in
accordace with and governed by the laws of the State of Florida Venue for any action
undertaken to enforce the term and conditions of tls Agreement or any dispute arising
out of the consummtion of ths Agreement shal be brought solely in the Circuit or
County Cour in and for Sarasota County, Florida
10.7 Pares in Interest. Nothg in ths Agreement, express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any
person other th the pares to it and their respetive permtted successors and assign,
nor is anytg in tls Agreement intended to relieve or discharge any obligation of any
thd person to any pary hereto or give any thd Person any right of subrogaton or
action over agaist any par hereto.
10.8 Fai Constniction. Tils Agreement has ben negotiated and prepard
jointly by al pares, and shal not be constred for or against any pary but shall be given
a fai and reasonable constrction in accordace with the intention of the pares.
lu.' Captions, Reîerence, Date. Tne secûon headigs in ths Al;eement are
provided for convenient reference only and are not to be considered in the interretaon
of this Agrement. Al references herein to Sections, Schedules, etc. refer to the
designated Section, Schedule, etc. of ths Agreement.
10.10 Severabilty. In the event that any of the provisions contaed in ths
Agreement shal, for any reason, be declard or held to be unasonable, unlawfl,
unenforceable or otherwise invald in any respect, such term or provision shal be deemed"",
moded to the extent necessii to make it enforceable, and in no eveüt shal such
declaration or holding afect the valdity of any other provision of ths Agreement, al of
which provisions sha contiue in effect in accordance with their terms.
10.11 Counterparts. Ths Agreement may be executed in any number of
counterpar or using separte signatu pages. Each such executed counterpar and each
counterpar to which such signatu pages are attached wil be deemed to be an origial
instrent, and al such counterpars together wil constitute one and the same
instrment.
10.12 Gender. All personal pronouns used in ths Agrment sha include the
other genders whether used in the masculie or femiine or neuter gender, and the
singuar shal include the plur whenever and as often as may be appropriate.
TH SPACE INTENTIONALY LEFT BLANK
~
~
Page i i of 12
AUG-5-2005 FRI 01: 40PM ID: PAGE: 10
Case 8:09-cv-00087-RAL-TBM Document 16-4 Filed 01/26/2009 Page 12 of 12
10.13 Exbits. Any exhbits or schedules attached to ths Agreement are
specifcaly incorporated herein by reference as if the same were fully set fort herein.
IN WITNESS ~REOF, the pares have execute or caused these preents to be
executed ths ~ day of ~ r-ZOO5.
SELLER BUYER
.~~¿d-1
TÍiniE~RlSES, LLC
By: PAULHOSTI~Ø/1.tf~.
A~M,~~.
Gd¿ l~
ARTHNADEL . --
As: Maagig M~' . r'
Page 12 of 12
AUG-5-2005 FRI 01: 41PM TO: PAGE: 11
Case 8:09-cv-00087-RAL-TBM
- .~
Document 16-5 Filed 01/26/2009 Page 1 of 6
.i 000001110 7
(Requestor's Name)
(Address)
(Address)
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(City/State/Zip/Phone #)
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(Business Entity Name)
(Document Number)
Certified Copies Certificates of Status
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Special Instructions to Filing Oficer:
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EXHIBITD
Case 8:09-cv-00087-RAL-TBM Document 16-5 Filed 01/26/2009 Page 2 of 6
COVER LETTER
TO: Registration Section
Division of Corporations
SUBJECT: Tradewind. LLC
(Name of Limited Liabilty Company)
The enclosed "Application by Foreign Limited Liability Company for Authorization to Transact Business in
Florida," Certificate of Existence, and check are submitted to register the above referenced foreign limited
liabilty company to transact business in Florida..
Please return all correspondence concerning this matter to the following:
Arthur Nadel -i
"P,,. .-
Tradewind. LLC
(Name of Person)
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1618 Main Street --I en.
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(Address)
Sarasota. FL 34236
(City/State and Zip Code)
For further information concerning this matter, please call:
Erica Post at ( 941 ) 366-0975
(Name of Person) (Area Code & Daytime Telephone Number)
MAILING ADDRESS: STREET ADDRESS:
Division of Corporations Division of Corporations
P.O. Box 6327 Clifton Building
Tallahassee, FL 323 14 266 i Executive Center Circle
Tallahassee, FL 3230 i
Enclosed is a check for the following amount:
0$125.00 Filing Fee 0$130.00 Filing Fee & 0$155.00 Filing Fee & 0$160.00 Filng Fee, Certificate
Certificate of Status Certified Copy of Status & Certified Copy
Case 8:09-cv-00087-RAL-TBM Document 16-5 Filed 01/26/2009 Page 3 of 6
.i
APPLICATION BY FOREIGN LIMITED LIABILITY COMPANY FOR AUTHORIZATION TO
TRASACT BUSINESS IN FLORIDA
IN COMPUACE Wl SFON (i503, FWRIA srA1T 11 FOllWlG IS SU 7D RFIS A FORFN
LI LlllCOMPANTD1RCl BUS IN7H SFA7EOF FLRIA:
i. Tradewind. LLC
(Name of Foreign Limited Liability Company: must include "Limited Liabilty Company," "L.L.C.," or "LLC.")
(If name unavailable, enter alternate name adopted for the purpose of transacting business in Florida and attach a copy of the written
the managers or managing members adopting the alternate name. The alternate name must include "Limited Liabilty
consent of
Company," "L.L.C.," "LLC.")
2. Deleware 3. 75-3143918 which foreign limited liability ( FEI number, if applicable)
(Jurisdiction under the law of
company is organized)
4. 1/22/2004 5. perpetual
(Date of Organization) (Duration: Year limited liabilty company wil cease to
exist or "perpetual")
6. Have not transacted business in Florida ~
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7. 1618 Main Street
(Date first transacted business in Florida, if prior to registration.)
(See sections 608.50 i & 608.502 F .5. to determine penalty liabilty) iC" co
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Sarasota. FL 34236 rr-: -l
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8. If limited liability company is a manager-managed company, check here 0
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9. The name and usual business addresses of the managing members or managers are as follows:
Arthur Nadel
1618 Main Street
Sarasota, FL 34236
10. Att is an oigi cefi of ~ no mo th 90 days old, du autica by th offci havi cu of re in
the jwisdcton un th law of whic it is oriz. (A phoy is no acle. If th cefica is in a tòreign la a
trlaon of th cefi iieroa ofihtrlatmus be sul:it)
i i. Nature of business or purposes to be conducted or promoted in Florida: Sale of Airplanes
S. f~l.f b
ignature 0 a mem er or an aut orize representative 0 a mem er.
(In accordance with section 608.408(3), F.S.. the execution of Ihis document constitutes
an affrmation under the penalties of peijury that the facts stated herein are true.)
Arthur Nadel, MGMR
Typed or printed name of signee
Case 8:09-cv-00087-RAL-TBM Document 16-5 Filed 01/26/2009 Page 4 of 6
CERTIFICATE OF DESIGNATION OF
REGISTERED AGENTIRGISTERED OFFICE
PURSUANT TO THE PROVISIONS OF SECTION 608.415 or 608.507, FLORIDA STATUTES, THE
UNERSIGNED LIMITED LIABILITY COMPANY SUBMITS THE FOLLOWING STATEMENT
TO DESIGNATE A REGISTERED OFFICE AND REGISTERED AGENT IN THE STATE OF
FLORIDA.
1. The name of the Limited Liability Company is:
Tradewind. LLC
Ifname unavailable, the alternate name to be used in the state of Florida is:
-1 '-
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2. The name and the Florida street address ofthe registered agent and offce WJ:~ è: '."
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Arthur Nadel CJ:;:)
(Name) rio
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1618 Main Street §~
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Florida Street Address (P.O. Box !:ACCElTABLE) .;p c.
Sarasota FL
City/State/Zip
Having been named as registered agent and to accept service of process for the above stated limited
liabilty company at the place designated in this certifcate, I hereby accept the appointment as registered
agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes
relating to the proper and complete performance of my duties, and I am familar with and accept the
obligations of my position as registered agent as provided for in Chapter 608, Florida Statutes.
a4L~ (Signature)
$ JOO.OO Filng Fee for Application
$ 25.00 Designation of Registered Agent
$ 30.00 Certified Copy (optional)
$ 5.00 Certifcate of Status (optional)
Case 8:09-cv-00087-RAL-TBM Document 16-5 Filed 01/26/2009 Page 5 of 6
.. ... .
. '"
Ðe(aware PAGE 1
qf :First State
I, HAIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWAR, DO HEREBY CERTIFY THE ATTACHED AR TRUE AND CORRCT
COPIES OF ALL DOCUMNTS ON FILE OF "TRAEWIND, LLC" AS RECEIVED
AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMNTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMTION, FILED THE TWNTY-SECOND DAY OF
JANARY, A.D. 2004, AT 4:41 O'CLOCK P.M.
AND I DO HEREBY FUTHER CERTIFY THAT THE AFRESAID
CERTIFICATES AR THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPAN, "TRAEWIND, LLC".
"J~~91~
Harriel Smith WIndsor, secretary of State
AUTHENTICATION: 6425556
3757755 8100H
080279505 DATE: 03-04 -08
You m4Y V8ri~y thi.i certiricate online
at corp. delaware. gov¡authver. .iht:
Case 8:09-cv-00087-RAL-TBM Document 16-5 Filed 01/26/2009 Page 6 of 6
.
A' .~. .
CERTIFICATE OF FORMATION
OF
TRADEWIND, LLC
1. The name of the limited liability company is TRAOEWIND, L.LC.
2. The address of its registered office in the State of Delaware is 2711
Centervile Road, Suite 400 in the city of Wilmington, Delaware. The name of the
Limited Liabilty Company's regis1ered agent for service of proes In the State of
Delaware a1 such addres is Corporation Servce Company.
3. This Certificate of formation shall be effective upon fiing with the Delaware
Secretary of State.
IN WITNESS WHEREOF, the undersigned has executed this Certifcate of
Formation of TradeWlnd, LLC this 22nd day of January, 2004.
LSI Scott Macleog.
Scott Macleod, Authorized
Representative of Manager
# 1 ~.ln22H_vl
St.te of Dølsware
Secrøtary of state
Division of Corporations
Vellvered 04:41 RM 01/22/2004
FILED 04: 41 PH 01/22/2004
SRV 040047767 - 3757755 FILE
Case 8:09-cv-00087-RAL-TBM Document 16-6 Filed 01/26/2009 Page 1 of 2
4:28 PM Tradewind, LLC
01/22/09 Balance Sheet
Cash Basis All Transactions
Feb 1, 09
ASSETS
Current Assets
Checking/Savings
Bank of Coweta -86,844.72
Northern Trust 9,546.08
Total Checking/Savings -77,298.64
Other Current Assets
Due from Laurel Mountain Preser 53,300.00
Loan Receivable
VABA 2,000.00
Total Loan Receivable 2,000.00
Undeposited Funds 1,825.00
Total Other Current Assets 57,125.00
Total Current Assets -20,173.64
Fbced AS5~t5
Accumulated Depreciation
Building GA -2,103.00
Furn & Equip GA -200.00
N319SC, Lear Jet -1,073,000.00
N610TT, Citation -643,245.00
N727AB, Baron -71,993.00
Total Accumulated Depreciation -1,790,541.00
N153TH, Citationll 2,100,000.00
N25602, Cessna 18,500.00
N319SC, Lear Jet 2,900,000.00
N4221T, Piper 50,000.00
N656RB, Helicopter 215,530.00
N727 AB, Baron 194,575.00
Newnan #1 Building 212,500.00
Newnan #2 Building 212,500.00
Newnan #3 Building 274,760.77
Newnan #4 Building 255,640.11
Newnan #5 Building 281,805.54
Newnan #7 Building 293,727.64
Offce Equipment 4,655.55
Office Furniture 3,516.48
Pilot Equipment 4,682.12
Total Fixed Assets 5,231,852.21
Other Assets
Accumilated Amortization -1,224.84
Start-Up Costs 1,869.20
Total Other Assets 644.36
TOTAL ASSETS 5,212,322.93
LIABILITIES & EQUITY
Liabilties
Current Liabilties
Other Current Liabilties
Loans Payable
Arthur & Marguerite Nadel 676,575.00
Scoop Capital 2,490,146.77
Scoop Management 80,000.00
Total Loans Payable 3,246,721.77
Page 1
EXHIBITE
Case 8:09-cv-00087-RAL-TBM Document 16-6 Filed 01/26/2009 Page 2 of 2
4:28 PM Tradewind, LLC
01/22/09 Balance Sheet
Cash Basis All Transactions
Feb 1,09
Loans Payable Bank
Bank of Coweta (UC) 966,999.23
General Electric Citation N153T 2,055,831.93
General Electric Lear N319SC 2,332,690.37
Total Loans Payable Bank 5,355,521.53
Sales Tax Payable 1,147.30
Security Deposit 8,312.50
Total other Current Liabilities 8,611,703.10
Total Current Liabilities 8,611,703.10
Total Liabilities 8,611,703.10
Equity
Contributed Capital 912,605.57
Retained Earnings -387,718.24
Net Income -3,924,267.50
'" "1('(" 1'01" .0-'
iotai Equity -vl....,.:;O,ùUV. I'
TOTAL LIABILITIES & EQUITY 5,212,322.93
Page 2
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