EXHIBIT 10.41


 


CONDITIONAL WAIVER UNDER LOAN AGREEMENT


 


THIS CONDITIONAL WAIVER UNDER THIS AGREEMENT (this “Conditional
Waiver”) is entered into as of November 10, 2008, to be effective as
of September 30, 2008, by and between AMERICAN BUSINESS LENDING, INC., a
Texas corporation (“Borrower”), and WELLS FARGO FOOTHILL, LLC, a
Delaware limited liability company (“Lender”), with reference to the
following facts, which shall be construed as part of this Conditional Waiver:


 


RECITALS


 


A.            Borrower and Lender
have entered into that certain Loan Agreement dated as of December 15,
2006, as amended by that certain First Amendment to Loan Agreement dated as of February 27,
2007, and that certain Second Amendment to Loan Agreement entered into as of July 30,
2007 to be effective as of June 30, 2007 (as
amended or modified from time to time, the “Loan Agreement”),
pursuant to which Lender is providing financial accommodations to or for the
benefit of Borrower upon the terms and conditions contained therein. Unless
otherwise defined herein, capitalized terms or matters of construction defined
or established in the Loan Agreement shall be applied herein as defined or established therein.


 


B.            Borrower has requested
that Lender waive compliance with the two percent (2.0%) maximum loan
charge-off percentage covenant under Section 5.11(d) of the Loan Agreement with respect to the
portfolio of all Gateway Performing Loans as of the fiscal quarters ending September 30,
2008 and December 31, 2008, and Lender is willing to do so to the extent
provided in, and subject to the terms and conditions of, this Conditional
Waiver.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the continued performance by
Borrower of its promises and obligations under the Loan Agreement and the other
Loan Documents, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree
as follows:


 


1.           Ratification and
Incorporation of Loan Agreement and Other Loan Documents. Except to the extent
waived under this Conditional Waiver, (a) Borrower hereby acknowledges,
confirms, and ratifies all of the terms and conditions set forth in, and all of
its obligations under, the Loan Agreement and the other Loan Documents, and (b) all
of terms and conditions set forth in the Loan Agreement and the other Loan
Documents are incorporated herein by this reference as if set forth in full
herein.


 


2.           Conditional Waiver
Under Loan. Agreement. Lender hereby waives Borrower’s compliance with the
two percent (2.0%) maximum loan charge-off percentage covenant under Section 5.11(d) of
the Loan Agreement with respect to the portfolio of all Gateway Performing
Loans as of the fiscal quarters ending September 30, 2008 and December 31,
2008; provided, however, that an express condition of such waiver
is that as of the end of each of such fiscal quarters, with respect to the
portfolio of all Gateway Performing Loans, Borrower shall not cause or allow
the ratio (expressed as a percentage) of (i) loan losses for the 12-month
period then ending, to (ii) the average amount of all Non-Guaranteed Notes
Receivable outstanding during such 12-month period (measured by the aggregate
outstanding principal amount of all Non- Guaranteed Notes Receivable, whether
or not eligible for inclusion in the Borrowing Base), to be more than three
percent (3.0%).


 


3.           Conditions Precedent.
Notwithstanding any other provision of this Conditional Waiver, this
Conditional Waiver shall be of no force or effect, and Lender shall not have
any obligations hereunder, until the following conditions have been satisfied:


 


3.1              Execution
of Conditional Waiver. Lender shall have received this Conditional Waiver,
duly executed by Borrower and Lender.


 


3.2              No
Default or Event of Default. After giving effect to this Conditional


 

















 


Waiver, no Default or Event of Default shall have occurred and be
continuing.


 


3.3              Payment
of Waiver Fee. Lender shall have received from Borrower payment of $10,000
as a fee for entering into this Conditional Waiver, which fee shall be
fully-earned upon receipt by Lender.


 


4.           Representations and
Warranties re Loan Agreement. Borrower hereby represents and warrants that
the representations and warranties contained in the Loan Agreement were true
and correct in all material respects when made and, except to the extent that (a) a
particular representation or warranty by its terms expressly applies only to an
earlier date, or (b) Borrower has previously advised Lender in writing as
contemplated under the Loan Agreement, are true and correct in all material
respects as of the date hereof Borrower hereby further represents and warrants
that, after giving effect to this Conditional Waiver, no event has occurred and
is continuing, or would result from the transactions contemplated under this Conditional
Waiver, that constitutes or would constitute a Default or an Event of Default.


 


5.           Miscellaneous.


 


5.1             Headings. The various headings of
this Conditional Waiver are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this Conditional Waiver or
any provisions hereof.


 


5.2             Counterparts. This Conditional
Waiver may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which together shall be deemed
to be one and the same instrument. Delivery of an executed counterpart of a
signature page to this Conditional Waiver by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof


 


5.3             Interpretation. No provision of
this Conditional Waiver shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party’s having or being deemed to have structured,
drafted or dictated such provision.


 


5.4             Complete Agreement. This
Conditional Waiver constitutes the complete agreement between the parties with
respect to the subject matter hereof, and supersedes any prior written or oral
agreements, writings, communications or understandings of the parties with
respect thereto.


 


5.5             Governing Law. This Conditional
Waiver shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York applicable to contracts made and performed in
such state, without regard to the principles thereof regarding conflict of
laws.


 

















 


5.6             Effect. Upon the effectiveness of
this Conditional Waiver, each reference in the Loan Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a
reference to the Loan Agreement as amended hereby and each reference in the
other Loan Documents to the Loan Agreement, “thereunder,” “thereof,” or words
of like import shall mean and be a reference to the Loan Agreement as affected
by the conditional waiver contained herein.


 


5.7             Conflict of Terms. In the event of
any inconsistency between the provisions of this Conditional Waiver and any
provision of the Loan Agreement, the terms and provisions of this Conditional
Waiver shall govern and control.


 


5.8             No Novation or Waiver. Except as
specifically set forth in this Conditional Waiver, the execution, delivery and
effectiveness of this Conditional Waiver shall not (a) limit, impair,
constitute a waiver by, or otherwise affect any right, power or remedy of
Lender under the Loan Agreement or any other Loan Document, (b) constitute
a waiver of any provision in the Loan Agreement or in any of the other Loan
Documents or of any Default or Event of Default that may have occurred and be
continuing, or (c) alter, modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Loan Agreement or in any of the other
Loan Documents, all of which are ratified and affirmed in all respects and
shall continue in full force and effect.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
BLANK]


 

















 


IN WITNESS WHEREOF, the parties hereto have executed this Conditional
Waiver Under Loan Agreement as of the day and year first above written.


 


	
   

  	
  AMERICAN BUSINESS LENDING, INC.,

  
	
   

  	
  a Texas corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Charlie Bell, Jr.

  
	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO FOOTHILL, LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Laurel L. Varney

  
	
   

  	
  Vice President

  
	
   

  	
   

  



 


[Signature Page to Conditional Waiver
Under Loan Agreement]