United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
the Court is plaintiff Capital Development Affiliates,
LLC's, amended motion for summary judgment (Dkt. # 16).
purposes of summary judgment, the following facts are
undisputed: plaintiff is a limited liability company
organized and existing under the laws of the State of New
York. Dkt. # 16-3, at 1. Defendant Zeland Benjamin Thigpen
III is a resident of the State of Oklahoma. Id.
Defendant and his wife, Cheryl Thigpen, were the sole members
of Julimar Trading, LLC (Julimar), a now defunct company that
conducted business “in the international purchase and
sale of industrial metallic alloys.” Id.; Dkt.
# 7, at 4.
around 2014, Julimar and ICD Metals, LLC (ICD Metals)-a
company affiliated with plaintiff through common
ownership-had a business relationship; Julimar identified
opportunities for the purchase and resale of metallic alloys,
and, as an August 15, 2014 joint venture agreement between
Julimar and ICD Metals states, ICD Metals had the
“right of first refusal” to finance these
opportunities. Id.; Dkt. # 33, at 52. On or about
June 26, 2015, Julimar, as security for its existing or
thereafter arising indebtedness, executed a security
agreement (the agreement) wherein it, inter
alia, granted ICD Metals a security interest in
Julimar's right, title, and interest in certain property.
Dkt. # 16-3 at 2, 8-16. At some time prior, Julimar became
indebted to ICD Metals for outstanding accounts receivable in
the amount of $2, 933, 356. Id. at 2-3.
evidence its indebtedness to ICD Metals, on or about
September 30, 2015, Julimar executed and delivered to ICD
Metals a demand note, wherein Julimar acknowledged its
obligation to pay ICD Metals the principal sum of $2, 933,
356 (due and payable on demand) together with interest at the
rate of 12% per annum calculated on the basis of a 360 day
year (12 months of 30 days each) (interest rate).
Id. at 3, 18-22. Under the demand note, Julimar is
obligated to make interest payments, with any payment of
principal, on the first day of each month beginning October
1, 2015. Id. at 3. In addition, the demand note
provides for late payment charges of 5% of any interest or
required principal payment made more than ten days after the
due date of such payment. Id. And, “upon the
stated or accelerated maturity” of the demand note, it
bears interest at a per annum rate of 5% in excess of the
interest rate until the principal is fully paid.
Id. The demand note also provides that, should
the indebtedness it represents be collected at law, plaintiff
is entitled to all costs of collection, including reasonable
attorney fees and expenses. Id. at 20.
or about September 30, 2015, defendant executed and delivered
a guaranty to ICD Metals wherein he, inter alia,
guaranteed the punctual and full payment of all present and
future indebtedness, liabilities, and obligations of Julimar
to ICD Metals. Id. at 3-4, 23-27. On or about
February 12, 2016, defendant executed and delivered an
amended and restated guaranty agreeing to same. Id.
at 3-4, 39-53. The amended guaranty contains the following
Guaranty. Guarantor hereby unconditionally,
directly and absolutely guarantees to Lender the payment and
performance of Borrower's Obligations. [...]
Nature of Guaranty. This Guaranty is an
absolute, unconditional, continuing, direct and immediate
guaranty of payment and not just of collection and is no way
conditioned upon or limited by or in any other way affected
(a) any attempt by Lender to pursue Lender's rights
against Borrower or any Obligor;
(b) any attempt by Lender to pursue Lender's rights
against any of Borrower's real or personal property or
any other Obligor's real or personal property;
(c) any recourse against or foreclosure of any security or
collateral now or hereafter pledged, assigned or granted to
Lender under the provisions of any of the loan documents;
(d) any action taken or not taken by Lender;
(e) the partial or complete unenforceability or invalidity of
any other guaranty or surety agreement, pledge, assignment or
other security ...