Preview
FILED
11/14/2022 5:01 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Cassandra Walker DEPUTY
CAUSE NO. DC-21-12578
TBK BANK, SSB, § IN THE DISTRICT COURT
§
Plaintiff,
V 101 JUDICIAL DISTRICT
IM SERVICES GROUP, LLC, K4
SERVICES LLC, and HENRY ALEC §
MCLARTY,
Defendants, DALLAS COUNTY, TEXAS
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY
JUDGMENT AGAINST HENRY ALEX MCLARTY
Plaintiff TBK Bank, SSB (“TBK”) files its Traditional Motion for Summary Judgment
(“Motion”) for its claim against Henry Alec McLarty and states as follows:
I SUMMARY OF MOTION
TBK sued three defendants for breach of contract and breach of guaranty agreements
arising out of a default on four loan agreements. The loan agreement debtor, Defendant IM
Services Group LLC, filed for bankruptcy. This Court has granted a motion for default judgment
against the only other guarantor, Defendant K4 Services LLC. Defendant Henry Alec McLarty
also executed an unconditional guaranty providing an assurance to pay any outstanding debts under
the loan agreements. That debt has come due. Neither the debtor nor the other guarantor has
satisfied it, and Mr. McLarty remains liable under a cut-and-dry unconditional guaranty. All
elements of TBK’s claim against Mr. McLarty for breach ofa guaranty agreement are conclusively
established. The Court, therefore, should grant this motion for traditional summary judgment
against Mr. McLarty for TBK’s claim of breach of an unconditional guaranty.
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 1 of 10
IL. FACTUAL BACKGROUND
A. Execution of the Loan Agreements.
On October 25, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant
to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan Agreement”). A
true and correct copy of the First Loan Agreement is attached hereto and incorporated herein as
Exhibit A-2. Under the terms of the First Loan Agreement, IM was obligated to pay regular
monthly payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per
annum, beginning December 1, 2019 and continuing each month until paid in full. Exhibit A-2
at 1. The First Loan Agreement provides, among other things, that IM’s failure to make any
payment when due is an event of default and that any payment overdue for more than ten days will
incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum
percentage permitted by applicable law. Exhibit A-2 at 1.
On December 4, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant
to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan Agreement”).
A true and correct copy of the Second Loan Agreement is attached hereto and incorporated herein
as Exhibit A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular
monthly payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per
annum, beginning January 15, 2020 and continuing each month until paid in full. Exhibit A-3 at
1. The Second Loan Agreement provides, among other things, that IM’s failure to make any
payment when due is an event of default and that any payment overdue for more than ten days will
incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum
percentage permitted by applicable law. Exhibit A-3 at 1.
On January 23, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant
to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan Agreement”). A
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 2 of 10
true and correct copy of the Third Loan Agreement is attached hereto and incorporated herein as
Exhibit A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular
monthly payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per
annum, beginning March 5, 2020 and continuing each month until paid in full. Exhibit A-4 at 1.
The Third Loan Agreement provides, among other things, that IM’s failure to make any payment
when due is an event of default and that any payment overdue for more than ten days will incur
late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum
percentage permitted by applicable law. Exhibit A-4 at 1.
On March 12, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant
to which TBK loaned IM the principal amount of $893,670.00 (the “Fourth Loan Agreement”). A
true and correct copy of the Fourth Loan Agreement is attached hereto and incorporated herein as
Exhibit A-5. Under the terms of the Fourth Loan Agreement, IM was obligated to pay regular
monthly payments of $28,212.80, plus all accrued and unpaid interest at the rate of 8.25% per
annum, beginning April 20, 2020 and continuing each month until paid in full. Exhibit A-5 at 1.
The Fourth Loan Agreement provides, among other things, that IM’s failure to make any payment
when due is an event of default and that any payment overdue for more than ten days will incur
late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum
percentage permitted by applicable law. Exhibit A-5 at 1. Exhibits A-2—A-5 are collectively
referred to as the “Loan Agreements.”
To secure IM’s indebtedness to TBK, Mr. McLarty executed an Unconditional Guaranty
for the benefit of TBK (the “Unconditional Guaranty”), guaranteeing the full amount owed by IM
to TBK under the Loan Agreements. A true and correct copy of the Unconditional Guaranty is
attached hereto as Exhibit A-1.
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 3 of 10
B Default under the Loan Agreements and Breach of the Guarantees.
Between April 20, 2021 and June 5, 2021, IM failed to deliver the required payments to
TBK when they became due under the terms of the Loan Agreements. Exhibit A 413.
Accordingly, IM is in default. TBK made a demand for payment from Defendants on May 28,
2021, and provided an opportunity to cure the defaults. A true and correct copy of the demand
letter is attached hereto as Exhibit A-6. Despite demand, IM has not made any further payments
due under the Loan Agreements. Exhibit A 413.
TBK repossessed the collateral securing the various loans provided under the Loan
Agreements from IM. Exhibit A §15. On July 7-9, 2021, that collateral was publically auctioned
for an aggregate amount of $1,645,000.00. Exhibit A 915. That amount was applied against IM’s
outstanding indebtedness to TBK. Exhibit A 415.
Cc. Filing of this Lawsuit.
On September 8, 2021, TBK filed suit against IM, K4, and Mr. McLarty, individually. Pls.’
Orig. Pet. at 1. No Defendant filed a timely answer after service of the petition. After review of
TBK’s motion for default judgment, the Court ordered interlocutory default judgment against IM
and K4 on November 17, 2021. IM declared Chapter 11 Bankruptcy in a Federal Bankruptcy
Court, in the District of Idaho on December 28, 2021. The Court issued an order granting TBK’s
motion for substituted service on Mr. McLarty and on April 28, 2022 TBK filed an Affidavit of
Service meeting the requirements of the Court’s Order for Substituted Service. On May 20, 2022,
Mr. McLarty finally appeared and filed a general denial.
As of October, 31, 2022 the principal, interest, late fees, pre-payment premiums, and costs
of collection due under the Loan Agreements is $1,148,429.58. Exhibit A 16. This figure does
not include any attorneys’ fees and collection costs incurred during the pendency of this lawsuit,
all of which are owed to TBK by Defendants.
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 4 of 10
Ii. SUMMARY JUDGMENT EVIDENCE
Plaintiff presents the following summary judgment evidence and incorporates the evidence
by reference pursuant to Texas Rule of Civil Procedure 166a(c):
Exhibit A: The sworn affidavit of Tulani M. Ruffin, dated November 14, 2022;
Exhibit A-1 A true and correct copy of an Unconditional Guaranty between
TBK Bank, SSB and Henry Alec McLarty, individually, dated
December 4, 2019.
Exhibit A-2 A true and correct copy of the First Loan Agreement between TBK
Bank, SSB and IM Services Group, LLC, dated October 25, 2019;
Exhibit A-3 A true and correct copy of the Second Loan Agreement between
TBK Bank, SSB and IM Services Group, LLC, dated December 4,
2019;
Exhibit A-4 A true and correct copy of the Third Loan Agreement between TBK
Bank, SSB and IM Services Group, LLC, dated January 23, 2020;
Exhibit A-5 A true and correct copy of the Fourth Loan Agreement between
TBK Bank, SSB and IM Services Group, LLC, dated March 12,
2020;
Exhibit A-6 A true and correct copy of the Notice of Default to IM Services
regarding the Loan Agreements, dated May 28, 2021; and
Exhibit B: The Declaration of Jonathan D. Neerman regarding reasonable and
necessary attorneys’ fees and costs, dated November 14, 2022; and
Exhibit B-1: Attorneys’ Fees Invoices from Jackson Walker L.L.P. to TBK.
Iv. ARGUMENT AND AUTHORITIES
Summary judgment is proper if no genuine issue as to any material fact exists and the
moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A Plaintiffis
entitled to summary judgment on a cause of action if it conclusively proves all essential elements
of its claim. Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). An
element is conclusively established if reasonable people could not differ as to the conclusion to be
drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 5 of 10
movant establishes a right to summary judgment, the nonmovant bears the burden to present
evidence raising an issue of material fact. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000)
A. The Summary Judgment Evidence Conclusively Establishes all Elements for Breach
of a Guaranty Against McLarty.
To recover on a breach of a unconditional guaranty agreement, the plaintiff must show (1)
the existence and ownership of the guaranty contract; (2) the performance of the underlying
contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4)
the guarantor's failure or refusal to perform the guaranty's promise. Rivero v. Blue Keel Funding,
L.L.C., 127 S.W.3d 421, 424 (Tex. App.—Dallas 2004, no pet.). TBK can conclusively establish
all four elements of this cause of action.
The first element of breach of a guaranty agreement is met because, a guaranty agreement
existed between Mr. McLarty and TBK Bank. See Exhibit A-1
UNCONDITIONAL GUARANTY
ane. or paluables consideration the feceipt of which iis here ‘by ss
here dto nd
as defined b
whether joint or several direct or indirect, absolute or contingent; matured or
unmatured, secured or unsecured; without reduction by reason of an m action
off off ms 0 oupmen
and ereafter unt
reditor actual receives written notice of termination of Guarantor's obligations hereunder and
same becomes effective as described in paragraph 5 below. y such notice of termination shall be
Exhibit A-1 at 1. On December 4, 2019 Henry Alec McLarty, as an individual, executed that
unconditional guaranty agreement.
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 6 of 10
Dated: DECEMBER 4, 2019 ,
Ai
]
16 BA Y PARK RD, EDISTO ISLAND, SC 29438
Exhibit A-1 at 5. Upon execution, Mr. McLarty “guaranteed to be primarily liable for the full,
complete, and prompt payment and performance of any and all present and future Obligations.”
Exhibit A-1 at 1. Provision 2 of Mr. McLarty’s Unconditional Guaranty defines the term
“obligations.” /d. Included in that definition is “Loan and Security Agreements, 9, any and all
interest, charges,” and “attorneys [sic] fees and costs.” Jd.
The second element of the cause of action was met when TBK, as creditor of IM, issued
funds to IM under the four Loan and Security Agreements, including the Second Loan Agreement
that TBK and IM executed on the same day that Mr. McLarty signed the Unconditional Guaranty.
Compare Exhibit A-1 at 1 and Exhibit A-2 at 5. TBK issued funds to IM pursuant to all of the
Loan and Security Agreements. Exhibit A 12.
TBK also meets the third element of breach of a guaranty which requires the occurrence of
the conditions upon which liability is based. The primary condition of Mr. McLarty’s
Unconditional Guaranty is that the guarantor “warrant[s] and agree[s] . . . to pay on demand all
sums due and/or to become due to Creditor arising out of Subject’s Obligations.” Exhibit A-1 at
1-2. IM has defaulted on its Loan and Security Agreements with TBK Bank. Exhibit A 413. As
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 7 of 10
of October 31, 2022, the sum of $1,148,429.58 was due and owing to TBK arising out of IM’s
loan and security agreements. Exhibit A 16.
Finally, TBK meets the fourth and final element of the breach of a guaranty agreement: the
guarantor's failure or refusal to perform the guaranty's promise. To date, Mr. McLarty has failed
to pay for any of the outstanding obligations that IM owes to TBK. Exhibit A 16. This is further
evidenced by Mr. McLarty’s general denial of TBK’s Original Petition. McLarty’s Answer at 1.
TBK’s summary judgment evidence conclusively establishes all elements for its claim of
breach of a guaranty agreement. Therefore, the Court should enter judgment granting Plaintiffs
claim against Defendant, Henry Alec McLarty, as a matter of law.
B TBK is Entitled to Attorneys’ Fees and Costs.
Under the terms of the Unconditional Guaranty, Mr. McLarty agreed to “pay on demand
all losses, costs, attorneys’ fees and expenses which may be suffered by Creditor by reason of
Subject’s default or default of any Guarantor hereunder in the enforcement of this Guaranty.”
Exhibit A-1 at 2. Additionally, because this is a suit on a written contract, TBK is entitled to
attorneys’ fees under Texas Civil Practice & Remedies Code § 38.001(8).
TBK was required to retain the services of Jackson Walker L.L.P. to collect the
indebtedness owed to it by Mr. McLarty. The declaration of attorney Jonathan D. Neerman
attesting to the reasonableness and necessity of TBK’s attorneys’ fees and costs is attached hereto
as Exhibit B. Mr. Neerman’s declaration and the invoices attached establish that as of October
31, 2022 TBK incurred $42,584.15 as reasonable and necessary attorneys’ fees and costs in
pursuing Mr. McLarty’s indebtedness. Exhibits B and B-1. TBK reserves the right to amend its
request for attorneys’ fees and costs associated with pursuing this motion, another other reasonably
necessary motions, finalizing any judgments, and opposing any appeals.
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 8 of 10
Cc. TBK is Entitled to Post-Judgment Interest.
A party to a contract action is entitled to post-judgment interest on all judgment amounts
at the lesser of (1) the rate specified in the contract or (2) 18% per year. Tex. Fin. Code § 304.002.
Interest rates on the Loan Agreements range from 7.25%-8.25%. Exhibits A-2-A-5. TBK,
therefore, is entitled to post-judgment interest at the rate specified in the four Loan Agreements.
PRAYER
WHEREFORE, Plaintiff prays that this Court enter summary judgment in favor of Plaintiff
for the amounts due and owing under the Loan Documents and Guarantees, plus pre-judgment and
post-judgment interest, attorneys’ fees, court costs, and such other further relief to which Plaintiff
may be justly entitled.
Respectfully submitted,
JACKSON WALKER L.L.P.
By: /s/Jonathan D. Neerman
Jonathan D. Neerman
State Bar No. 24037165
jneerman@jw.com
Matt M. Johnson
State Bar No. 24108781
mjohnson@jw.com
2323 Ross Ave., Suite 600
Dallas, TX 75201
(214) 953-6000
(214) 661-6828 — Fax
ATTORNEYS FOR PLAINTIFF
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 9 of 10
CERTIFICATE OF SERVICE
This is to certify that on November 14, 2022, a true and correct copy of the foregoing
instrument was served via electronic service upon all counsel of record.
/s/ Matt M. Johnson
Matt M. Johnson
PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 10 of 10
Exhibit A
CAUSE NO. DC-21-12578
'TBK BANK, SSB, IN THE DISTRICT COURT
Plaintiff,
101" JUDICIAL DISTRICT
IM SERVICES GROUP, LLC, K4
SERVICES LLC, and HENRY ALEC
MCLARTY,
Defendants. DALLAS COUNTY, TEXAS
AFFIDAVIT OF TULANI M. RUFFIN
STATE OF TEXAS §
COUNTY OF DALLAS §
1 My name is Tulani M, Ruffin. 1 am over the age of 21 and my work address is
12700 Park Central Drive, Suite 1700, Dallas, TX 75251 in the United States of America.
2. I am a duly authorized agent of TBK Bank, SSB (“TBK”). I submit this affidavit
in support of TBK’s Traditional Motion for Summary Judgment. I have personal knowledge of
the facts stated herein, and if called as a witness, could testify competently to such facts under
oath.
3 In my role, as Vice President
of TBK, I am a custodian of business records for TBK
and | am familiar with the manner in which TBK’s records are created and maintained by virtue
of my duties and responsibilities.
4 Attached hereto are six documents, comprising sixty-six (66) pages of records.
Exhibits A-I-A-6. Those exhibits ate exact duplicates of the original records (the “Records”).
5 The Records were made at or near the times of the acts, events, conditions, or
opinions set forth in the Records by, or from information transmitted by, persons with knowledge
AFFIDAVIT OF TULANI M. RUFFIN PAGEE
ofthe matters set forth in the Records. The Records were kept in the course of regularly conducted
activities, and it is the regular practice of TBK to make and keep the Records.
6. Between October 25, 2019, and March 12, 2020, TBK and Defendant IM Services
Group, LLC (“IM”) entered into four separate Loan and Security Agreements (the “Loan
Agreements”).
7
On October 25, 2019, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan
Agreement”). A true and correct copy of the First Loan Agreement is attached hereto as Exhibit
A-2. Under the terms of the First Loan Agreement, IM was obligated to pay regular monthly
payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per annum,
beginning December 1, 2019 and continuing each month until paid in full.
8 On December 4, 2019, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan
Agreement”). A true and correct copy of the Second Loan Agreement is attached hereto as Exhibit
A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular monthly
payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per annum,
beginning January 15, 2020 and continuing each month until paid in full.
9 On January 23, 2020, TBK and IM entered into a Loan and Security Agreement.
pursuant to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan
Agreement”). A true and correct copy of the Third Loan Agreement is attached hereto as Exhibit
A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular monthly
payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per annum,
beginning March 5, 2020 and continuing each month until paid in full.
AFFIDAVIT OF TULANI M. RUFFIN PAGE2
of the matters set forth in the Records, The Records were kept in the course of regularly conducted
activities, and it is the regular practice of TBK to make and keep the Records.
6. Between October 25, 2019, and March 12, 2020, TBK and Defendant IM Services
Group, LLC (“IM”) entered into four separate Loan and Security Agreements {the “Loan
Agreements”),
7 On October 25, 2019, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan
Agreement”), A true and correct copy of the First Loan Agreement is attached hereto as Exhibit
A-2, Under the terms of the First Loan Agreement, [M was obligated to pay regular monthly
payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per annum,
beginning December 1, 2019 and continuing each month until paid in full.
8 On December 4, 2019, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan
Agreement”). A true and correct copy of the Second Loan Agreement is attached hereto as Exhibit
A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular monthly
payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per annum,
beginning January 15, 2020 and continuing each month until paid in full.
9 On January 23, 2020, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan
Agreement”), A true and correct copy of the Third Loan Agreement is attached hereto as Exhibit
A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular monthly
payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per annum,
beginning March 5, 2020 and continuing each month until paid in full.
AFFIDAVIT OF TULANI M. RUFFIN PAGE 2
10. On March 12, 2020, TBK and IM entered into a Loan and Security Agreement,
pursuant to which TBK loaned IM the principal amount of $893,670.00 (the “Fourth Loan
Agreement”), A true and correct copy of the Fourth Loan Agreement is attached hereto as Exhibit
A-5. Under the terms of the Fourth Loan Agreement, IM was obligated to pay regular monthly
payments of $28,212.80, plus all accrued and unpaid interest at the rate of 8.25% per annum,
beginning April 20, 2020 and continuing each month until paid in full.
1. To secure IM’s indebtedness to TBK, Defendant Henry Alec McLarty executed an
Unconditional Guaranty for the benefit of TBK, guarantying the full amount owed by IM under
the Loan Agreements. A true and correct copy of the Unconditional Guaranty is attached hereto
as Exhibit A-1,
12. In total, TBK issued funds to IM pursuant the four Loan Agreements in the principal
amount of $3,267,043.45.
13. Between April 20, 2021 and June 5, 2021, IM failed to deliver the required
payments to TBK when they became due under the terms of the Loan Agreements.' TBK made a
demand for payment on May 28, 2021, and provided an opportunity to cure the defaults. A true
and correct copy of the May 28, 2021 demand for payment is attached hereto as Exhibit A-6.
Despite demand, IM has not made any further payments due under the Loan Agreements.
14, The Loan Agreements provide, among other things, that IM’s failure to make any
payment when due is an event of default and that any payment overdue for more than ten days will
incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum
percentage permitted by applicable law.
' Specifically, IM failed to make the payment due to TBK on June 1, 2021, pursuant to the First Loan Agreement; IM
failed to make the payment due to TBK on May 15, 2021, pursuant
to the Second Loan Agreement; IM failed to make
the payment due to TBK on June 5, 2021, pursuant to the Third Loan Agreement; and [M failedto make the payment
due to TBK on April 20, 2021, pursuant to the Fourth Loan Agreement.
AFFIDAVIT OF TULANI M. RUFFIN PAGE3
15. As a result of default, TBK repossessed the collateral securing the various loans
provided under the Loan Agreements, On July 7-9, 2021, that collateral was publically auctioned
for an aggregate amount of $1,645,000.00. That amount was applied against IM’s outstanding
indebtedness to TBK.
16. The deficiency remaining as of October 31, 2022, after all payments, offsets ,or
credits due to IM have been accounted for is $1,148,429.58, which includes the principal, interest,
late fees, and pre-payment premiums due under the Loan Agreements. Mr. McLarty has not
individually repaid any portion ofthe debt he personally guaranteed to TBK.
17. TBK has been forced to hire Jackson Walker LLP to represent it in this matter and
has incurred and continues to incur attommeys’ fees prosecuting this cause of action.
18. I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge.
FURTHER AFFIANT SAYETH NAUGHT.
AY.7
EXECUTED this _/ 4 day of November
YY ralli M. Ruffin
bu(ff
SUBSCRIBED AND SWORN to before me, this 4%. of November 2022
Notary Public, tate of, ALA
©
Carole L Gray
My \mission Expires
06/0/2024
ID No 3814206
AFFIDAVIT OF TULANI M. RUFFIN PAGE 4
Exhibit A-1
Seeeeeeeeacieeees
UNCONDITIONAL GUARANTY
aos TBE Bank, SSB (“Creditor”)
(“Subject”)
1, For valuable consideration the receipt of which is hereby acknowledged, each of the
ts
undersigned (hereinafter referred to as “Guarantor(s)"), joint! and severally, absolutely and
unconditionally guarantees and agrees to be primarily liable ir the full, complete, and pr
er
gtunmatured,
ment and performance of any and all present and future Obligations (as defined bek low)of
ject to Creditor, whether joint or several, direct or indirect, absolute or contingent, matured
secured or unsecured; without reduction by reason of any claims, causes of action,
or
abatements, defenses, setoffs, offsets, counterclaims or recoupments. This is a continuing guaranty
which shall remain in full force and effect, regardless of the death or dissolution of Guarantor(s),
until full and indefeasible pay nt and performance of all Obligations, and thereafter until
Creditor actually receives written notice of termination of Guarantor's obligations hereunder and
same becomes effective as described in paragraph 5 below. Any such notice of termination shall be
effective only as to Obligations and transactions arising, incurred or created after Creditor’s receipt
of such termination. This guaranty is a g1 of payment and formance not merely a
of collection and is unconditional and absolute. Each of the Guarantors hereunder
Tepresent(s), warrant(s) and agree(s), that Guarantors’ liability to Creditor hereunder is direct and
unconditional and may be enforced against Guarantors without Creditor’s prior resort to any other
ight, remedy or sect
any Security (defined and shall continue notwithstanding any repossession or other disposition
below) regardless of whether same may constitute an election of remedies
Subject, without Creditor first having to proceed against Subject or to liquidate an:
Obligations of Subject or any property, collateral or security (“Security”) securing Subje
Obligations, and irrespective of any invalidity, illegality, illegitimacy or unenforceability of any
such Obligation or the insuffici , invalidity or unenforceability of an Security of any such
dt
Obligations. Guarantor agrees to be liable for the prompt, punctual anc full payment to Creditor,
on demand, in legal tender of the United States of America, for the Obligations (defined below) of
the Subject to Creditor, and the full and complete performance of any and all Obligations of the
Subject on the terms and conditions
set forth
in this Guaranty.
2. The term “Obligations” is used in its most comprehensive sense and shall mean and
include all obligations and indebtedness of Subject to Creditor including, without limitation: (i)
indebtedness, debts, now existing or hereinafter incurred or created, including, without limitation,
Loan and Security Agreements, loans, leases, advances, payments, extensions of credit,
endorsements, promisso notes, credit agreements, loan agreements, guarantees, security
agreements, mortgages, deeds of trust, swap agreements, overdraft indebtedness, and liabilities
and obligations of Subject, and any present or future amounts payable or owing under any loan
documents, benefits and any other cial accommodations, and all other instruments and
documents, previously, now or hereafter made, granted or extended by Creditor to or on account
of Subject or which Creditor has or will make, grant or extend to or for the account of Subject; and
(ii) any and all interest, charges, late charges, default interest, attorneys fees and costs
expenses hereto and/or hereafter chargeable against or owing by Subject to Creditor or upon.
and/or in de btedness of any and
which Subject has and/or may be become liable as endorser or guarantor; and (iii) all obligations
every kind of Subject to Creditor or any of Creditor’s affiliates,
including but not limited to amounts due upon any notes or other obligations, given to or received
by Creditor or its affiliates, directly from Subject or acquired by Creditor or its affiliates
assignment, transfer or otherwise from any one or more third parties and whether or not presently
contemplated by the parties, now or in the future arising, existing, incurred, or owing to Creditor;
and whether any of ing are direct or indirect, contingent or absolute, matured or
unmatured and (iv) any and all renewals, accommodations, increases, modifications, extensions,
amendments, rewrites and/or increases, of any of the foregoing.
3, Creditormay, in its sole and absolute discretion, at any time and from time to time,
without notice to or t consent of Guarantors and without affecting, releasing or impairing the
obligation of any Guarantor hereunder, do any of the following: (i) grant any accommodation,
renew, increase, extend (including extensions beyond the original term of the respective
instrument) any of the Obligations; (ii) modify any of the Obligations in any manner including
increasing the interest rate charged and the amount or timing of any inst: iments due or to
become due under the Obligations; (iii) release or discharge any Obligations of Subject, of co-
guarantors or of any other party at any time directly or contingently liable for the payment or
performance of any of said Obligations (whether hereunder or under a separate agreement); (iv)
accept partial payments of said Obligations; (v) accept new or additional documents, instruments
or agreements relating to or in substitution of said Obligations; (vi) compromise, settle, release (by
operation of law or otherwise), collect or liquidate any of said Obligations and/or the security
thereunderin any manner including controlling the order and manner of sale; (vii) consent to the
transfer or return of the security, take and hold additional security ot guarantees for said
Obligations; (viii) amend, exchange, release or waive any Security or guaranty; or (ix) bid and
purchase Security securing Subject’s Obligations at any public or private sale and apply the net
proceeds received to such Obligations,
4. Each of the Guarantors hereunder warrant and agree, {i) to pay on demand all sums due
Page 1 of 5 Printed: 12/4/2019 5:07:59 PM
and/or to hecome due to Creditor arising out of Subject’s Obligations; (ii) te pay on demand all
losses, co: attorneys' fees and expenses which may be suffered by Creditor by reason of Subject's
default or default of any Guarantor hereunder or in the enforcement of this Guaranty; (iii) to pay
on demand to Creditor any deficiency established by a liquidation of Subject’s Obligations or
Security securing Subj 's Obligations, with or without notice to any or all Guarantors; (vi) to
indemnify and hold Creditor harmless from and against any and all losses, liabilities and costs
caused by or arising from (in any way, directly or indirectly) any failure of Subject to fully,
promptly and completely satisfy the Obligations; and (v) that no Guarantor shall be released or
discharged, either in whole or in part, by Creditor’s failure or delay to perfect or continue the
perfection of any security interest/lien in any Security which secures the Obligations of Subject or
any Guarantorto Creditor, or to protect, preserve, maintain, recondition or liquidate the Security
covered by such security interest/lien or any waiver, subordination or release of any securit
interest/lien. Guarantor's liability to Creditor hereunder shall not be released, im ired or satisfied
for any reason until all Obligations of Subject have been fully and indefeasibly paid and
5. This Guaranty and the obligations hereunder shall not be terminated or be effected by
the death or dissolution of Guarantor(s). Any written notice of termination by Guarantor shall only
he effective upon receipt of written notice sent to Creditor by certified mail return recei
requested, naming a termination date effective not less than sixt 60 days after the receipt of such
notice by Creditor and shall only apply to Obligations incurred er the termination date. Such
notice will not be effective i) as to any Guarantor who has not given such notice or effect any
transaction, or ii) asto a1 and all Obligations entered into prior to the effective date of
th
termination, or iii) as to tl ie right of Creditor to collect any and ali Obligations, including without
limitation, interest, attorney's fees, costs and expenses arising after the termination date and
accruing on any Obligations incurred prior to the termination date.
6. Each of the Guarantors waives: (i) notice of acceptance, presentment, demand, protest
and notice of nonpayment or protest as to any note or Obligation; (ii) any and all rights
subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which any
Guarantor may now or hereafter have against Subject or any other person directly or contingently
liable for the Obligations guaranteed hereunder, or against or with respect to the Security and any
of Subject’s property (including without limitation, property collateralizing its Obligations to
Creditor), ari: the existence or performance of this Guaranty; (iii) to the extent permitted
by applicable law, all exemptions and homestead laws and any other demands and notices
required by law; (iv) all claims, causes of action, cross claims, offsets, defenses, setoffs and
Soe
counterclaims reviously existing or now or hereafter arising; (v) any and all defenses based on
di
any fiduciary luty or ip or any other applicable law, including without limitation all rights
and defenses arising out of (a) an election of remedies by Creditor even though that election of
remedies may have impaired rights ;: of Guarantor against Subject by operation of law or otherwise,
(b) protections afforded to Si ub; ject pursuant to bankruptcy, insolvency, antideficiency or similar
Jaws limiting 5b
or discharging Si ject's Obligations to Creditor, (c) the invalidity or unenforceability
of any of the Obligations or this guaranty, (d) the failure to notify any Guarantor of the disposition
of any Security, (e) the commercial reasonableness of any sale, liquidation or other disposition of
any Security or the impairment, however caused, of the value of such Security, (f) rights created or
conferred by any bankruptcy, extensions, stays, moratoria or other relief granted to Subject or any
Guarantor pursuant to any statute presently in force or hereafter enacted and (g)
Creditor's part, if any, to disclose to any Guarantor, any information, fact or thing rela
duty on
ted to the
business operations or condition of Subject’s Security, whether now or hereafter known; (h) am
right to require Creditor marshal assets or to proceed against Subject or any other guarantor. ch
and every waiver made herein by Guarantor is and shal] be construed as an absolute, irrevocable
itional waiver of the right waived. Payments received by Creditor from or on behalf of
Subject shall be solely for the benefit of Creditor and shall not benefit Guarantor..
7. Guarantor agrees that all present and future indebtedness of Subject to Guarantors are
reby subordinated to, assigned and transferred to Creditor and pledged and made se ity for
the Obligations, Guarantor shall have no right of subrogation against Subject unless and until this
agreement and the obligations of Subject is/are paid in full by Guarantor. If a claim is made upon
Creditor at any time for repayment or recovery of or to disgorge any sum(s) or other value received
by Creditor, from source, paid on account of any of the Obligations of Subject guaranteed
hereunder and Creditor disgorges, repays or ise becomes liable for all or any part of such
claim
by reason of: : (a) any judgment, decree or order of any court or administrative body having
ent isdiction; or (b) any settlement or compromise of any such claim; Guarantors shall
Creditorsotheand
remain
5
severall y liable to Creditor hereunder for the amount so re aid or for which
Twise liable to the same extent as if such amount(s) had never been received by
Creditor, and notwithstanding any termination hereof or the cancellation of any instrument
evidencing any of the Obligations, Guarantor acknowledges and agrees that Guarantor has the
knowledge and experience in financial and business matters to evaluate the risks of the business
transactions contemplated herein, is not in a disparate bargaining position relative to negotiating
this Guaranty and willingly waives and releases, without limitation, all rights and remedies
associated with the Texas Deceptive Trade Practices Act (“DTPA”) or such similar statute.
8. THE GUARANTOR REPRESENTS, WARRANTS AND UNDERSTANDS THAT
CREDITOR IS DETRIMENTALLY RELYING UPON THE GUARANTOR’S AGREEMENT AND
Page
2 of 5 Printed: 12/4/2019 5:07.59 PM
COMPLIANCE WITH EACH AND EVERY PROVISION CONTAINED HEREIN
AND, INTENDING THAT EACH AND EVERY PROVISION OF THIS AGREEMENT BE FULLY
EFFECTIVE AND ENFORCEABLE ACCORDING TO ITS TERMS, THE PARTIES AGREE
THAT ANY CLAIM, CONTROVERSY, DISPUTE, AND/OR THE VALIDITY,
ENFORCEABILITY AND EFFECTIVENESS OF EACH PROVISION HEREOF AND/OR THE
OBLIGATIONS OF THE GUARANTOR, AND THE RIGHTS AND REMEDIES OF THE
CREDITOR IN ANY WAY RELATED TO OR ARISING UNDER THIS GUARANTY OR UNDER
ONE OR MORE OBLIGATIONS OF SUBJECT TO CREDITOR AND THE RELATIONSHIP OF
THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES OR PROVISIONS THEREIN EXCEPT TO THE EXTENT THAT THE FEDERAL
LAWS OF THE UNITED STATES OF AMERICA OTHERWISE PREEMPT TEXAS LAW, IN
WHICH EVENT FEDERAL LAW SHALL CONTROL. GUARANTOR HEREBY IRREVOCABLY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS OF THE STATE OF TEXAS IN CONNECTION WITH ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE GUARANTY OR THE
OBLIGATIONS OR THE TRANSACTION OR TRANSACTIONS CONTEMPLATED HEREBY .
Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach
hereof, shall, if Creditor so elects, be instituted in any State or Fede Tal Court sitting in Dallas
County, Texas or, if none, any court sitting in the State of Texas (the “.‘oeceptable Forunty
Guarantor agrees that the Acceptable Forums are convenient to it, and s1 mits to the jurisdiction
of the Acceptable Forums and waives any and all objections to jurisdiction and/or based upon
venue or “ 1m Non conveniens” in connection with any such action or proceeding. Should such
proceeding be initiated in any other forum, Guarantor waives any right to oppose any motion or
application made by Creditor to transfer such proceeding to an Acceptable Forum. EACH PARTY
TO THIS GU. TY HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES ANY
RIGHT TO A TRIAL BY JURY FROM OR RELATING TO THEIR RELATIONSHIP, ANY
CLAIM, DEMAND, ACTION, CAUSE OF ACTION, CROSS CLAIM AND/OR
COUNTERCLAIM (a) ARISING UNDER THIS GUARANTY OR ANY OTHER OBLIGATION,
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
Preview
FILED 11/14/2022 5:01 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Cassandra Walker DEPUTY CAUSE NO. DC-21-12578 TBK BANK, SSB, § IN THE DISTRICT COURT § Plaintiff, V 101 JUDICIAL DISTRICT IM SERVICES GROUP, LLC, K4 SERVICES LLC, and HENRY ALEC § MCLARTY, Defendants, DALLAS COUNTY, TEXAS PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Plaintiff TBK Bank, SSB (“TBK”) files its Traditional Motion for Summary Judgment (“Motion”) for its claim against Henry Alec McLarty and states as follows: I SUMMARY OF MOTION TBK sued three defendants for breach of contract and breach of guaranty agreements arising out of a default on four loan agreements. The loan agreement debtor, Defendant IM Services Group LLC, filed for bankruptcy. This Court has granted a motion for default judgment against the only other guarantor, Defendant K4 Services LLC. Defendant Henry Alec McLarty also executed an unconditional guaranty providing an assurance to pay any outstanding debts under the loan agreements. That debt has come due. Neither the debtor nor the other guarantor has satisfied it, and Mr. McLarty remains liable under a cut-and-dry unconditional guaranty. All elements of TBK’s claim against Mr. McLarty for breach ofa guaranty agreement are conclusively established. The Court, therefore, should grant this motion for traditional summary judgment against Mr. McLarty for TBK’s claim of breach of an unconditional guaranty. PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 1 of 10 IL. FACTUAL BACKGROUND A. Execution of the Loan Agreements. On October 25, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan Agreement”). A true and correct copy of the First Loan Agreement is attached hereto and incorporated herein as Exhibit A-2. Under the terms of the First Loan Agreement, IM was obligated to pay regular monthly payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per annum, beginning December 1, 2019 and continuing each month until paid in full. Exhibit A-2 at 1. The First Loan Agreement provides, among other things, that IM’s failure to make any payment when due is an event of default and that any payment overdue for more than ten days will incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum percentage permitted by applicable law. Exhibit A-2 at 1. On December 4, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan Agreement”). A true and correct copy of the Second Loan Agreement is attached hereto and incorporated herein as Exhibit A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular monthly payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning January 15, 2020 and continuing each month until paid in full. Exhibit A-3 at 1. The Second Loan Agreement provides, among other things, that IM’s failure to make any payment when due is an event of default and that any payment overdue for more than ten days will incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum percentage permitted by applicable law. Exhibit A-3 at 1. On January 23, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan Agreement”). A PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 2 of 10 true and correct copy of the Third Loan Agreement is attached hereto and incorporated herein as Exhibit A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular monthly payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning March 5, 2020 and continuing each month until paid in full. Exhibit A-4 at 1. The Third Loan Agreement provides, among other things, that IM’s failure to make any payment when due is an event of default and that any payment overdue for more than ten days will incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum percentage permitted by applicable law. Exhibit A-4 at 1. On March 12, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $893,670.00 (the “Fourth Loan Agreement”). A true and correct copy of the Fourth Loan Agreement is attached hereto and incorporated herein as Exhibit A-5. Under the terms of the Fourth Loan Agreement, IM was obligated to pay regular monthly payments of $28,212.80, plus all accrued and unpaid interest at the rate of 8.25% per annum, beginning April 20, 2020 and continuing each month until paid in full. Exhibit A-5 at 1. The Fourth Loan Agreement provides, among other things, that IM’s failure to make any payment when due is an event of default and that any payment overdue for more than ten days will incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum percentage permitted by applicable law. Exhibit A-5 at 1. Exhibits A-2—A-5 are collectively referred to as the “Loan Agreements.” To secure IM’s indebtedness to TBK, Mr. McLarty executed an Unconditional Guaranty for the benefit of TBK (the “Unconditional Guaranty”), guaranteeing the full amount owed by IM to TBK under the Loan Agreements. A true and correct copy of the Unconditional Guaranty is attached hereto as Exhibit A-1. PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 3 of 10 B Default under the Loan Agreements and Breach of the Guarantees. Between April 20, 2021 and June 5, 2021, IM failed to deliver the required payments to TBK when they became due under the terms of the Loan Agreements. Exhibit A 413. Accordingly, IM is in default. TBK made a demand for payment from Defendants on May 28, 2021, and provided an opportunity to cure the defaults. A true and correct copy of the demand letter is attached hereto as Exhibit A-6. Despite demand, IM has not made any further payments due under the Loan Agreements. Exhibit A 413. TBK repossessed the collateral securing the various loans provided under the Loan Agreements from IM. Exhibit A §15. On July 7-9, 2021, that collateral was publically auctioned for an aggregate amount of $1,645,000.00. Exhibit A 915. That amount was applied against IM’s outstanding indebtedness to TBK. Exhibit A 415. Cc. Filing of this Lawsuit. On September 8, 2021, TBK filed suit against IM, K4, and Mr. McLarty, individually. Pls.’ Orig. Pet. at 1. No Defendant filed a timely answer after service of the petition. After review of TBK’s motion for default judgment, the Court ordered interlocutory default judgment against IM and K4 on November 17, 2021. IM declared Chapter 11 Bankruptcy in a Federal Bankruptcy Court, in the District of Idaho on December 28, 2021. The Court issued an order granting TBK’s motion for substituted service on Mr. McLarty and on April 28, 2022 TBK filed an Affidavit of Service meeting the requirements of the Court’s Order for Substituted Service. On May 20, 2022, Mr. McLarty finally appeared and filed a general denial. As of October, 31, 2022 the principal, interest, late fees, pre-payment premiums, and costs of collection due under the Loan Agreements is $1,148,429.58. Exhibit A 16. This figure does not include any attorneys’ fees and collection costs incurred during the pendency of this lawsuit, all of which are owed to TBK by Defendants. PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 4 of 10 Ii. SUMMARY JUDGMENT EVIDENCE Plaintiff presents the following summary judgment evidence and incorporates the evidence by reference pursuant to Texas Rule of Civil Procedure 166a(c): Exhibit A: The sworn affidavit of Tulani M. Ruffin, dated November 14, 2022; Exhibit A-1 A true and correct copy of an Unconditional Guaranty between TBK Bank, SSB and Henry Alec McLarty, individually, dated December 4, 2019. Exhibit A-2 A true and correct copy of the First Loan Agreement between TBK Bank, SSB and IM Services Group, LLC, dated October 25, 2019; Exhibit A-3 A true and correct copy of the Second Loan Agreement between TBK Bank, SSB and IM Services Group, LLC, dated December 4, 2019; Exhibit A-4 A true and correct copy of the Third Loan Agreement between TBK Bank, SSB and IM Services Group, LLC, dated January 23, 2020; Exhibit A-5 A true and correct copy of the Fourth Loan Agreement between TBK Bank, SSB and IM Services Group, LLC, dated March 12, 2020; Exhibit A-6 A true and correct copy of the Notice of Default to IM Services regarding the Loan Agreements, dated May 28, 2021; and Exhibit B: The Declaration of Jonathan D. Neerman regarding reasonable and necessary attorneys’ fees and costs, dated November 14, 2022; and Exhibit B-1: Attorneys’ Fees Invoices from Jackson Walker L.L.P. to TBK. Iv. ARGUMENT AND AUTHORITIES Summary judgment is proper if no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A Plaintiffis entitled to summary judgment on a cause of action if it conclusively proves all essential elements of its claim. Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). An element is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 5 of 10 movant establishes a right to summary judgment, the nonmovant bears the burden to present evidence raising an issue of material fact. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) A. The Summary Judgment Evidence Conclusively Establishes all Elements for Breach of a Guaranty Against McLarty. To recover on a breach of a unconditional guaranty agreement, the plaintiff must show (1) the existence and ownership of the guaranty contract; (2) the performance of the underlying contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4) the guarantor's failure or refusal to perform the guaranty's promise. Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424 (Tex. App.—Dallas 2004, no pet.). TBK can conclusively establish all four elements of this cause of action. The first element of breach of a guaranty agreement is met because, a guaranty agreement existed between Mr. McLarty and TBK Bank. See Exhibit A-1 UNCONDITIONAL GUARANTY ane. or paluables consideration the feceipt of which iis here ‘by ss here dto nd as defined b whether joint or several direct or indirect, absolute or contingent; matured or unmatured, secured or unsecured; without reduction by reason of an m action off off ms 0 oupmen and ereafter unt reditor actual receives written notice of termination of Guarantor's obligations hereunder and same becomes effective as described in paragraph 5 below. y such notice of termination shall be Exhibit A-1 at 1. On December 4, 2019 Henry Alec McLarty, as an individual, executed that unconditional guaranty agreement. PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 6 of 10 Dated: DECEMBER 4, 2019 , Ai ] 16 BA Y PARK RD, EDISTO ISLAND, SC 29438 Exhibit A-1 at 5. Upon execution, Mr. McLarty “guaranteed to be primarily liable for the full, complete, and prompt payment and performance of any and all present and future Obligations.” Exhibit A-1 at 1. Provision 2 of Mr. McLarty’s Unconditional Guaranty defines the term “obligations.” /d. Included in that definition is “Loan and Security Agreements, 9, any and all interest, charges,” and “attorneys [sic] fees and costs.” Jd. The second element of the cause of action was met when TBK, as creditor of IM, issued funds to IM under the four Loan and Security Agreements, including the Second Loan Agreement that TBK and IM executed on the same day that Mr. McLarty signed the Unconditional Guaranty. Compare Exhibit A-1 at 1 and Exhibit A-2 at 5. TBK issued funds to IM pursuant to all of the Loan and Security Agreements. Exhibit A 12. TBK also meets the third element of breach of a guaranty which requires the occurrence of the conditions upon which liability is based. The primary condition of Mr. McLarty’s Unconditional Guaranty is that the guarantor “warrant[s] and agree[s] . . . to pay on demand all sums due and/or to become due to Creditor arising out of Subject’s Obligations.” Exhibit A-1 at 1-2. IM has defaulted on its Loan and Security Agreements with TBK Bank. Exhibit A 413. As PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 7 of 10 of October 31, 2022, the sum of $1,148,429.58 was due and owing to TBK arising out of IM’s loan and security agreements. Exhibit A 16. Finally, TBK meets the fourth and final element of the breach of a guaranty agreement: the guarantor's failure or refusal to perform the guaranty's promise. To date, Mr. McLarty has failed to pay for any of the outstanding obligations that IM owes to TBK. Exhibit A 16. This is further evidenced by Mr. McLarty’s general denial of TBK’s Original Petition. McLarty’s Answer at 1. TBK’s summary judgment evidence conclusively establishes all elements for its claim of breach of a guaranty agreement. Therefore, the Court should enter judgment granting Plaintiffs claim against Defendant, Henry Alec McLarty, as a matter of law. B TBK is Entitled to Attorneys’ Fees and Costs. Under the terms of the Unconditional Guaranty, Mr. McLarty agreed to “pay on demand all losses, costs, attorneys’ fees and expenses which may be suffered by Creditor by reason of Subject’s default or default of any Guarantor hereunder in the enforcement of this Guaranty.” Exhibit A-1 at 2. Additionally, because this is a suit on a written contract, TBK is entitled to attorneys’ fees under Texas Civil Practice & Remedies Code § 38.001(8). TBK was required to retain the services of Jackson Walker L.L.P. to collect the indebtedness owed to it by Mr. McLarty. The declaration of attorney Jonathan D. Neerman attesting to the reasonableness and necessity of TBK’s attorneys’ fees and costs is attached hereto as Exhibit B. Mr. Neerman’s declaration and the invoices attached establish that as of October 31, 2022 TBK incurred $42,584.15 as reasonable and necessary attorneys’ fees and costs in pursuing Mr. McLarty’s indebtedness. Exhibits B and B-1. TBK reserves the right to amend its request for attorneys’ fees and costs associated with pursuing this motion, another other reasonably necessary motions, finalizing any judgments, and opposing any appeals. PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 8 of 10 Cc. TBK is Entitled to Post-Judgment Interest. A party to a contract action is entitled to post-judgment interest on all judgment amounts at the lesser of (1) the rate specified in the contract or (2) 18% per year. Tex. Fin. Code § 304.002. Interest rates on the Loan Agreements range from 7.25%-8.25%. Exhibits A-2-A-5. TBK, therefore, is entitled to post-judgment interest at the rate specified in the four Loan Agreements. PRAYER WHEREFORE, Plaintiff prays that this Court enter summary judgment in favor of Plaintiff for the amounts due and owing under the Loan Documents and Guarantees, plus pre-judgment and post-judgment interest, attorneys’ fees, court costs, and such other further relief to which Plaintiff may be justly entitled. Respectfully submitted, JACKSON WALKER L.L.P. By: /s/Jonathan D. Neerman Jonathan D. Neerman State Bar No. 24037165 jneerman@jw.com Matt M. Johnson State Bar No. 24108781 mjohnson@jw.com 2323 Ross Ave., Suite 600 Dallas, TX 75201 (214) 953-6000 (214) 661-6828 — Fax ATTORNEYS FOR PLAINTIFF PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 9 of 10 CERTIFICATE OF SERVICE This is to certify that on November 14, 2022, a true and correct copy of the foregoing instrument was served via electronic service upon all counsel of record. /s/ Matt M. Johnson Matt M. Johnson PLAINTIFF TBK BANK, SSB’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HENRY ALEX MCLARTY Page 10 of 10 Exhibit A CAUSE NO. DC-21-12578 'TBK BANK, SSB, IN THE DISTRICT COURT Plaintiff, 101" JUDICIAL DISTRICT IM SERVICES GROUP, LLC, K4 SERVICES LLC, and HENRY ALEC MCLARTY, Defendants. DALLAS COUNTY, TEXAS AFFIDAVIT OF TULANI M. RUFFIN STATE OF TEXAS § COUNTY OF DALLAS § 1 My name is Tulani M, Ruffin. 1 am over the age of 21 and my work address is 12700 Park Central Drive, Suite 1700, Dallas, TX 75251 in the United States of America. 2. I am a duly authorized agent of TBK Bank, SSB (“TBK”). I submit this affidavit in support of TBK’s Traditional Motion for Summary Judgment. I have personal knowledge of the facts stated herein, and if called as a witness, could testify competently to such facts under oath. 3 In my role, as Vice President of TBK, I am a custodian of business records for TBK and | am familiar with the manner in which TBK’s records are created and maintained by virtue of my duties and responsibilities. 4 Attached hereto are six documents, comprising sixty-six (66) pages of records. Exhibits A-I-A-6. Those exhibits ate exact duplicates of the original records (the “Records”). 5 The Records were made at or near the times of the acts, events, conditions, or opinions set forth in the Records by, or from information transmitted by, persons with knowledge AFFIDAVIT OF TULANI M. RUFFIN PAGEE ofthe matters set forth in the Records. The Records were kept in the course of regularly conducted activities, and it is the regular practice of TBK to make and keep the Records. 6. Between October 25, 2019, and March 12, 2020, TBK and Defendant IM Services Group, LLC (“IM”) entered into four separate Loan and Security Agreements (the “Loan Agreements”). 7 On October 25, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan Agreement”). A true and correct copy of the First Loan Agreement is attached hereto as Exhibit A-2. Under the terms of the First Loan Agreement, IM was obligated to pay regular monthly payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per annum, beginning December 1, 2019 and continuing each month until paid in full. 8 On December 4, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan Agreement”). A true and correct copy of the Second Loan Agreement is attached hereto as Exhibit A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular monthly payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning January 15, 2020 and continuing each month until paid in full. 9 On January 23, 2020, TBK and IM entered into a Loan and Security Agreement. pursuant to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan Agreement”). A true and correct copy of the Third Loan Agreement is attached hereto as Exhibit A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular monthly payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning March 5, 2020 and continuing each month until paid in full. AFFIDAVIT OF TULANI M. RUFFIN PAGE2 of the matters set forth in the Records, The Records were kept in the course of regularly conducted activities, and it is the regular practice of TBK to make and keep the Records. 6. Between October 25, 2019, and March 12, 2020, TBK and Defendant IM Services Group, LLC (“IM”) entered into four separate Loan and Security Agreements {the “Loan Agreements”), 7 On October 25, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $299,150.00 (the “First Loan Agreement”), A true and correct copy of the First Loan Agreement is attached hereto as Exhibit A-2, Under the terms of the First Loan Agreement, [M was obligated to pay regular monthly payments of $7,222.84, plus all accrued and unpaid interest at the rate of 7.25% per annum, beginning December 1, 2019 and continuing each month until paid in full. 8 On December 4, 2019, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $1,202,853.45 (the “Second Loan Agreement”). A true and correct copy of the Second Loan Agreement is attached hereto as Exhibit A-3. Under the terms of the Second Loan Agreement, IM was obligated to pay regular monthly payments of $29,475.02, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning January 15, 2020 and continuing each month until paid in full. 9 On January 23, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $871,370.00 (the “Third Loan Agreement”), A true and correct copy of the Third Loan Agreement is attached hereto as Exhibit A-4. Under the terms of the Third Loan Agreement, IM was obligated to pay regular monthly payments of $21,310.24, plus all accrued and unpaid interest at the rate of 7.95% per annum, beginning March 5, 2020 and continuing each month until paid in full. AFFIDAVIT OF TULANI M. RUFFIN PAGE 2 10. On March 12, 2020, TBK and IM entered into a Loan and Security Agreement, pursuant to which TBK loaned IM the principal amount of $893,670.00 (the “Fourth Loan Agreement”), A true and correct copy of the Fourth Loan Agreement is attached hereto as Exhibit A-5. Under the terms of the Fourth Loan Agreement, IM was obligated to pay regular monthly payments of $28,212.80, plus all accrued and unpaid interest at the rate of 8.25% per annum, beginning April 20, 2020 and continuing each month until paid in full. 1. To secure IM’s indebtedness to TBK, Defendant Henry Alec McLarty executed an Unconditional Guaranty for the benefit of TBK, guarantying the full amount owed by IM under the Loan Agreements. A true and correct copy of the Unconditional Guaranty is attached hereto as Exhibit A-1, 12. In total, TBK issued funds to IM pursuant the four Loan Agreements in the principal amount of $3,267,043.45. 13. Between April 20, 2021 and June 5, 2021, IM failed to deliver the required payments to TBK when they became due under the terms of the Loan Agreements.' TBK made a demand for payment on May 28, 2021, and provided an opportunity to cure the defaults. A true and correct copy of the May 28, 2021 demand for payment is attached hereto as Exhibit A-6. Despite demand, IM has not made any further payments due under the Loan Agreements. 14, The Loan Agreements provide, among other things, that IM’s failure to make any payment when due is an event of default and that any payment overdue for more than ten days will incur late charges in an amount equal to the lesser of 5% of such overdue payment, or the maximum percentage permitted by applicable law. ' Specifically, IM failed to make the payment due to TBK on June 1, 2021, pursuant to the First Loan Agreement; IM failed to make the payment due to TBK on May 15, 2021, pursuant to the Second Loan Agreement; IM failed to make the payment due to TBK on June 5, 2021, pursuant to the Third Loan Agreement; and [M failedto make the payment due to TBK on April 20, 2021, pursuant to the Fourth Loan Agreement. AFFIDAVIT OF TULANI M. RUFFIN PAGE3 15. As a result of default, TBK repossessed the collateral securing the various loans provided under the Loan Agreements, On July 7-9, 2021, that collateral was publically auctioned for an aggregate amount of $1,645,000.00. That amount was applied against IM’s outstanding indebtedness to TBK. 16. The deficiency remaining as of October 31, 2022, after all payments, offsets ,or credits due to IM have been accounted for is $1,148,429.58, which includes the principal, interest, late fees, and pre-payment premiums due under the Loan Agreements. Mr. McLarty has not individually repaid any portion ofthe debt he personally guaranteed to TBK. 17. TBK has been forced to hire Jackson Walker LLP to represent it in this matter and has incurred and continues to incur attommeys’ fees prosecuting this cause of action. 18. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. FURTHER AFFIANT SAYETH NAUGHT. AY.7 EXECUTED this _/ 4 day of November YY ralli M. Ruffin bu(ff SUBSCRIBED AND SWORN to before me, this 4%. of November 2022 Notary Public, tate of, ALA © Carole L Gray My \mission Expires 06/0/2024 ID No 3814206 AFFIDAVIT OF TULANI M. RUFFIN PAGE 4 Exhibit A-1 Seeeeeeeeacieeees UNCONDITIONAL GUARANTY aos TBE Bank, SSB (“Creditor”) (“Subject”) 1, For valuable consideration the receipt of which is hereby acknowledged, each of the ts undersigned (hereinafter referred to as “Guarantor(s)"), joint! and severally, absolutely and unconditionally guarantees and agrees to be primarily liable ir the full, complete, and pr er gtunmatured, ment and performance of any and all present and future Obligations (as defined bek low)of ject to Creditor, whether joint or several, direct or indirect, absolute or contingent, matured secured or unsecured; without reduction by reason of any claims, causes of action, or abatements, defenses, setoffs, offsets, counterclaims or recoupments. This is a continuing guaranty which shall remain in full force and effect, regardless of the death or dissolution of Guarantor(s), until full and indefeasible pay nt and performance of all Obligations, and thereafter until Creditor actually receives written notice of termination of Guarantor's obligations hereunder and same becomes effective as described in paragraph 5 below. Any such notice of termination shall be effective only as to Obligations and transactions arising, incurred or created after Creditor’s receipt of such termination. This guaranty is a g1 of payment and formance not merely a of collection and is unconditional and absolute. Each of the Guarantors hereunder Tepresent(s), warrant(s) and agree(s), that Guarantors’ liability to Creditor hereunder is direct and unconditional and may be enforced against Guarantors without Creditor’s prior resort to any other ight, remedy or sect any Security (defined and shall continue notwithstanding any repossession or other disposition below) regardless of whether same may constitute an election of remedies Subject, without Creditor first having to proceed against Subject or to liquidate an: Obligations of Subject or any property, collateral or security (“Security”) securing Subje Obligations, and irrespective of any invalidity, illegality, illegitimacy or unenforceability of any such Obligation or the insuffici , invalidity or unenforceability of an Security of any such dt Obligations. Guarantor agrees to be liable for the prompt, punctual anc full payment to Creditor, on demand, in legal tender of the United States of America, for the Obligations (defined below) of the Subject to Creditor, and the full and complete performance of any and all Obligations of the Subject on the terms and conditions set forth in this Guaranty. 2. The term “Obligations” is used in its most comprehensive sense and shall mean and include all obligations and indebtedness of Subject to Creditor including, without limitation: (i) indebtedness, debts, now existing or hereinafter incurred or created, including, without limitation, Loan and Security Agreements, loans, leases, advances, payments, extensions of credit, endorsements, promisso notes, credit agreements, loan agreements, guarantees, security agreements, mortgages, deeds of trust, swap agreements, overdraft indebtedness, and liabilities and obligations of Subject, and any present or future amounts payable or owing under any loan documents, benefits and any other cial accommodations, and all other instruments and documents, previously, now or hereafter made, granted or extended by Creditor to or on account of Subject or which Creditor has or will make, grant or extend to or for the account of Subject; and (ii) any and all interest, charges, late charges, default interest, attorneys fees and costs expenses hereto and/or hereafter chargeable against or owing by Subject to Creditor or upon. and/or in de btedness of any and which Subject has and/or may be become liable as endorser or guarantor; and (iii) all obligations every kind of Subject to Creditor or any of Creditor’s affiliates, including but not limited to amounts due upon any notes or other obligations, given to or received by Creditor or its affiliates, directly from Subject or acquired by Creditor or its affiliates assignment, transfer or otherwise from any one or more third parties and whether or not presently contemplated by the parties, now or in the future arising, existing, incurred, or owing to Creditor; and whether any of ing are direct or indirect, contingent or absolute, matured or unmatured and (iv) any and all renewals, accommodations, increases, modifications, extensions, amendments, rewrites and/or increases, of any of the foregoing. 3, Creditormay, in its sole and absolute discretion, at any time and from time to time, without notice to or t consent of Guarantors and without affecting, releasing or impairing the obligation of any Guarantor hereunder, do any of the following: (i) grant any accommodation, renew, increase, extend (including extensions beyond the original term of the respective instrument) any of the Obligations; (ii) modify any of the Obligations in any manner including increasing the interest rate charged and the amount or timing of any inst: iments due or to become due under the Obligations; (iii) release or discharge any Obligations of Subject, of co- guarantors or of any other party at any time directly or contingently liable for the payment or performance of any of said Obligations (whether hereunder or under a separate agreement); (iv) accept partial payments of said Obligations; (v) accept new or additional documents, instruments or agreements relating to or in substitution of said Obligations; (vi) compromise, settle, release (by operation of law or otherwise), collect or liquidate any of said Obligations and/or the security thereunderin any manner including controlling the order and manner of sale; (vii) consent to the transfer or return of the security, take and hold additional security ot guarantees for said Obligations; (viii) amend, exchange, release or waive any Security or guaranty; or (ix) bid and purchase Security securing Subject’s Obligations at any public or private sale and apply the net proceeds received to such Obligations, 4. Each of the Guarantors hereunder warrant and agree, {i) to pay on demand all sums due Page 1 of 5 Printed: 12/4/2019 5:07:59 PM and/or to hecome due to Creditor arising out of Subject’s Obligations; (ii) te pay on demand all losses, co: attorneys' fees and expenses which may be suffered by Creditor by reason of Subject's default or default of any Guarantor hereunder or in the enforcement of this Guaranty; (iii) to pay on demand to Creditor any deficiency established by a liquidation of Subject’s Obligations or Security securing Subj 's Obligations, with or without notice to any or all Guarantors; (vi) to indemnify and hold Creditor harmless from and against any and all losses, liabilities and costs caused by or arising from (in any way, directly or indirectly) any failure of Subject to fully, promptly and completely satisfy the Obligations; and (v) that no Guarantor shall be released or discharged, either in whole or in part, by Creditor’s failure or delay to perfect or continue the perfection of any security interest/lien in any Security which secures the Obligations of Subject or any Guarantorto Creditor, or to protect, preserve, maintain, recondition or liquidate the Security covered by such security interest/lien or any waiver, subordination or release of any securit interest/lien. Guarantor's liability to Creditor hereunder shall not be released, im ired or satisfied for any reason until all Obligations of Subject have been fully and indefeasibly paid and 5. This Guaranty and the obligations hereunder shall not be terminated or be effected by the death or dissolution of Guarantor(s). Any written notice of termination by Guarantor shall only he effective upon receipt of written notice sent to Creditor by certified mail return recei requested, naming a termination date effective not less than sixt 60 days after the receipt of such notice by Creditor and shall only apply to Obligations incurred er the termination date. Such notice will not be effective i) as to any Guarantor who has not given such notice or effect any transaction, or ii) asto a1 and all Obligations entered into prior to the effective date of th termination, or iii) as to tl ie right of Creditor to collect any and ali Obligations, including without limitation, interest, attorney's fees, costs and expenses arising after the termination date and accruing on any Obligations incurred prior to the termination date. 6. Each of the Guarantors waives: (i) notice of acceptance, presentment, demand, protest and notice of nonpayment or protest as to any note or Obligation; (ii) any and all rights subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which any Guarantor may now or hereafter have against Subject or any other person directly or contingently liable for the Obligations guaranteed hereunder, or against or with respect to the Security and any of Subject’s property (including without limitation, property collateralizing its Obligations to Creditor), ari: the existence or performance of this Guaranty; (iii) to the extent permitted by applicable law, all exemptions and homestead laws and any other demands and notices required by law; (iv) all claims, causes of action, cross claims, offsets, defenses, setoffs and Soe counterclaims reviously existing or now or hereafter arising; (v) any and all defenses based on di any fiduciary luty or ip or any other applicable law, including without limitation all rights and defenses arising out of (a) an election of remedies by Creditor even though that election of remedies may have impaired rights ;: of Guarantor against Subject by operation of law or otherwise, (b) protections afforded to Si ub; ject pursuant to bankruptcy, insolvency, antideficiency or similar Jaws limiting 5b or discharging Si ject's Obligations to Creditor, (c) the invalidity or unenforceability of any of the Obligations or this guaranty, (d) the failure to notify any Guarantor of the disposition of any Security, (e) the commercial reasonableness of any sale, liquidation or other disposition of any Security or the impairment, however caused, of the value of such Security, (f) rights created or conferred by any bankruptcy, extensions, stays, moratoria or other relief granted to Subject or any Guarantor pursuant to any statute presently in force or hereafter enacted and (g) Creditor's part, if any, to disclose to any Guarantor, any information, fact or thing rela duty on ted to the business operations or condition of Subject’s Security, whether now or hereafter known; (h) am right to require Creditor marshal assets or to proceed against Subject or any other guarantor. ch and every waiver made herein by Guarantor is and shal] be construed as an absolute, irrevocable itional waiver of the right waived. Payments received by Creditor from or on behalf of Subject shall be solely for the benefit of Creditor and shall not benefit Guarantor.. 7. Guarantor agrees that all present and future indebtedness of Subject to Guarantors are reby subordinated to, assigned and transferred to Creditor and pledged and made se ity for the Obligations, Guarantor shall have no right of subrogation against Subject unless and until this agreement and the obligations of Subject is/are paid in full by Guarantor. If a claim is made upon Creditor at any time for repayment or recovery of or to disgorge any sum(s) or other value received by Creditor, from source, paid on account of any of the Obligations of Subject guaranteed hereunder and Creditor disgorges, repays or ise becomes liable for all or any part of such claim by reason of: : (a) any judgment, decree or order of any court or administrative body having ent isdiction; or (b) any settlement or compromise of any such claim; Guarantors shall Creditorsotheand remain 5 severall y liable to Creditor hereunder for the amount so re aid or for which Twise liable to the same extent as if such amount(s) had never been received by Creditor, and notwithstanding any termination hereof or the cancellation of any instrument evidencing any of the Obligations, Guarantor acknowledges and agrees that Guarantor has the knowledge and experience in financial and business matters to evaluate the risks of the business transactions contemplated herein, is not in a disparate bargaining position relative to negotiating this Guaranty and willingly waives and releases, without limitation, all rights and remedies associated with the Texas Deceptive Trade Practices Act (“DTPA”) or such similar statute. 8. THE GUARANTOR REPRESENTS, WARRANTS AND UNDERSTANDS THAT CREDITOR IS DETRIMENTALLY RELYING UPON THE GUARANTOR’S AGREEMENT AND Page 2 of 5 Printed: 12/4/2019 5:07.59 PM COMPLIANCE WITH EACH AND EVERY PROVISION CONTAINED HEREIN AND, INTENDING THAT EACH AND EVERY PROVISION OF THIS AGREEMENT BE FULLY EFFECTIVE AND ENFORCEABLE ACCORDING TO ITS TERMS, THE PARTIES AGREE THAT ANY CLAIM, CONTROVERSY, DISPUTE, AND/OR THE VALIDITY, ENFORCEABILITY AND EFFECTIVENESS OF EACH PROVISION HEREOF AND/OR THE OBLIGATIONS OF THE GUARANTOR, AND THE RIGHTS AND REMEDIES OF THE CREDITOR IN ANY WAY RELATED TO OR ARISING UNDER THIS GUARANTY OR UNDER ONE OR MORE OBLIGATIONS OF SUBJECT TO CREDITOR AND THE RELATIONSHIP OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES OR PROVISIONS THEREIN EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA OTHERWISE PREEMPT TEXAS LAW, IN WHICH EVENT FEDERAL LAW SHALL CONTROL. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF TEXAS IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE GUARANTY OR THE OBLIGATIONS OR THE TRANSACTION OR TRANSACTIONS CONTEMPLATED HEREBY . Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Creditor so elects, be instituted in any State or Fede Tal Court sitting in Dallas County, Texas or, if none, any court sitting in the State of Texas (the “.‘oeceptable Forunty Guarantor agrees that the Acceptable Forums are convenient to it, and s1 mits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction and/or based upon venue or “ 1m Non conveniens” in connection with any such action or proceeding. Should such proceeding be initiated in any other forum, Guarantor waives any right to oppose any motion or application made by Creditor to transfer such proceeding to an Acceptable Forum. EACH PARTY TO THIS GU. TY HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY FROM OR RELATING TO THEIR RELATIONSHIP, ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, CROSS CLAIM AND/OR COUNTERCLAIM (a) ARISING UNDER THIS GUARANTY OR ANY OTHER OBLIGATION, INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM