Exhibit 10.1


 


CONDITIONAL WAIVER AGREEMENT REGARDING EVENT
OF DEFAULT


 


THIS CONDITIONAL WAIVER AGREEMENT REGARDING EVENT OF DEFAULT (this “Conditional
Waiver”) is entered into as of December 31, 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 an existing Event of Default under the Loan
Agreement, 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.                                       Borrower’s
Acknowledgement and Lender’s Conditional Waiver of an Event of Default.  Borrower acknowledges that, immediately prior
to the effectiveness of this Conditional Waiver, an Event of Default has
occurred and is continuing due to Borrower’s failure to meet the minimum
Tangible Net Worth test under Section 5.11(a) of
the Loan Agreement as of the end of its fiscal quarter ended December 31,
2008 (the “Applicable Default”).  Lender
hereby waives the Applicable Default; provided, however, that an
express condition precedent to the effectiveness of such waiver is Borrower’s
maintaining, on a consolidated basis with Borrower’s Subsidiaries, Tangible Net
Worth of not less than $5,500,000 as of the end of such fiscal quarter after
taking into account any dividends paid or accrued.


 


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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.  No Default or Event of
Default shall have occurred and be continuing, except for the Applicable
Default.


 


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 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, except for the Applicable
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 


 


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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]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Conditional
Waiver Agreement Regarding Event Of Default as of the day and year first above
written.


 


	
   

  	
   

  	
  AMERICAN BUSINESS LENDING, INC.,

  
	
   

  	
   

  	
  a Texas corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Charles P. Bell, Jr.

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS FARGO FOOTHILL, LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Laurel L. Varney

  
	
   

  	
   

  	
   

  	
  Vice President

  



 


 


[Signature Page to Conditional Waiver Agreement Regarding Event of
Default]


 


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