Motion for Summary Judgment in D&T PARTNERS, LLC vs. ACET GLOBAL, LLC, et al| Trellis.Law

On July 12, 2019 a Motion,Ex Parte was filed involving a dispute between D&T Partners, Llc, and Acet Global, Llc, Baymark Acet Direct Invest, Llc, Baymark Acet Holdco, Llc, Baymark Management, Llc, Baymark Partners, Hook, David, Ludlow, Tony, Windspeed Trading, Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
12/11/2020 3:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Veronica Vaughn DEPUTY

CASE NO. DC-19-09828

D&T PARTNERS, LLC (successor in interest IN THE DISTRICT COURT
to ACET VENTURE PARTNERS, LLC),

Plaintiff,

Vv, DALLAS COUNTY, TEXAS

ACET GLOBAL, LLC
BAYMARK ACET HOLDCO, LLC,
BAYMARK ACET DIRECT INVEST, LLC,
BAYMARK MANAGEMENT, LLC,
BAYMARK PARTNERS,
DAVID HOOK, TONY LUDLOW, and
WINDSPEED TRADING, LLC,

Defendants. 116™ JUDICIAL DISTRICT

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant Windspeed Trading, LLC (herein “Windspeed”) and files this

Traditional and No Evidence Motion for Summary Judgment (“Motion”). Windspeed respectfully

shows the Court as follows:

INTRODUCTION

1 Plaintiff brings this action against Windspeed based on its baseless allegations that

Windspeed conspired with the other Defendants to transfer the assets of ACET Global, LLC to

Windspeed in a fraudulent transfer and thus defraud Plaintiff in connection with the sale of a

security interest in ACET Holdco, LLC. Plaintiff's allegations, however, are misplaced, as

detailed in this Motion. Plaintiff brings claims against Windspeed seeking a declaratory judgment

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE,
MOTION FOR SUMMARY JUDGMENT — Pace 1 28053.003
Motion for Summary Judgment - Page 1
that Windspeed assumed the Note and Security Agreement payable to Plaintiff, for violations of

the Texas Uniform Fraudulent Transfer Act, and for Civil Conspiracy.

2. As set forth herein, Plaintiff's claims against Windspeed fail as a matter of law, and

these claims should be dismissed.

Il.

SUMMARY JUDGMENT EVIDENCE

3 In support of this Motion, Windspeed submits the following evidence, true and

correct copies of which are attached hereto and incorporated herein by reference as if fully set

forth:

Exhibit A: Affidavit of William C. Szeto.

Exhibit A-1: Certificate of Formation, dated September 27, 2018.

Exhibit A-2: Amended and Restated Company Agreement, dated October
18, 2018.

Exhibit A-3: Bill of Sale, dated March 1, 2019.

Exhibit A-4: Foreclosure Sale Agreement, dated March 1, 2019.

Exhibit A-5: Amended and Restated Business Loan & Security
Agreement, dated March 1, 2019.

4. In addition, Windspeed asks the Court to take judicial notice of “the pleadings,

admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if

any, on file” with the Court. Tex. R. Civ. P. 166a(c).

TI.

GROUNDS FOR SUMMARY JUDGMENT

5 Windspeed moves for summary judgment on the following grounds:

A. Plaintiff's declaratory judgment claim fails as matter of law because:

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
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Motion for Summary Judgment - Page 2
Windspeed was not a party to the Note or Security Agreement in question;

Windspeed was not an assignee or transferee of ACET Global, LLC or Baymark ACET
Holdco, LLC;

Windspeed purchased all of the assets directly from the lender, Super G Capital, LLC,
upon Super G Capital, LLC’s foreclosure;

Windspeed is not a “successor entity” under the Security Agreement; and

Plaintiff has no evidence that Windspeed is a successor entity to a “Fundamental
Transaction” under the Note.

Plaintiff's claims under TUFTA fail as a matter of law because:

1 Windspeed took the assets in good faith and for a reasonably equivalent value;

2. Windspeed fully performed under a lawful, arms-length contract for fair market value;

3 Windspeed provided consideration that had objective value at the time of the
transaction; and

4. Windspeed made the exchange in the ordinary course of its business.

Plaintiff's possible claim for civil conspiracy against Windspeed fails as a matter of law
because:

1 Windspeed purchased the assets from Super G as a good faith purchaser for value upon
the foreclosure of Super G’s secured loan;

Windspeed did not commit an unlawful, overt act;

Windspeed did not have a meeting of the minds with the other Defendants;

Plaintiff has no evidence of a meeting of minds on the object or course of action
between Windspeed and the other Defendants; and

Plaintiff has no evidence that Windspeed committed one or more unlawful, overt acts.

Iv.

BACKGROUND AND UNDISPUTED FACTS

6 Defendant ACET Global, LLC purchased the assets of ACET Venture Partners,

LLC, predecessor in interest to Plaintiff D&T Partners, LLC (herein “Plaintiff’), pursuant to an

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE,
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Motion for Summary Judgment - Page 3
Asset Purchase Agreement dated July 14, 2017. See Plaintiff's Second Amended Petition (herein

“Petition”). As part of the transaction, ACET Global, LLC entered into a Promissory Note with

ACET Venture Partners, LLC, in the amount of $3,230,000 payable to ACET Venture Partners,

LLC. /d., § 17. Baymark ACET Holdco, LLC entered into a Security Agreement with ACET

Venture Partners, LLC which granted a security interest in 59% of the membership interest of

ACET Global, LLC. /d., § 18. The interest was not registered with the Securities & Exchange

Commission or Texas State Securities Board. /d.
7
A week after the Asset Purchase Agreement, on or about July 20, 2017, ACET

Global, LLC executed a Business Loan and Security Agreement payable to Super G Capital, LLC

and granted Super G Capital, LLC a security interest in ACET Global, LLC’s various assets. See

Exhibit A-4; Petition, | 20. ACET Global, LLC defaulted on the Business Loan and Security

Agreement, and Super G Capital, LLC elected to conduct a foreclosure sale of the collateral. See

Exhibit A-4. As a result of the foreclosure sale, Windspeed purchased the secured collateral from

Super G Capital, LLC. See Exhibit A, Exhibit A-3. In order to purchase the collateral, on or about

March 1, 2019, Windspeed executed that certain Amended and Restated Business Loan & Security

Agreement evidencing a debt payable to Super G Capital, LLC in the amount of $514,144.86. See

Exhibit A, Exhibit A-5.

8 In its Petition, Plaintiff alleges Defendants David Hook and Tony Ludlow caused

the creation of Windspeed and caused the transfer of substantially all of the assets of ACET Global,

LLC to Windspeed. Petition, § 24. Plaintiff alleges this transfer violated the Note and Security

Agreement. /d. However, Windspeed was not formed by David Hook and Tony Ludlow. See

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE,
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Motion for Summary Judgment - Page 4
Exhibit A. Windspeed was initially formed and is owned by William C. Szeto with 100%

ownership. See Exhibit A. There is no other owner of Windspeed Trading, LLC.! Id.

9. Based on Plaintiff’ s ill-founded contentions, Plaintiff brought these baseless claims

against Windspeed seeking a declaratory judgment that Windspeed assumed the Note and Security

Agreement, for violation of the Texas Uniform Fraudulent Transfer Act (“TUFTA”), and for civil

conspiracy. Windspeed has been a party to a lawsuit for over one year for absolutely no reason.

For the reasons set forth herein, all of Plaintiff's claims fail as a matter of law.

ARGUMENTS AND AUTHORITIES

A. Traditional Summary Judgment Standard

10. The Texas Rules of Civil Procedure provide that a party against whom a claim is

asserted may, at any time, move with or without supporting affidavits for summary judgment in

its favor as to all or any part of the plaintiff's claims. See Tex. R. Civ. P. 166a(b). Summary

judgment shall be rendered if the summary judgment evidence and pleadings show that there is no

issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c).

11. In deciding whether a disputed material fact issue exists precluding summary

judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548-49 (Tex. 1985). “A defendant who moves for summary judgment must

1 Baymark Partners Management, LLC does own a warrant to purchase a 40% interest in Windspeed, which it has not
exercised. See Exhibits A, A-2. Baymark Partners Management, LLC has a right to appoint a manager to Windspeed’s
board of managers. Jd. Anthony Ludlow is Baymark Partners Management, LLC’s appointee to the board. Id.
However, Windspeed is owned by William C. Szeto with 100% ownership and there are a total of three managers on
Windspeed’s board.

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE,
MOTION FOR SUMMARY JUDGMENT — Pace 5 28053.003
Motion for Summary Judgment - Page 5
show that the plaintiff has no cause of action by either disproving at least one essential element of

each theory of recovery or conclusively proving all elements of an affirmative defense.” Jn re

Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.- Dallas 2009, no pet.) (citing Wornick Co. v.

Casas, 856 S.W.2d 732, 733 (Tex.1993)). Once the defendant produces sufficient evidence to

establish the right to summary judgment, the burden shifts to the plaintiff to come forward with

competent controverting evidence raising a genuine issue of material fact with regard to the

element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995).
B. Declaratory Judgment
Plaintiff's Declaratory Judgment Against Windspeed Must be Denied

12. Plaintiff seeks a declaratory judgment that “Windspeed Trading, LLC has assumed

all obligations under the Note and Security Agreement” payable to Plaintiff. Petition, 33. Under

the Uniform Declaratory Judgments Act, “[a] person interested under a ... contract ... or whose

rights, status, or other legal relations are affected by a ... contract ... may have determined any

question of construction or validity arising under the ... contract ... and obtain a declaration of

rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a).

13. A declaratory judgment is a remedial measure that affords parties relief from

uncertainty with respect to rights, status, and other legal relations. Tex. Civ. Prac. & Rem. Code

§ 37.002(b). It is proper if it “serves a useful purpose or will terminate the controversy between

the parties.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex. 1995). “Declaratory

judgment under the statute is appropriate only when a real controversy exists between the parties

and the entire controversy may be determined by the judicial declaration.” OAIC Commercial

Assets, L.L.C. v. Stonegate Vill., L.P., 234 8.W.3d 726, 745 (Tex. App.-Dallas 2007, pet. denied).

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — PAGE6 28053.003
Motion for Summary Judgment - Page 6
14. Plaintiff seeks a judgment from this Court declaring that Windspeed assumed the

Note executed by ACET Global, LLC payable to ACET Venture Partners and that Windspeed

assumed the Security Agreement executed by Baymark ACET Holdco, LLC granting ACET

Venture Partners a 59% security interest in membership interest of ACET Global, LLC. See

Petition, §J 17, 18, 33. Plaintiff seeks this relief based on its allegation that under the Security

Agreement, “[u]pon any Fundamental Transaction, the successor entity to such Fundamental

Transaction [here, Windspeed Trading, LLC] shall succeed to, and be substituted for ... and shall

assume all of the obligations of the Maker under this Note with the same effect as if such successor

Person had been named as the Maker herein.” Petition, | 33. However, Windspeed was not a

party to the Note or the Security Agreement in question, nor was Windspeed an assignee or the

transferee of the original maker, i.e., ACET Global, LLC and Baymark ACET Holdco, LLC. See

Exhibits A, A-3, A-4. Thus, Windspeed is not a “successor entity”, and Plaintiff is not entitled the

declaratory relief Plaintiff seeks.

15. Furthermore, Plaintiffs claim fails because no Fundamental Transaction occurred.

The definition of “Fundamental Transaction” in the Note requires that “Maker”, or ACET Global,

LLC, be involved in the Fundamental Transaction. ACET Global, LLC, was not a party to the

sale of the assets to Windspeed. It would not be possible for ACET Global, LLC, to consummate

a Fundamental Transaction involving the assets because it no longer owned the assets when they

were sold to Windspeed. See Exhibits A, A-3, A-4. There was no asset transfer of any kind from

ACET Global, LLC to Windspeed. /d. All assets formerly owned by ACET Global, LLC, were

purchased directly from the lender Super G Capital, LLC (“Super G”) pursuant to a foreclosure

sale of such assets after ACET Global, LLC, defaulted on its loan with Super G. /d. Super G

specifically states in the Foreclosure Sale Agreement that it has title to the assets. See Exhibit A-

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — PAGE7 28053.003
Motion for Summary Judgment - Page 7
4, § 5.1(b). Therefore, no “Fundamental Transaction” occurred. This claim fails as a matter of

law.

C. TUFTA
Plaintiff’s Claim under TUFTA Fails as a Matter of Law

16. Plaintiff alleges Windspeed violated the Texas Uniform Fraudulent Transfer Act

(“TUFTA”) “by transferring substantially all of the assets of ACET Global to Windspeed Trading,

LLC.” Petition, 46. Not only are Plaintiff's allegations incorrect, but Plaintiff’s claim also fails

because Windspeed took the assets in good faith and for a reasonably equivalent value.

17. “TUFTA’s purpose is to prevent debtors from prejudicing creditors by improperly

moving assets beyond their reach.” Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 566 (Tex.

2016). “Under TUFTA, a transfer made with actual or constructive intent to defraud any creditor

may be avoided to the extent necessary to satisfy the creditor's claims:

a. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor
... if the debtor made the transfer or incurred the obligation:
b with actual intent to hinder, delay, or defraud any creditor of the debtor; or
without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor:
1 was engaged or was about to engage in a business or a transaction for
which the remaining assets of the debtor were unreasonably small in
relation to the business or transaction; or
AL, intended to incur, or believed or reasonably should have believed that
the debtor would incur, debts beyond the debtor's ability to pay as they
became due.” J/d.; citing Tex. Bus. & Comm. Code §§ 24.005(a),
25,006(a).
18. TUFTA provides a transfer of property made with the actual intent to hinder, delay,

or defraud creditors is not voidable “against a person who took in good faith and for a reasonably

equivalent value or against any subsequent transferee or obligee.” Tex. Bus. & Comm. Code §

24.009(a). “In fact, if a reasonable equivalent has been given in good faith for a transfer or

obligation the transferee has a complete defense although the debtor is shown to have intended to

hinder, delay, or defraud creditors.” Janvey, 487 S.W.3d at 573 (internal quotation removed).

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — PAGE 8 28053.003
Motion for Summary Judgment - Page 8
19. Under TUFTA, “a person gives a reasonably equivalent value if the person acquires

an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure

sale or execution of a power of sale for the acquisition or disposition of the interest of the debtor

upon default under a mortgage, deed of trust, or security agreement.” Tex. Bus. & Comm. Code

§ 24.004(b). As set forth above, such is the case here. All assets formerly owned by ACET Global,

LLC, were purchased directly from the lender Super G pursuant to a foreclosure sale of such assets

after ACET Global, LLC, defaulted on its loan with Super G. Therefore, Windspeed is given the

presumption under the statute that it gave reasonably equivalent value.”

20. The Texas Supreme Court has also “concluded that TUFTA’s ‘reasonably

equivalent value’ requirement can be satisfied with evidence that the transferee (1) fully performed

under a lawful, arms-length contract for fair market value, (2) provided consideration that had

objective value at the time of the transaction, and (3) made the exchange in the ordinary course of

the transferee’s business.” Osadon v. C&N Renovation, Inc., No. 05-17-00453-CV, 2018 WL

2126821, at *4 (Tex. App.—Dallas May 9, 2018, pet. denied) (mem. op.) (citing Janvey, 487

S.W.3d at 564; Tex. Bus. & Comm. Code § 24.004(d)).

21. Windspeed did not receive the transfer of any assets from any of the other

Defendants. Rather, as evidenced by the Bill of Sale executed March 1, 2019, Windspeed received

the assets from Super G, upon foreclosure on the assets of ACET Global, LLC. See Exhibit A-3,

Bill of Sale. The assets detailed in the Bill of Sale are those secured by the Business Loan and

Security Agreement (the “ACET Security Agreement’) dated July 20, 2017 executed by ACET

? Additionally, Plaintiff has not made any claims against Super G, who is part of the chainof title of the assets. Plaintiff
presumably admits that foreclosure of the assets completed by Super G was legitimate while alleging that everything
else was not. It can be r nably concluded that because Super G’s foreclosure was legitimate, then anything that
followed does not matter because the subsequent transfer by Super G would be lawful.
DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — Pace9 28053.003
Motion for Summary Judgment - Page 9
Global, LLC, as debtor, to Super G, as creditor. See Exhibit A-4, Foreclosure Sale Agreement.

Windspeed agreed to purchase the assets secured by the ACET Security Agreement from Super G

in a private sale after Super G elected to conduct a foreclosure sale of the secured collateral. /d.,

pp. 1-2. As part of the purchase of the assets from Super G, Windspeed executed the Amended

and Restated Loan & Security Agreement (“Windspeed Loan Agreement”) evidencing the loan

amount of $514,144.86 payable to Super G. See Exhibit A-4, pp 8-9: see also Exhibit A-5,

Amended and Restated Loan & Security Agreement.

22. Not only is Windspeed not a transferee or assignee of ACET Global, LLC, but

Windspeed is a good faith purchaser for reasonably equivalent value. Windspeed purchased the

assets from Super G for the purchase price of $516,844.86 and executed the Windspeed Loan

Agreement contemporaneously with the closing. See Exhibit A-4, p. 6, “Purchase Price.”

Therefore, Plaintiff's TUFTA claim against Windspeed fails as a matter of law and should be

dismissed. Janvey, 487 S.W.3d at 573 (TUFTA protects “transferees who took in good faith and

for reasonably equivalent value”).

D. Civil Conspiracy
Any Claim for Civil Conspiracy against Windspeed Fails as a Matter of Law

23. Plaintiff brings a claim against “Defendants” for civil conspiracy. Petition, pp. 14-

15. Although not entirely clear if this claim is brought against Windspeed, any claim for civil

conspiracy against Windspeed would also fail as a matter of law.

24. To prevail on its civil conspiracy claim, Plaintiff must establish the following

essential elements: “(1) a combination of two or more persons; (2) an object to be accomplished

(an unlawful purpose or a lawful purpose by unlawful means) (3) a meeting of minds on the object

or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.”

Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex.1998); see also Ernst & Young,

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE,
MOTION FOR SUMMARY JUDGMENT — Pace 10 28053.003
Motion for Summary Judgment - Page 10
L.L.P. v. Pacific Mut. Life Ins. Co., 51 $.W.3d 573, 583 (Tex.2001). As detailed herein,

Windspeed purchased the assets from Super G as a good faith purchaser for value upon the

foreclosure of Super G’s secured loan. Consequently, Windspeed did not commit an unlawful,

overt act. Nor did Windspeed have a meeting of the minds with ACET Global, LLC or the other

Defendants on the object or course of action to the detriment of Plaintiff. Plaintiff cannot establish

any of the elements ofa civil conspiracy as it pertains to Windspeed. As a result, any claim for

civil conspiracy against Windspeed fails as a matter of law.

E. No-Evidence Summary Judgment Standard

25. The Texas Rules of Civil Procedure provide that “a party without presenting

summary judgment evidence may move for summary judgment on the ground that there is no

evidence of one or more essential elements of a claim or defense on which an adverse party would

have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). Rule 166a(i) further provides that the

motion “must state the elements as to which there is no evidence” and “[t]he court must grant the

motion unless the respondent produces summary judgment evidence raising a genuine issue of

material fact.”

26. The Texas Supreme Court has held that a Texas Court must grant a party’s motion

for summary judgment when “(a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or

(d) the evidence conclusively establishes the opposite of the vital fact.” Merrell Dow Pharm., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citation omitted).

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — Pace 11 28053.003
Motion for Summary Judgment - Page 11
F. Declaratory Judgment
Plaintiff’s Declaratory Judgment Against Windspeed Must be Denied

27. Plaintiff's request for a declaratory judgment that Windspeed assumed all

obligations under the Note and Security Agreement should also be denied under the no-evidence

standard. See Petition, § 33; Tex. Civ. Prac. & Rem. Code § 37.004(a). Windspeed was not a

party to the Note or Security Agreement payable to ACET Venture Partners, LLC, and was not an

assignee or transferee of ACET Global, LLC or Baymark ACET Holdco, LLC. Thus, Plaintiff has

no evidence that Windspeed is the successor entity to such “Fundamental Transaction” under the

Security Agreement. Merrell Dow Pharm., Inc., 953 S.W.2d, at 711. Plaintiff's claim for relief

under the Uniform Declaratory Judgment Act fails for this reason, as well.

G. TUFTA
Plaintiff's TUFTA Claim Fails Under No-Evidence Standard

28. Plaintiff's TUFTA claim also fails under the no-evidence summary judgment

standard because Plaintiff cannot prove the elements of its TUFTA claim. This is because Plaintiff

cannot prove Windspeed was a transferee from any of the Defendants. Moreover, Plaintiff cannot

prove Windspeed did not take in good faith or for a reasonably equivalent value. Janvey, 487

S.W.3d at 566; Tex. Bus. & Comm. Code § 24.005(a)(2). Plaintiff's TUFTA claim fails for this

reason, as well.

H. Civil Conspiracy
Any Claim for Civil Conspiracy against Windspeed Fails as a Matter of Law

29. Plaintiff's civil conspiracy claim against Windspeed also fails under the no-

evidence standard. Plaintiff has no evidence of a meeting of minds on the object or course of

action between Windspeed and the other defendants nor does Plaintiff have any evidence that

Windspeed committed one or more unlawful, overt acts. Insurance Co. of N. Am., 981 S.W.2d, at

675. Accordingly, any claim for civil conspiracy against Windspeed also fails for this reason.

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — Pace 12 28053.003
Motion for Summary Judgment - Page 12
VI.

CONCLUSION

30. For all of the foregoing reasons, Windspeed’s Traditional and No Evidence Motion

for Summary Judgment should be granted and, therefore, all of Plaintiff's claims against it should

be dismissed as a matter of law.

Respectfully submitted,

HIGIER ALLEN & LAUTIN, P.C.

By: 4s/ Brenda A. Hard-Wilson
TIMOTHY P. WOODS
State Bar No. 21965500
twoods@higierallen.com
BRENDA A. HARD-WILSON
State Bar No. 24059893
bhard-wilson@higierallen.com
The Tower at Cityplace
2711 N. Haskell Ave., Suite 2400
Dallas, Texas 75204
(972) 716-1888
(972) 716-1899 Telecopy

ATTORNEYS FOR DEFENDANT
WINDSPEED TRADING, LLC

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — Pace 13 28053.003
Motion for Summary Judgment - Page 13
CERTIFICATE OF SERVICE

On the 11th day of December 2020, the foregoing instrument was sent via e-service to the
following:

Jason B. Freeman Edward P. Perrin, Jr.
Ryan C. Dean Jennifer R. Poe
Freeman Law, PLLC Hallett & Perrin
2595 Dallas Parkway, Suite 420 1445 Ross Avenue, Suite 2400
Frisco, Texas 75034 Dallas, TX 75202
E-Mail: Jason@freemanlaw-pllc.com E-Mail: EPerrin@hallettperrin.com
ATTORNEY FOR PLAINTIFF ATTORNEY FOR DEFENDANTS
ACET GLOBAL, LLC,
BAYMARK ACET HOLDCO, LLC
BAYMARK ACET DIRECT INVEST,
LLC,
BAYMARK MANAGEMENT, LLC,
BAYMARK PARTNERS, DAVID
HOOK,
AND TONY LUDLOW

/s/ Brenda A. Hard-Wilson
Counsel for Defendant

DEFENDANT WINDSPEED TRADING, LLC’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT — Pace 14 28053.003
Motion for Summary Judgment - Page 14
Exhibit A

Motion for Summary Judgment - Page 15
CASE NO. DC-19-09828

D&T PARTNERS, LLC (successor in interest IN THE DISTRICT COURT
to ACET VENTURE PARTNERS, LLC),

Plaintiff,

x, DALLAS COUNTY, TEXAS

ACET GLOBAL, LLC
BAYMARK ACET HOLDCO, LLC,
BAYMARK ACET DIRECT INVEST, LLC,
BAYMARK MANAGEMENT, LLC,
BAYMARK PARTNERS,
DAVID HOOK, TONY LUDLOW, and
WINDSPEED TRADING, LLC,

Defendants. 116™ JUDICIAL DISTRICT

AFFIDAVIT OF WILLIAM C. SZETO
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

BEFORE ME personally appeared William C. Szeto, properly identified, who, upon being
duly sworn, did testify on his oath as to the following, according to his personal knowledge:

1 My name is William C. Szeto. I am a resident of Texas, and I currently office at Windspeed
Trading, LLC, 1761 International Parkway, Suite 133, Richardson, Texas 75081. I have
personal knowledge of the facts stated below, and they are true and correct.

Lam the President & Chief Executive Officer of Windspeed Trading, LLC (“Windspeed”).
Windspeed is a Defendant in the lawsuit filed as Cause No. DC-19-09828 in the 116%
District Court, Dallas County, Texas.

I was involved in the formation of Windspeed and am the 100% owner in Windspeed.
There is no other owner of Windspeed. A true and correct copy of the Certificate of
Formation filed in the Office of the Secretary of State of Texas is attached hereto and
incorporated by reference as Exhibit A-1.
Baymark Partners Management, LLC owns a warrant to purchase a 40% interest in
Windspeed, which it has not exercised. Baymark Partners Management, LLC has a right
to appoint a manager to Windspeed’s board of managers. Anthony Ludlow is Baymark
Partners Management, LLC’s appointee to the board, However, I am the 100% owner in
Windspeed and there are a total of three managers on Windspeed’s board. A true and
correct copy of the Amended and Restated Company Agreement of Windspeed is attached
hereto and incorporated by reference as Exhibit A-2.

AFFIDAVIT OF WILLIAM C, SZETO, PAGE | -003
Motion for Summary Judgment - Page 16
On or about March 1, 2019, Super G Capital, LLC (“Super G”) executed a Bill of Sale
evidencing the sale, assignment, transfer, and delivery of Super G’s interest in the assets
listed in the Bill of Sale to Windspeed. These assets were purchased by Windspeed from
Super G after Super G elected to conduct a foreclosure sale of the assets listed. A true and
correct copy of the Bill of Sale is attached hereto and incorporated by reference as Exhibit
A-3.

On or about March 1, 2019, Windspeed, as Buyer, and Super G, as Seller, executed that
certain Foreclosure Sale Agreement evidencing the foreclosure of Super G’s security
interest in ACET Global, LLC’s assets previously secured as collateral for a Business Loan
and Security Agreement and the transfer of that collateral from Super G to Windspeed. A
true and correct copy of the Foreclosure Sale Agreement is attached hereto and
incorporated by reference as Exhibit A-4.

On or about March 1, 2019, Windspeed executed that certain Amended and Restated
Business Loan & Security Agreement evidencing a debt payable to Super G in the amount
of $514,144.86 for the assets that were transferred from Super G to Windspeed in the Bill
of Sale. Windspeed purchased the assets from Super G for the purchase price of
$516,844.86 and executed the Amended and Restated Business Loan & Security
Agreement contemporaneously with the closing. A true and correct copy of the Amended
and Restated Business Loan & Security Agreement is attached hereto and incorporated by
reference as Exhibit A-5.

Windspeed purchased all assets formerly owned by ACET Global, LLC directly from the
lender Super G pursuant to a foreclosure sale of such assets after ACET Global, LLC
defaulted on its loan with Super G. Windspeed is not a transferee or assignee of ACET
Global, LLC.

Windspeed was not a party to the Note or Security Instrument executed by ACET Global,
LLC and Baymark ACET Holdco, LLC, respectively, payable to ACET Venture Partners,
LLC, predecessor in interest to D&T Partners, LLC.

AFFIDAVIT OF WILLIAM C, SZETO, PAGE 2 2! -003
Motion for Summary Judgment - Page 17
10. Attached hereto as Exhibits A-1 through A-5 are documents kept by Windspeed in the
regular course of business. It was in the regular course of business for Windspeed or an
employee or representative of Windspeed with knowledge of the act, event or condition
recorded therein to make the record or to transmit information to be included in such
record; and the record was made at or near the time of the act, event, or condition recorded
therein, or reasonably soon thereafter. I have examined the originals of the exhibits, and
the attached copies are true and correct copies.

Willi c. Szeto, P.E,

Date: December / 7 , 2020

STATE OF TEXAS §
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SUBSCRIBED AND SWORN TO BEFORE ME, this! day of December 2020, to
certify which witness my hand and seal of office.

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AFFIDAVIT OF WILLIAM C, SZETO, PAGE 3 Motion for Summary Judgment
age 4G?
Exhibit A-1

Motion for Summary Judgment - Page 19
id A IP
Secretary of State Filed in the Office of the
P.O. Box 13697 Secretary of State of Texas
Austin, TX 78711-3697 ee Filing #: 803128716 09/27/2018
FAX: 512/463-5709 Document #: 839758460002
Certificate of Formation Image Generated Electronically
Filing Fee: $300 Limited Liability Company for Web Filing

Article 1 - Entity Name and Type
The filing entity being formed is a limited liability company. The name of the entity is:

Windspeed Trading, LLC
Article 2 —- Registered Agent and Registered Office
TA. The initial registered agent is an organization (cannot be company named above) by the name of:

OR
MB. The initial registered agent is an individual resident of the state whose name is set forth below:
Name:
Alexander M. Szeto
C. The business address of the registered agent and the registered office address is:
Street Address:
2711 N. Haskell Ave., Suite 2400 Dallas TX 75204
Consent of Registered Agent
TA. A copy of the consent of registered agent is attached.
OR
MB. The consent of the registered agent is maintained by the entity.
Article 3 - Governing Authority
MA. The limited liability company is to be managed by managers.
OR
[B. The limited liability company will not have managers. Management of the company is reserved to the members.
The names and addresses of the governing persons are set forth below:
Manager 1: William Szeto Title: Manager
Address: 3408 Provine Road McKinney TX, USA 75072
Article 4 - Purpose
The purpose for which the company is organized is for the transaction of any and all lawful business for which limited
liability companies may be organized under the Texas Business Organizations Code.

Motion for Summary Judgment - Page 20
A. Indemnification

Windspeed Trading, LLC (the "Company") shall indemnify and hold harmless the
members, managers, officers, agents and other persons acting on behalf of the
Company at the request of any member, manager or officer to the fullest extent
allowed by the Texas Business Organizations Code or any other applicable law.

B. Interested Parties

A contract or transaction between the Company and any other Person (as used
herein, the term "Person" means an individual, firm, trust, estate, partnership,
joint venture, association, corporation, political subdivision or
instrumentality, or other entity) shall not be affected or invalidated by the
fact that (i) any manager, officer, or member of the Company is also a party to,
or has a direct or indirect interest in, such contract or transaction; or (ii)
any manager, officer or member of the Company is in any way connected with the
other party to such contract or transaction, or with any of its equity or debt
holders, officers, managers or owners.

Every Person who may become a manager of the Company is hereby relieved from any
liability that might otherwise exist from contracting with the Company for the
benefit of himself, herself or itself, or of any Person in which he, she or it
has any interest, whether or not the interested manager's presence at a meeting
or his, her or its vote or written consent was necessary to obligate the Company
in such transaction, if such interest shall have been disclosed to, or known
to, the Company's managers or members who shall have approved such transaction.

C. Limitation of Liability

To the greatest extent permitted by the Texas Business Organizations Code, no
manager or officer of the Company will be liable to the Company or the members
for monetary damages for, based on or resulting from any act or omission by such
manager or officer in such Person’s respective capacity or capacities, except
for one or more of the following: (i) a breach of duty of loyalty to the Company
or the members; (ii) acts or omissions not in good faith that (A) constitutes a
breach of duty of such manager or officer to the Company or (B) involves
intentional misconduct or knowing violation of law; (iii) a transaction from
which such manager or officer received an improper benefit, regardless of
whether the benefit resulted from an action taken within the scope of such
manager’s or officer’s duties; or (iv) an act or omission for which the
liability of the managers and officers is expressly provided by Texas law.
[The attached addendum, if any, is incorporated herein by reference]

Organizer
The name and address of the organizer are set forth below.
Alexander M. Szeto 2711N. Haskell Ave., Suite 2400, Dallas, Texas 75204

MA. This document becomes effective when the document is filed by the secretary of state.
OR

Motion for Summary Judgment - Page 21
TB. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its
signing. The delayed effective date is:
Execution
The undersigned affirms that the person designated as registered agent has consented to the appointment. The
undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or
fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of
law governing the entity to execute the filing instrument.
Alexander M. Szeto
Signature of Organizer
FILING OFFICE COPY

Motion for Summary Judgment - Page 22
Exhibit A-2

Motion for Summary Judgment - Page 23
Execution Version

AMENDED AND RESTATED COMPANY AGREEMENT

WINDSPEED TRADING, LLC

A TEXAS LIMITED LIABILITY COMPANY

DATED OCTOBER 18, 2018

Motion for Summary Judgment - Page 24
TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS
1.1 Definitions
1.2 Section References
ARTICLE 2 FORMATION OF THE COMPANY
2.1 Name and Formation
2.2. Principal Place of Business
2.3 Registered Office and Registered Agent
2.4 Purposes and Powers
2.5 Nature of Interests
ARTICLE 3 RIGHTS AND DUTIES OF MANAGERS; OFFICERS
Sel Duties of Board of Managers
3.2. No Control by Member:
3.3 Number
3.4 Appointment
3.5 Current Board of Managers
3.6 Removal of Managers
3.7 Vacanciess ee
3.8 Management of the Company
3.9. Payment of Costs and Expenses
3.10 Manager Expenses ...
3.11 Meetings of the Board ‘ofManagers.
3.12 Action Without a Meeting
3.13 Adjournment
3.14. Inspection of Books and Records
SelD Officers
ARTICLE 4 INDEMNIFICATION OF MANAGERS AND OFFICERS 10
4.1 Exculpation 10
42 Right to Indemnificatio 10
43 Procedure to be Followed 11
44 Payment of Expenses in Advance 11
45 Other Rights 11
4.6 Insurance 11
47 Severabilit 11
4.8 Appearance as a Witness or Otherwise 11
ARTICLE 5 MEMBERS: MEETINGS OF MEMBERS 11
5.1 Meetings of the Members 11
See, Voting .. 12
5.3 Vote by Proxy ... 12
5.4 Conduct ofMeeting 12
Ss) Action Without a Meeting 12
5.6 Registered Members 12
5.7. Confidentiality. 12

Case Info

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PARKER, TONYA Track Judge’s New Case

Case No.

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Document Filed Date

December 11, 2020

Case Filing Date

July 12, 2019

County

Parties

ACET GLOBAL, LLC Defendant
BAYMARK ACET DIRECT INVEST, LLC Defendant
BAYMARK ACET HOLDCO, LLC Defendant
BAYMARK MANAGEMENT, LLC Defendant
BAYMARK PARTNERS Defendant
D&T PARTNERS, LLC Plaintiff
FREEMAN, JASON B. Attorney for the Plaintiff
HARD-WILSON, BRENDA A. Attorney for the Defendant
HOOK, DAVID Defendant
LUDLOW, TONY Defendant
PERRIN, EDWARD P, Jr Attorney for the Defendant
PERRIN, EDWARD P, Jr. Attorney for the Defendant
WINDSPEED TRADING, LLC Defendant
WOODS, TIMOTHY P Attorney for the Defendant
Matthew Roberts Attorneys for Plaintiffs
Jennifer Poe Attorneys for Defendants
Ryan Dean Attorneys for Plaintiffs
Frank Corts Attorneys for Plaintiffs
Zachary Montgomery Attorney
Micah Miller Attorneys for Plaintiffs
Alexander Szeto Attorney
Michelle Shriro Attorneys for Defendants
Larry Levick Attorneys for Defendants
James Bradbury Attorney
Gregory Mitchell Attorneys for Plaintiffs

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Motion,Ex Parte: D&T PARTNERS, LLC vs. ACET GLOBAL, LLC, et al

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