Westernbank Puerto Rico v. Jack Kachkar, et al.
Page 3Civil No. 07-1606 (ADC/BJM)
REPORT AND RECOMMENDATION
authorized officer of [Westernbank].” (Id., ¶ 13, 22). Moreover, the agreements provided thatWesternbank “shall not, by any act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of its rights, powers and/or remedies unless such waiver shall be in writing andsigned by an authorized officer of [Westernbank].” (Id., ¶ 13, 22). The agreements also containedintegration clauses providing that the agreement itself and certain other related financing agreementsand instruments “represents the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto, and supersedes all other prior agreements,understandings, negotiations and discussions, representations, warranties, commitments, proposals,offers and contracts concerning the subject matter hereof, whether oral or written.” (Id., ¶ 15, 23).Between March and November 2006, three letter agreements evidenced Westernbank’s limitedwaiver of certain breaches of the Loan Agreements. (Id., ¶ 41-45). A March 31, 2006 letter stated thatWesternbank had agreed “to waive certain specific violations” of the Loan Agreements for the fiscal period ended April 30, 2006, but expressly provided that the waivers “should not be construed or understood to be a waiver of [Westernbank’s] rights to declare any future default(s) under the termsof the [Loan Agreements].” (Id., ¶ 42). In an August 11, 2006 letter, Westernbank agreed to waive“certain specific violations” through August 21, 2006, but expressly stated that it did not waiveWesternbank’s “rights to declare any future default(s)” under the agreements. (Id., ¶ 43). Finally, a November 20, 2006 letter memorialized Westernbank’s waiver of “certain specific violations” throughDecember 15, 2006, but again expressly reserved Westernbank’s “rights to declare any futuredefault(s)” under the agreements. (Id., ¶ 44). Westernbank did not sign any additional waiver lettersafter November 20, 2006. (Id., ¶ 45).Also on November 20, 2006, Westernbank sent Inyx a letter confirming that it had been madeaware of “the inclusion of $37,665,000 of pre-billings in the borrowing base used by [Inyx] for purposes of determining advances under the working capital lines of credit” and “various advancesmade by [Inyx] in connection with future acquisitions of intellectual property, net assets, outstandingstock of operating companies, and other investments.” (Id., ¶ 46). Westernbank informed Inyx that
Case 3:07-cv-01606-ADC-BJM Document 437 Filed 03/03/2009 Page 3 of 25