**EXHIBIT 10.41**

 

CONDITIONAL WAIVER UNDER LOAN AGREEMENT

 

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

 

RECITALS

 

A.            Borrower and Lenderhave 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 thebenefit of Borrower upon the terms and conditions contained therein. Unlessotherwise defined herein, capitalized terms or matters of construction definedor established in the Loan Agreement shall be applied *herein*as defined or established therein.

 

B.            Borrower has requestedthat Lender waive compliance with the two percent (2.0%) maximum loancharge-off percentage covenant under Section **5.11(d) **of the Loan Agreement with respect to theportfolio 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 extentprovided in, and subject to the terms and conditions of, this ConditionalWaiver.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the continued performance byBorrower of its promises and obligations under the Loan Agreement and the otherLoan Documents, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Borrower and Lender hereby agreeas follows:

 

1.           Ratification andIncorporation of Loan Agreement and Other Loan Documents. Except to the extentwaived under this Conditional Waiver, (a) Borrower hereby acknowledges,confirms, and ratifies all of the terms and conditions set forth in, and all ofits obligations under, the Loan Agreement and the other Loan Documents, and (b) allof terms and conditions set forth in the Loan Agreement and the other LoanDocuments are incorporated herein by this reference as if set forth in fullherein.

 

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

 

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

 

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

 

3.2              NoDefault or Event of Default. After giving effect to this Conditional

 

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

 

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

 

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

 

5.           Miscellaneous.

 

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

 

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

 

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

 

5.4             Complete Agreement. ThisConditional Waiver constitutes the complete agreement between the parties withrespect to the subject matter hereof, and supersedes any prior written or oralagreements, writings, communications or understandings of the parties withrespect thereto.

 

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

 

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5.6             Effect. Upon the effectiveness ofthis Conditional Waiver, each reference in the Loan Agreement to “thisAgreement,” “hereunder,” “hereof” or words of like import shall mean and be areference to the Loan Agreement as amended hereby and each reference in theother Loan Documents to the Loan Agreement, “thereunder,” “thereof,” or wordsof like import shall mean and be a reference to the Loan Agreement as affectedby the conditional waiver contained herein.

 

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

 

5.8             No Novation or Waiver. Except asspecifically set forth in this Conditional Waiver, the execution, delivery andeffectiveness of this Conditional Waiver shall not (a) limit, impair,constitute a waiver by, or otherwise affect any right, power or remedy ofLender under the Loan Agreement or any other Loan Document, (b) constitutea waiver of any provision in the Loan Agreement or in any of the other LoanDocuments or of any Default or Event of Default that may have occurred and becontinuing, 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 otherLoan Documents, all of which are ratified and affirmed in all respects andshall continue in full force and effect.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLYBLANK]

 

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IN WITNESS WHEREOF, the parties hereto have executed this ConditionalWaiver 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 WaiverUnder Loan Agreement]

 

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