FORBEARANCE AGREEMENT

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Exhibit 10.1

 

This Forbearance Agreement (this “Agreement”) is made and entered into April 21, 2010 and, upon satisfaction of the conditions precedents set forth in Paragraph 3 below, effective as of April 1, 2010, by and between JPMorgan Chase Bank, N.A. (the “Lender”), United Western Bancorp, Inc. (the “Borrower”), and Equi-Mor Holdings, Inc. (the “Pledgor”).

A.           Borrower is a Colorado corporation whose address is 700 17th Street, Suite 2100, Denver, Colorado 80202.  Pledgor is a Colorado corporation whose address is 700 17th Street, Suite 2100, Denver, Colorado 80202.

B.           As of June 29, 2007, Borrower entered into that certain Credit Agreement (as amended and/or modified, the “Credit Agreement”) with Lender pursuant to which the credit facilities provided for therein were made available to Borrower by Lender.  The Credit Agreement was subsequently amended pursuant to the: (i) Amendment To Credit Agreement, dated as of June 30, 2008 (the “First Credit Agreement Amendment”); (ii) Amendment To Credit Agreement, dated as of June 29, 2009 (the “Second Credit Agreement Amendment”); (iii) Amendment To Credit Agreement, dated as of September 30, 2009 (the “Third Credit Agreement Amendment”); (iv) Amendment And Forbearance Agreement, dated as of December 14, 2009 (the “First Forbearance & Fourth Credit Agreement Amendment”); and (v) Amendment To Credit Agreement, Note Modification And Forbearance Agreement, dated as of January 15, 2010 (the “Second Forbearance, Note Modification & Fifth Credit Agreement Amendment,” and together with the First Credit Agreement Amendment, Second Credit Agreement Amendment, Third Credit Agreement Amendment, First Forbearance & Fourth Credit Agreement Amendment, collectively, the “Amendment/Forbearance Agreements”).

C.           Borrower executed that certain Line Of Credit Note ($25,000,000.00), dated September 30, 2009, in favor of Lender in connection with Facility B (Line Of Credit Facility) under the Credit Agreement in the original principal amount of $25,000,000.00 (as modified and/or amended, the “LOC Note”), which LOC Note was given in replacement, renewal, decrease and/or extension of, but not in extinguishment of, the indebtedness evidenced by that certain Line Of Credit Note, dated June 29, 2009, executed by the Borrower in favor of Lender in the original principal amount of $30,000,000.00 (together with any predecessor notes pertaining to such indebtedness, collectively, the “Prior Notes”).  The LOC No te was subsequently amended under the terms of the Second Forbearance, Note Modification & Fifth Credit Agreement Amendment.  As of March 31, 2010, the principal and interest amounts outstanding under the LOC Note were as follows:

Principal……………………………………..                                                                           $ 17,500,000.00

 

 

Interest………………………………………                                                                           $      109,107.88

TOTAL………………………………………                                                                           $ 17,609,107.88.

D.           Borrower’s obligations under the Credit Agreement and LOC Note (collectively, the “Obligations”) are secured, without limitation, pursuant to that certain: (i) Continuing Pledge Agreement, dated as of June 29, 2007, executed by Borrower in favor of Lender, by the Collateral as defined therein, including, without limitation, all shares of United Western Bank stock (the “UWB Stock Pledge Agreement”); (ii) Continuing Pledge Agreement, dated as of January 15, 2010, executed by Borrower in favor of Lender, by the Collateral as defined therein, including, without limitation, Account No. 80492211 held at First Southwest Company (the “Borrower Securities Account Pledge Agreement”); and (iii) Continuing Pledge Agreement, dated as of Janua ry 15, 2010, executed by Equi-Mor Holdings, Inc. in favor of Lender, by the Collateral as defined therein, including, without limitation, Account No. 29718794 held at First Southwest Company (the “Equi-Mor Securities Account Pledge Agreement”).

E.           First Southwest Company, Lender, and Borrower or Pledgor (as applicable) entered into that certain: (i) Control Agreement, dated January 15, 2010, with respect to Account No. 80492211 held at First Southwest Company (the “Borrower Securities Control Agreement”); and (ii) Control Agreement, dated January 15, 2010, with respect to Account No. 29718794 held at First Southwest Company (the “Equi-Mor Securities Control Agreement”).

F.           The Credit Agreement, Amendment/Forbearance Agreements, LOC Note, Prior Notes, UWB Stock Pledge Agreement, Borrower Securities Account Pledge Agreement, Equi-Mor Securities Account Pledge Agreement, Borrower Securities Control Agreement, and Equi-Mor Securities Control Agreement and all other instruments, agreements and documents referenced in or executed and delivered in connection with any of the foregoing, including all amendments and renewals thereof, are collectively hereinafter referred to as the “Loan Documents.”

G.           Borrower previously defaulted under the terms of the Credit Agreement as a result of entry into Memorandums Of Understanding with the Office of Thrift Supervision (the “OTS”) by the Borrower and one of its subsidiaries, United Western Bank (the “MOU Defaults”).  Borrower and Lender entered into the First Forbearance & Fourth Credit Agreement Amendment pursuant to which Borrower and Lender made certain agreements, acknowledgements and Loan Document amendments, including, without limitation, Lender’s agreement to forbear from exercising remedies on account of the MOU Defaults until the earlier of maturity date of the LOC Note, which was December 31, 2009, or the occurrence of any ad ditional default thereunder or under any of the other Loan Documents.

H.           The forbearance period under First Forbearance & Fourth Credit Agreement Amendment Agreement expired.  Subsequently, Borrower and Lender entered into the Second

 

 

 

Forbearance, Note Modification & Fifth Credit Agreement Amendment pursuant to which Borrower and Lender made certain agreements, acknowledgements and Loan Document amendments, including, without limitation, Lender’s agreement to: (i) modify the LOC Note by extending the maturity date of the LOC Note to June 30, 2010; (ii) forbear from exercising remedies on account of the defaults set forth therein until the earlier of June 30, 2010, or the occurrence of any additional default thereunder or under any of the other Loan Documents; and (iii) modify the Credit Agreement by amending the Non-Performing Assets Plus OREO Ratio under the Credit Agreement, and Borrower’s agreement to: (a) make a $2,500,000.00 immediate principal payment to Lender against the outstanding Obligations under the LOC Note and Credit Agreement; (b) make a n additional $1,250,000.00 principal payment to Lender against the outstanding Obligations under the LOC Note and Credit Agreement on March 31, 2010; (c) grant Lender a security interest in the Collateral set forth in the Borrower Securities Account Pledge Agreement and Equi-Mor Securities Account Pledge Agreement and execute control agreements relating to such interests; and (d) the Bank having no further obligation to make any Advances under the LOC Note.

I.           Additional defaults have or are anticipated to have occurred under the Second Forbearance, Note Modification & Fifth Credit Agreement Amendment and certain of the Loan Documents.  Borrower is in default, without limitation, on account of the following (the “Additional Defaults”): under the LOC Note as amended by Section 3.3(B) of the Second Forbearance, Note Modification & Fifth Credit Agreement Amendment and Section 7.1(A) of the Credit Agreement, regarding its obligation to make an additional $1,250,000.00 principal payment to Lender on March 31, 2010.  It is anticipated that the following defaults may have occurred prior to the effective date hereof, or will occur after the effecti ve date hereof but prior to May 15, 2010, under the Loan Documents (the “Additional Anticipated Defaults”): (i) under Section 4.11 of the Credit Agreement, regarding Borrower’s obligation to at all times cause United Western Bank to maintain a Non-Performing Assets Plus OREO Ratio of not greater than six and one-half percent (6.5%) commencing December 31, 2009, and at all times thereafter; (ii) under Section 4.10 of the Credit Agreement, regarding Borrower’s obligation to at all times cause United Western Bank to maintain its categorization as “Well Capitalized” as defined by the regulations of United Western Bank’s primary Governmental Authority; and (iii) as a result of any regulatory restrictions, orders, agreements, actions or proceedings disclosed to Lender prior to the date hereof which restricts the Borrower from making a loan payment under the LOC Note (the “Preexisting Regulatory Payment Restrictions”) under Section 5.10(1), 6.3 (as it relates to the consent of Governmental Authorities), 6.10  (as it relates to the consent of Governmental Authorities), 6.8 and 7.1(I) of the Credit Agreement, as a result of the Preexisting Regulatory Payment Restrictions.  As a result of the Additional Defaults and the Additional Anticipated Defaults (collectively and together with the MOU Defaults, the “Disclosed Defaults”), and in conjunction with the MOU Defaults, Lender is entitled to exercise the default remedies set forth in the Loan Documents.  Borrower waives any notices of the Disclosed Defaults required under the Loan Documents.

J.           Borrower has requested that Lender continue to forbear from exercising its rights

 

 

 

 

 

and remedies under the Loan Documents arising on account of the Disclosed Defaults.  Lender agrees to forbear from exercising such rights and remedies until the Termination Date (as defined below) on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the Recitals, which are deemed a material part of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:

1.           In consideration for the agreement of Lender to forbear from exercising certain remedies on account of the Disclosed Defaults until the Termination Date (as defined below), Borrower agrees to the Recitals set forth above and to perform the obligations set forth below.

2.           In consideration for the agreements and representations made herein, provided that Borrower and Pledgor fully and timely satisfy all obligations set forth in this Agreement and the Loan Documents (as modified by this Agreement), Lender agrees to forbear from exercising its rights and remedies under the Loan Documents on account of the Disclosed Defaults (which are not waived but expressly preserved) until the earlier of: (i) the end of business on May 15, 2010; or (ii) the occurrence of a default, other than the Disclosed Defaults, under any of the Loan Documents, this Agreement, or any other agreement required to be entered into by this Agreement without any notice or grace period (the earlier of (i) and (ii) being referred to as the “Termination Date” and t he period of time from the effective date of this Agreement to the Termination Date being referred to as the “Forbearance Period”).

 
 

3.           The forbearance by Lender set forth in Paragraph 2 above shall be conditioned upon, and shall not become effective until, satisfaction of the following:

A.

Borrower and Pledgor have duly executed and delivered this Agreement to Lender, in form and substance acceptable to Lender in its sole discretion, and the Agreement is executed by Lender;

B.

Borrower has duly executed and delivered to Lender a Stock Power relating to the UWB Stock Pledge Agreement, in form and substance acceptable to Lender in its sole discretion, which Stock Power is guarantied by a financial institution who is a member of an approved Medallion Guaranty program; and

C.

Execution by Borrower and/or Pledgor and delivery to Lender of such other and further documentation as Lender may reasonably deem necessary to accomplish the terms, conditions, acknowledgments, and agreements set forth herein, which documents shall be in form and substance reasonably acceptable to Lender in its sole discretion.

 

4.           As a material inducement to Lender to enter into this Agreement, Borrower and Pledgor (as appropriate relative to their respective obligations) each separately represent and warrant that:

 

A.

This Agreement constitutes, and any of the documents required herein will constitute, upon execution and delivery, legal, valid, and binding obligations or agreements of the Borrower and Pledgor, enforceable in accordance with their respective terms;

 

B.

The execution, delivery, and performance of this Agreement, and any other document required herein, is within the corporate powers of Borrower and Pledgor, has been duly authorized by all necessary and appropriate action, whether corporate or regulatory in nature, and does not and will not: (i) require any consent or approval of the board of directors of Borrower or Pledgor; (ii) violate any provision of the articles of incorporation of Borrower or Pledgor, their respective bylaws, any other document of corporate governance, or any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to Borrower or Pledgor; (iii) require the consent or approval of, or filing or registration with, any governmental body, agency, regulator or authority (except with respect to Borrower making monthly interest payments under the LOC Note and Credit Agreement an d paying the Forbearance Fee, which requires the prior written non-objection of the OTS); (iv) cause any breach of, or constitute a default under, any contract, indenture or other agreement or instrument under which Borrower or Pledgor is a party or by which it or its properties may be bound or affected; or (v) result in the imposition of any lien, charge or encumbrance upon any property of Borrower or Pledgor not contemplated herein.

 

C.

Each of the statements set forth in the Recitals are true and correct in all respects, including, without limitation, the amount of the Obligations of the Borrower owing to the Lender, and the Lender may rely on the accuracy thereof;

 

D.

Borrower and Pledgor acknowledge that: (i) as a result of the Disclosed Defaults Lender has the right, without further notice, to enforce its rights and remedies under the Loan Documents and applicable law and, except as specifically set forth herein, has no obligation to forbear from enforcing such rights and remedies; and (ii) the Lender has duly performed all of its obligations under the Loan Documents;

 

 

 

 

 

E.

The Loan Documents constitute legal, valid, and binding agreements of the Borrower and Pledgor enforceable in accordance with their respective terms;

 

F.

Neither the Borrower nor the Pledgor has any objection, defenses, set-offs, claims, counterclaims, or causes of action of any kind or nature whatsoever with respect to any of the Loan Documents or Obligations or to the validity and perfection of Lender’s security interests in, and liens upon, its collateral property as set forth in the Loan Documents, all of which are hereby expressly waived, released, and relinquished, whether known or unknown;

 

G.

Except for the Disclosed Defaults, Borrower and Pledgor have complied with all of their obligations under the Loan Documents.  There is no condition, event, act or omission that exists which could constitute a default or Event of Default under the Loan Documents, and no condition, event, act or omission that has occurred and is continuing that, with the giving of notice or the passage of time or both, would constitute a default or an Event of Default under the Loan Documents, other than the Disclosed Defaults;

 

H.

All representations and warranties set forth in Loan Documents are true and correct as of the date of this Agreement, except as related to the Disclosed Defaults; and

 

I.

With respect to the outstanding shares of United Western Bank stock which are owned by Borrower, all physical share certificates have been transferred, and no physical share certificates have not been transferred, by Borrower to Lender pursuant to the UWB Stock Pledge Agreement.

 

5.           Borrower hereby covenants and agrees with Lender (in addition to, but not in limitation of unless expressly noted, any terms, conditions, agreements and/or covenants set forth in the Loan Documents), from and after the date hereof, to the following:

 

A.

Borrower is hereby obligated to pay Lender a fee in the amount of $20,000.00 (the “Forbearance Fee”), which fee shall be paid in good and available funds upon receipt of a written non-objection from the OTS for Borrower to pay such fee.

 

B.

As soon as practicable after the date hereof, Borrower shall provide Lender with written confirmation of Borrower’s request for written non-objection from the OTS with respect to Borrower paying Lender the Forbearance Fee, as well as any response from the OTS pertaining to such request;

 

C.

As soon as practicable after the date hereof, Borrower shall provide Lender with: (i) an updated resolution from its board of directors authorizing identified officers of the company to incur and pay debt, borrow and repay money, and otherwise

 

 

 

 

 

 

D.

Lender has no further obligation to make any Advances under the LOC Note and Borrower has no right to request further Advances under the LOC Note, regardless of whether payments have been made to reduce outstanding amounts owing under the LOC Note.

 

6.           In the event that Borrower or Pledgor fails to satisfy any covenants, representations, warranties, or agreements of this Agreement or any other Loan Document (other than the violations giving rise to the Disclosed Defaults) such failure shall immediately and without further notice or any grace period constitute an event of default under this Agreement (“Forbearance Default”) and Lender shall have no further obligation to forbear from exercising any of its rights or remedies under the Loan Documents, this Agreement, or any agreement or document executed in connection herewith or required herein.

7.           Upon the occurrence of a Forbearance Default as defined in Paragraph 6 hereof, Lender may, at its own option, terminate its obligations under this Agreement and the indebtedness due under the Loan Documents shall be immediately due and payable, all without demand, presentment, or other notice of any kind, all of which are hereby expressly waived, and Lender shall be entitled to immediately exercise all rights and remedies available herein and under the Loan Documents, the Uniform Commercial Code, and any other applicable state or federal law.  Notwithstanding the foregoing, however, the representations, warranties, acknowledgments, covenants, and agreements made by Borrower and Pledgor herein shall survive any election of Lender to terminate its obligations her eunder in the event of a Forbearance Default.

8.           Borrower and Pledgor acknowledge and agree that the MOU Defaults and Additional Defaults have occurred and are existing under the Loan Documents as of the date of this Agreement and further acknowledge and agree that Lender is entitled to take all actions legally available to it under the Loan Documents or applicable law upon the occurrence of a Forbearance Default without any further or additional notice or grace period to Borrower or Pledgor.

 

 

 

9.           Borrower and Pledgor restate, acknowledge and agree that: (i) the amounts set forth in Recital C above are outstanding and owing; (ii) the Obligations are owing and not subject to any claim, offset, counterclaim, defense or affirmative defense of any kind; (iii) the Obligations remain the continuing and individual obligations of Borrower, subject to the security interests granted by Borrower and Pledgor, until all amounts due thereunder, including attorneys’ fees and costs incurred by Lender in connection with this Agreement or enforcement of the Loan Documents, are paid in full; (iv) the liens and security interests granted to Lender by Borrower and Pledgor are and remain valid security interests in the assets subject thereto; and (v) as of the date hereof, each o f the Borrower and Pledgor separately releases, discharges, and agrees to hold harmless Lender and each of its representatives, agents, employees, attorneys, directors, officers, parents, affiliates, assigns, insurers, subsidiaries, and their successors and assigns (collectively, the “Released Parties”) from any and all claims, defenses, affirmative defenses, setoffs, counterclaims, actions, causes of action, suits, controversies, agreements, provisions, liabilities and demands in law or in equity, whether known or unknown (collectively, the “Claims”) which Borrower or Pledgor ever had, now has, or may hereafter have against or related to the Released Parties through the date of this Agreement relating to or arising out of the Loan Documents, the transactions described therein, the Obligations, or the administration by Lender of the Loan Documents, provided, however, notwithstanding the foregoing, Borrower and Pledgor ar e not releasing the Released Parties with respect to their obligations pertaining to the Collateral (as defined in the following agreements) pledged to Lender pursuant to the terms of the Borrower Securities Account Pledge Agreement and Equi-Mor Securities Account Pledge Agreement.

10.           Pledgor separately acknowledges and agrees to the continuing authenticity and enforceability of the Equi-Mor Securities Account Pledge Agreement notwithstanding the agreements set forth herein.  Pledgor separately ratifies and reaffirms the Equi-Mor Securities Account Pledge Agreement in its entirety, confirms its continuing validity, and agrees that it shall remain in full force and effect until the Obligations have been paid in full to the Lender and all remaining obligations of Borrower and Pledgor to Lender under the Loan Documents and this Agreement have been fully paid in cash and/or performed to the satisfaction of Lender.  The Equi-Mor Securities Account Pledge Agreement is incorporated herein by reference.

11.           Pledgor separately agrees that, as of the date hereof, it has no claims or defenses of any kind by way of offset or otherwise to satisfaction in full of the obligations to Lender pursuant to the Equi-Mor Securities Account Pledge Agreement.  To the extent that any such claim or defense may presently exist or may arise in the future, Pledgor expressly waives any and all claims or defenses against any of the Released Parties that now or hereafter exist by reason of, among other things, and without limitation: (i) any and all amendments or modifications of any Loan Documents or related agreement or instrument; (ii) any and all alterations, accelerations, extensions or other changes in the time or manner of payment or performance of the Obligations; (iii) any and all increases or decreases in the rate of interest or other charges; (iv) the release, substitution or addition of any collateral or any shareholder of the corporation; (v) any failure of

 

 

12.           The agreements set forth herein shall not constitute a novation of any of the Loan Documents.  Except as specifically set forth in this Agreement, the Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.  To the extent that any provision of this Agreement conflicts with any terms or conditions set forth in the Loan Documents, the provisions of this Agreement shall supersede and control.  Borrower and Pledgor shall continue to comply with all undertakings, obligations and representations set forth in the Loan Documents to the extent not modified in this Agreement.  Except as expressly provided herein, the execution, delivery, and performance of this Agreement and any document required by this Agreement shall not: (i) constitute an extension, modification, or waiver of any aspect of the Loan Documents or any right or remedy thereunder; (ii) extend the terms of the Loan Documents or the due date of any of the loans set forth therein; (iii) establish a course of dealing between the Lender, on the one hand, and Borrower and/or Pledgor, on the other hand, or give rise to any obligation on the part of Lender to extend, modify or waive any term or condition of the Loan Documents; or (iv) give rise to any defenses or counterclaims to the right of Lender to compel payment of any loan or to otherwise enforce its rights and remedies under the Loan Documents.

13.           Borrower and Pledgor separately acknowledge that it: (i) has been represented, or had the opportunity to be represented, by its own legal counsel in connection with the Loan Documents, this Agreement, and any agreements or documents required by this Agreement, including, without limitation, with respect to the releases and waivers set forth herein; (ii) has exercised independent judgment with respect to the Loan Documents, this Agreement, and any agreements or documents required by this Agreement; (iii) has not relied on Lender or its counsel for any advice with respect to the Loan Documents, this Agreement, or any agreements or documents required by this Agreement; and (iv) has had a reasonable opportunity to consider whether there may be future damages, injuries, clai ms, obligations, or liabilities which presently are unknown, unforeseen or not yet in existence and consciously intends to release them.  Based upon the foregoing, no rule of contract construction or interpretation shall be employed to construe this Agreement more strictly against one party or the other.

14.           This Agreement has been negotiated, executed, and delivered in the State of Colorado and shall be deemed to have been made in the State of Colorado.  The validity of this Agreement, its construction, interpretation, and enforcement as well as the rights of the parties hereunder (including, without limitation, with respect to the collateral) shall be determined under, governed by, and construed in accordance with the internal laws of the State of Colorado (without regard to its conflict of law principles).

15.           Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

 

 

 

 

16.           This Agreement and the other documents referred to herein contain the entire agreement between Lender, Borrower, Pledgor, or any of them, with respect to the subject matter hereof and supersedes all previous communications and negotiations.  For the sake of clarity, execution of this Agreement by Lender shall not constitute, and shall not be construed as, Lender’s agreement with, or acceptance of, Borrower’s proposal for Lender to accept the collateral pledged under the Borrower Securities Account Pledge Agreement and Equi-Mor Securities Account Pledge Agreement in exchange for satisfaction of the Obligations.  No representation, undertaking, promise, or condition concerning the subject matter hereof shall be binding upon Lender unless cl early expressed in this Agreement or in the other documents referred to herein.  Any discussions and correspondence about the terms of a possible extension, modification, and/or restructuring of any of the Loan Documents shall be deemed to be in the nature of settlement negotiations.  Accordingly, any such discussions and correspondence will not be admissible in any legal or administrative proceedings and shall not be actionable under any theory of law or utilized for any purpose without the consent of all parties.  No agreement which is reached herein shall give rise to any claim or cause of action except for breach of the express provisions of a legally binding written agreement.

17.           Nothing contained in this Agreement or any other document required by or referred to herein, nor any action taken pursuant hereto or thereto, shall be construed as: (i) permitting or obligating Lender to act as financial or business advisor or consultant to Borrower or Pledgor; (ii) permitting or obligating Lender to control or to conduct the operations of Borrower or Pledgor; (iii) creating any fiduciary obligation on the part of Lender to Borrower or Pledgor; or (iv) causing Borrower or Pledgor to be treated as an agent of Lender.

18.           This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement.  Any of the parties hereto may execute this Agreement by signing, whether by facsimile transmission or otherwise, any such counterpart.

 
 

19.           BORROWER AND PLEDGOR HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN DENVER, COLORADO, AND WAIVE ANY OBJECTION BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY DOCUMENT OR AGREEMENT DELIVERED HEREUNDER OR REQUIRED IN CONNECTION HEREWITH, OR ANY TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING.  BORROWER AND PLEDGOR WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENT TO ALL SUCH SERVICE OF PROCESS MADE BY MAIL OR BY MESSENGER DIRECTED TO ANY OF THEM AT THE ADDRESSES

 

20.           BORROWER AND PLEDGOR HEREBY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, ANY DOCUMENT DELIVERED HEREUNDER OR REQUIRED IN CONNECTION HEREWITH, OR ANY TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING.  BORROWER AND PLEDGOR REPRESENT THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.

21.           BORROWER AND PLEDGOR WAIVE ANY RIGHT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO CLAIM OR RECOVER FROM LENDER ANY CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

 

22.           This Agreement shall be binding upon, and shall inure solely to the benefit of, Borrower, Pledgor, Lender and each of their respective successors, assigns and affiliates.  No other third-party, person or entity shall have any rights or benefits under this Agreement.

 

23.           Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Documents.

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