EXHIBIT 10.8
Principal Loan Date Maturity
$200,000.00 06-13-2001 6-13-2002
Borrower: Shadows Bend Development, Inc. Lender: Gulf Coast Bank and Trust Company
(TIN: 00-0000000) Commercial Lending
000 Xxxxxxxxx Xxxxxx, Xxxxx 000 0000 Xxxxxxxx Xxxxxxxx Xxxx.
Baton Rouge, LA 70804 Metairie, LA 70005
Grantor: Diamond Holding LLC
(TIN: 00-0000000)
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
PLEDGE OF COLLATERAL MORTGAGE NOTE UNITED STATES OF AMERICA
BY: DIAMOND HOLDING LLC STATE OF LOUISIANA
PARISH OF JEFFERSON
IN FAVOR OF:
Gulf Coast Bank and Trust Company
And Any Future Holder or Holders
BE IT KNOWN, that on June 13, 2001;
BEFORE ME, the undersigned Notary Public, and in the presence of the
undersigned competent witnesses;
PERSONALLY CAME AND APPEARED:
SEE ATTACHED EXHIBIT;
WHO DECLARED THAT:
TERMS AND CONDITIONS:
COLLATERAL MORTGAGE NOTE. Desiring to secure the prompt and punctual
payment and satisfaction of any and all present and future Indebtedness as
may be outstanding from time to time, one or more times, in favor of Xxxxxx
as provided herein, Grantor has executed a certain Collateral Mortgage
Note dated June 13, 2001, in the amount of U.S. $500,000, payable to the
order of BEARER, on demand, at the offices of Lender, a copy of which Note
is attached to and expressly made a part of this Agreement by reference.
COLLATERAL MORTGAGE. The aforesaid Note is in turn secured by a Collateral
Mortgage dated 06-13-2001, executed by Grantor in favor of Gulf Coast Bank
and Trust Company, Commercial Lending and any future holder or holders of
the aforesaid Note, affecting Grantor's real estate, as more specifically
described in the Collateral Mortgage.
PLEDGE OF NOTE. AND NOW, in order to secure the prompt and punctual
payment and satisfaction of any and all present and future Indebtedness
including any renewals, substitutions and/or promissory note(s) whenever
executed to evidence that Indebtedness, Grantor hereby pledges, transfers,
conveys, delivers and grants a continuing security interest in the
aforesaid Note to and in favor of Lender, together with any and all of
Grantors rights, title, interest and obligations in, to and under the
Collateral Mortgage securing said Note.
CONTINUING SECURITY INTEREST TO SECURE PRESENT AND FUTURE INDEBTEDNESS.
Grantor affirms that Xxxxxxx's continuing security interest in the
aforesaid Note is intended to and shall secure any and all of Borrower's
and Grantor's present and future Indebtedness in favor of Xxxxxx, as may be
outstanding from time to time, one or more times, including Xxxxxxxx's loan
and promissory note described herein, with the continuing preferences and
priorities provided under Louisiana law.
DURATION OF AGREEMENT. This Agreement shall remain in full force and
effect, and Lender shall have the right to continue to retain possession of
aforesaid Note, until such time as this Agreement and the security
interests created hereby are terminated and cancelled by Xxxxxx under a
written cancellation instrument, and the Note is returned by Lender marked
"PAID" or "CANCELLED."
DEFAULT. Each of the following shall constitute an Event of Default under
this Agreement:
Payment Default. Borrower fails to make any payment when due under
the Indebtedness.
Other Defaults. Borrower or Grantor fails to comply with or to
perform any other term, obligation, covenant or condition contained in
this Agreement or in any of the Related Documents or to comply with or
to perform any term, obligation, covenant or condition contained in
any other agreement between Lender and Borrower or Grantor.
Other Defaults In Favor of Lender. Borrower, Grantor, or any
guarantor defaults under any other loan, extension of credit, security
right, instrument, document, or agreement, or obligation in favor of
Lender.
Default under Mortgage. Grantor violates, or fails to comply fully
with any of the terms and conditions of, or defaults under this
Agreement or the Collateral Mortgage executed in connection herewith,
and/or under any of the additional obligations incurred or assumed by
Grantor hereunder or thereunder.
Default in Favor of Third Parties. Grantor or any guarantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other
creditor or person that may materially affect any of Grantor's
property subject to the aforesaid Collateral Mortgage or Grantor's or
any guarantor's ability to perform their obligations under this
Agreement or any of the Related Documents.
Insolvency. Should the suspension, failure or insolvency, however
evidenced, of any Borrower or any guarantor occur or exist.
Readjustment of Indebtedness. Should proceedings for readjustment of
Indebtedness, reorganization, composition or extension under any
insolvency law, be brought by or against any Borrower or any
guarantor.
Assignment for the Benefit of Creditors. Should any Borrower or any
guarantor file proceedings for a respite or make a general assignment
for the benefit of creditors.
Receivership. Should a receiver of all of any part of Xxxxxxxx's or
Guarantor's property or the property of any Guarantor be applied for
or appointed.
Creditor Proceedings. Any other creditor attempts to take any of the
property subject to Grantor's Collateral Mortgage, or any of
Borrower's or Grantor's other property on which Xxxxxx may then have a
lien or security interest. This includes a garnishment of any of
Borrower's or Grantor's deposit accounts with Xxxxxx.
Dissolution Proceeding. Proceedings for the dissolution or
appointment of a liquidator of Grantor or any guarantor are commenced.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or Grantor or on Borrower's or
Grantor's behalf under this Agreement, the Indebtedness, is false or
misleading in any material respect, either now or at the time made or
furnished or becomes false or misleading at any time thereafter.
Insecurity. Lender in good faith believes itself insecure with regard
to repayment of the Indebtedness.
XXXXXX'S RIGHTS TO ACCELERATE PAYMENT UPON DEFAULT. Should any one or more
Events of Default occur or exist under this Agreement, as provided herein,
Lender shall have the right, at its sole option, to accelerate the maturity
of and declare immediately due and payable, in full, any and all of the
Indebtedness secured by the aforesaid Note. Lender shall have the
additional right, again at its sole option, to declare the aforesaid Note
to be immediately due and payable, in principal, interest, costs and
attorneys' fees. Lender shall then have the right, again at its sole
option, to commence appropriate foreclosure proceedings under the aforesaid
Collateral Mortgage and/or to exercise the additional remedies provided
thereunder and/or hereunder.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all
of Lender's rights and remedies, whether evidenced by this Agreement or by
any other writing, shall be cumulative and may be exercised singularly or
concurrently. Election by Xxxxxx to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or
to take action to perform an obligation of Grantor under this Agreement, after
Xxxxxxx's failure to perform, shall not affect Xxxxxx's right to declare a
default and exercise its remedies. Nothing under this Agreement or
otherwise shall be construed so as to limit or restrict the rights and
remedies available to Lender following an Event of Default, or in any way
to limit or restrict the rights and ability of Lender to proceed directly
against Grantor and/or Borrower and/or against any other co-maker,
guarantor, surety or endorser and/or to proceed against any other
collateral directly or indirectly securing the Indebtedness. Xxxxxx's
election to exercise any rights or remedies against a part, but not all, of
the property subject to the Agreement shall not preclude Lender from,
separately and subsequently, exercising the same or any other rights or
remedies against any other part or parts of such property from time to time
after the occurrence of any Event of Default, in such order as Lender may
determine in Xxxxxx's sole discretion.
APPLICATION OF PROCEEDS. Any and all proceeds that Lender actually
receives and collects, whether resulting from the public or private sale of
the aforesaid Note or foreclosure under the aforesaid Collateral Mortgage,
shall be applied first to reimburse Lender for its costs of collecting the
same (including, but not limited to, any attorneys' fees incurred by
Xxxxxx), and then to Additional Advances that Lender may make on Xxxxxxx's
behalf as provided under the aforesaid Collateral Mortgage, together with
interest thereon; with the balance being applied to principal, interest,
costs, expenses, attorneys' fees and other fees and charges under the
Indebtedness, in such order and with such preferences and priorities as
Lender shall determine within its sole discretion.
PRESCRIPTION. Grantor hereby acknowledges and reaffirms the Indebtedness
represented by the Note, and specifically interrupts and renounces the
effect of any prescriptive period that may have commenced or run with
respect to the Note.
TRANSFER OF INDEBTEDNESS. Grantor hereby recognizes and agrees that Xxxxxx
may assign all or any portion of the Indebtedness to one or more third
party creditors. Such transfers may include, but are not limited to, sales
of participation interests in the Indebtedness. Grantor specifically
agrees and consents to all such transfers and further waives any notice of
any such transfers as may be provided for under applicable law. Grantor
further agrees that, upon any transfer of all or any portion of the
Indebtedness, Lender may transfer and deliver any of the collateral
securing repayment of the Indebtedness (including, but not limited to, the
aforesaid Note) to the transferee of such Indebtedness, and such transfers
shall not affect the priority and ranking of the Collateral Mortgage, and
such collateral shall secure any and all present and/or future Indebtedness
in favor of such a transferee in principal, interest, costs, expenses,
attorneys' fees and other fees and charges. Grantor additionally agrees
that, after any such transfer has taken place, Lender shall be fully
discharged from any and all liability and responsibility to Grantor with
respect to any collateral so transferred, and the transferee thereafter
shall be vested with all of the powers and rights with respect to such
transferred collateral, with Xxxxxx retaining all powers and rights with
respect to any of the pledged collateral that is not transferred to another
party.
REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants to Lender
that:
Ownership. Grantor is the legal and beneficial owner of and the
obligor under the Note. Xxxxxxx's execution, delivery, and
performance of this Agreement and all the Related Documents have been
duly authorized by all necessary action by Grantor and do not conflict
with, result in a violation of, or constitute a default under (1) any
provision of Grantor's articles of organization or membership
agreements, or any agreement or other instrument binding upon Grantor
or (2) any law, governmental regulation, court decree, or order
applicable to Grantor or to Grantor's properties.
Validity; Binding Effect. This Agreement is binding upon Grantor and
Xxxxxxx's successors and assigns and is legally enforceable in
accordance with its terms.
Continuing Validity. Any and all acts authorized pursuant to this
Agreement and performed prior to the passage of this Agreement are
hereby ratified and approved. This Agreement shall be continuing,
shall remain in full force and effect and Lender may rely on it until
written notice of its revocation shall have been delivered to and
received by Lender at Xxxxxx's address shown above (or such addresses
as Lender may designate from time to time). Any such notice shall not
affect any of Grantor's agreements or commitments in effect at the
time notice is given.
INDEMNIFICATION OF LENDER. Grantor agrees to indemnity, to defend and to
save and hold Lender harmless from any and all claims, suits, obligations,
damages, losses, costs and expenses (including, without limitation,
Xxxxxx's reasonable attorneys' fees in an amount not exceeding 25.000% of
the principal balance due on the Indebtedness), demands, liabilities,
penalties, fines and forfeitures of any nature whatsoever that may be
asserted against or incurred by Lender, its officers, directors, employees,
and agents arising out of, relating to, or in any manner occasioned by this
Agreement and the exercise of the rights and remedies granted Lender under
this. The foregoing indemnity provisions shall survive the cancellation of
this Agreement as to all matters arising or accruing prior to such
cancellation and the foregoing indemnity shall survive in the event that
Lender elects to exercise any of the remedies as provided under this
Agreement following default hereunder.
MULTIPLE PLEDGE AGREEMENTS. Xxxxxxx recognizes and agrees that Grantor may
have previously executed and may in the future execute one or more
additional pledge or security agreements in favor of Lender under which
Grantor may grant Lender a security interest in all or a part of the same
Collateral. Should this occur, the execution of this Agreement and any
additional pledge or security agreements on Grantor's part will not be
construed as a cancellation, novation or modification of any of Grantor's
pledge agreements or a repledge of Grantor's Note; it being Grantor's full
intent and agreement that all of Grantor's pledge and security agreements
(including this Agreement) shall be cumulative in nature and shall remain
in full force and effect until such time as Lender should agree to cancel
Grantor's pledge or security agreements under a written cancellation
instrument.
EXECUTION OF ADDITIONAL DOCUMENT. Xxxxxxx agrees to execute all additional
documents that Xxxxxx may deem necessary and proper, within its sole
discretion, to better reflect the true intent of this Agreement. Xxxxxxx
additionally agrees to execute whatever additional acknowledgments, and to
furnish Lender with such other security, as Lender may require prior to the
date on which repayment of the aforesaid Note may be barred under any
applicable statute of limitations or prescriptive period.
PROTECTION OF XXXXXX'S SECURITY RIGHTS. Xxxxxxx agrees to appear in and to
defend all actions or proceedings purporting to affect Xxxxxx's security
rights and interests granted under this Agreement. In the event that
Xxxxxx elects to defend any such action or proceeding, Xxxxxxx agrees to
reimburse Lender for Xxxxxx's costs associated therewith, including without
limitation, Xxxxxx's reasonable attorneys' fees, which additional costs and
expenses shall be secured by this Agreement.
WAIVERS. Grantor hereby waives presentment for payment, protest and notice
of protest and of nonpayment, and all pleas of division and discussion with
regard to the Indebtedness. Xxxxxxx agrees that Grantor shall remain
liable together with Xxxxxxxx and any and all guarantors, endorsers and
sureties of the Indebtedness on a "joint and several" or "solidary" basis.
Grantor further agrees that discharge or release of any party, or extension
of time for payment, or any delay in enforcing any rights granted to
Lender, will not cause Lender to lose any of its rights under this
Agreement or under the Indebtedness. Grantor is also waiving any defenses
that may arise because of any action or inaction on Lender's part,
including without limitation, any failure or delay of Lender to exercise or
enforce any of its rights related to Grantor's Mortgage. Grantor
additionally agrees that any waiver or forbearance on Xxxxxx's part shall
be binding upon Lender only if agreed to in writing.
Grantor additionally agrees that Xxxxxx's acceptance of payments other than
in accordance with the terms of any agreement or agreements governing
repayment of the Indebtedness, or Xxxxxx's subsequent agreement to extend
or modify such repayment terms, shall likewise not have the effect of
releasing Grantor, and/or of releasing the Indebtedness, and/or any other
party or parties guaranteeing payment of the Indebtedness from their
respective obligations to Lender, and/or of releasing any other collateral
directly or indirectly securing repayment of the Indebtedness. In
addition, no course of dealing between Xxxxxxxx and Grantor and Lender, nor
any failure or delay on the part of Lender to exercise any of the rights
and remedies granted under the aforesaid provisions, or under any other
agreement or agreements by and between Borrower and Grantor and Xxxxxx,
shall have the effect of waiving any of Lender's rights and remedies. Any
partial exercise of any rights and remedies granted to Lender shall
furthermore not constitute a waiver of any of Xxxxxx's other rights and
remedies, it being Grantor's intent and agreement that Xxxxxx's rights and
remedies shall be cumulative in nature. Grantor further agrees that, upon
the occurrence of any Event of Default under the aforesaid provisions, any
waiver or forbearance on the part of Lender to pursue the rights and
remedies available to Lender shall be binding upon lender only to the
extent that Xxxxxx specifically agrees to any such waiver or forbearance in
writing. A waiver or forbearance as to one Event of Default shall not
constitute a waiver or forbearance as to any other default.
FURTHER COVENANTS. Grantor further represents, warrants and agrees that:
(A) Grantor has agreed and consented to grant the security interest
provided herein to secure payment of Xxxxxxxx's Indebtedness in favor of
Xxxxxx at Xxxxxxxx's request and not at the request of Xxxxxx, (B) Grantor
will receive and/or has received a direct or indirect material benefit from
the transactions contemplated herein and/or arising out of Xxxxxxxx's
Indebtedness; (C) Grantor has established adequate means of obtaining
information from Borrower on a continuing basis with regard to Borrower's
financial condition; and (D) Xxxxxx has made no representations to Grantor
as to the creditworthiness of Borrower. Grantor agrees to keep adequately
informed of any facts, events or circumstances which might in any way
affect Xxxxxxx's risks with regard to Borrower's Indebtedness. Grantor
further agrees that Xxxxxx shall have no obligation to disclose to Grantor
any Information or material relating to Xxxxxxxx's Indebtedness.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a
part of this Agreement:
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or
define the provisions of this Agreement.
Governing Law. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the State of
Louisiana. This Agreement has been accepted by Xxxxxx in the State of
Louisiana.
Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully
severable. This Agreement shall be construed and enforceable as if
the illegal, invalid or unenforceable provision had never comprised a
part of it, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be
affected by illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be automatically as a part of
this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
Successors and Assigns Bound; Solidary Liability. Subject to any
limitations set forth herein on transfer of the Indebtedness, this
Agreement shall be binding upon and inure to the benefit of the
parties, and their successors and assigns. In the event that there is
more than one Grantor under this Agreement, all of the agreements and
obligations made and/or incurred by any Grantor under this Agreement
shall be on a "solidary" or "joint and several" basis. We further
agree that any of us, acting alone or with others, may enter into
additional loans and extensions of credit, and may incur additional
liabilities and obligations in favor of Lender, all of which will
automatically be secured by our Note, without the further agreement or
concurrence of all of us.
DEFINITIONS. The following capitalized words and terms shall have the
following meanings when used in this Agreement. Unless specifically stated
to the contrary, all references to dollar amounts shall mean amounts in
lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the
singular, as the context may require. Words and terms not otherwise
defined in this Agreement shall have the meaning attributed to such terms
in the Louisiana Commercial Laws (La. R.S. 10:9-101, et seq.):
Additional Advance. The words "Additional Advance" mean any and all
additional sums that Lender may advance on Grantor's behalf as
provided under this Agreement.
Agreement. The word "Agreement" means this Agreement and all
subsequent amendments to this Agreement as it may be amended or
modified from time to time.
Borrower. The work "Borrower" means SHADOWS BEND DEVELOPMENT, INC.,
and all other persons and entities signing the Note in whatever
capacity.
Collateral Mortgage. The words "Collateral Mortgage" man the
collateral mortgage as described in the Collateral Mortgage section of
this Agreement.
Event of Default. The words "Event of Default" mean any of the events
of default set forth in this Agreement in the default section of this
Agreement.
Grantor. The word "Grantor" means DIAMOND HOLDING LLC.
Indebtedness. The word "Indebtedness" means any an all present and
future loans, extensions of credit, liabilities and obligations of
every nature and kind that Borrower and Grantor may now and/or in the
future owe to or incur in favor of Lender, including without
limitation, the loan evidenced by a promissory note dated June 13,
2001, in the principal amount of $200,000, from Borrower to Lender,
whether such loans, extensions of credit, liabilities and obligations
are direct or indirect, absolute or contingent, voluntary or
involuntary, determined or undetermined, liquidated or unliquidated,
due or to become due, and whether secured or unsecured, in principal,
interest, costs, expenses, attorneys' fees and other fees and changes,
whether any such Indebtedness may be barred under any statute of
limitations or prescriptive period or may be otherwise unenforceable
or voidable for any reason.
Lender. The word "Lender" means Gulf Coast Bank and Trust Company,
its successors and assigns, and any subsequent holder or holder so the
Note or any interest therein.
Note. The word "Note" means the Collateral Mortgage Note as described
in the Collateral Mortgage Note section of this Agreement.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT AND
AGREES TO ITS TERMS. THIS AGREEMENT DATED JUNE 13, 2001.
THUS DONE AND SIGNED, on the day, month and year first written above.
GRANTOR:
Diamond Holding, LLC
Shadows Bend Development, Inc.
Member of Diamond Holding, LLC
By: /s/ Xxxxx Xxxxxxxxx, Xx.
Xxxxx Xxxxxxxxx, Xx., Secretary of
Shadows Bend Development, Inc.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxxx, President of
Shadows Bend Development, Inc.
