Exhibit 10.44
THIRD AMENDMENT TO LOAN
AGREEMENT
THIS THIRD AMENDMENT TO LOAN
AGREEMENT (this “ Third Amendment ” or this
“ Amendment ”) is entered into as of
February 18, 2009 (the “ Execution Date ”),
to be effective as of February 1, 2009, 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 Third Amendment:
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 dated 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 agree to certain amendments to
the Loan Agreement, and Lender is willing to do so to the extent
provided in, and subject to the terms and conditions of, this Third
Amendment.
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 as expressly modified under this Third
Amendment, (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.
Amendments to the Loan Agreement . The Loan Agreement
is hereby amended as follows:
2.1
Addition of New Defined Terms . Section 1.1 of the Loan Agreement is
amended by adding thereto in appropriate alphabetical order the
following new defined terms:
a.
“ Base Rate Margin ” means two and five-eighths
percent (2.625%) per annum.
b.
“ Borrower Originated Cash Flow Loan or Partially Secured
Loan ” shall mean a Borrower Originated Loan that was
funded under Borrower’s
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underwriting
standards, but that does not qualify as a Borrower Originated Mixed
Collateral Loan or a Borrower Originated Real Estate
Loan.
c.
“ Borrower Originated Mixed Collateral Loan ”
shall mean a Borrower Originated Loan that was funded under
Borrower’s underwriting standards based upon being secured by
equipment or other tangible personal property having an appraised
value, or a combination of such equipment or other tangible
personal property and commercial real estate.
d.
“ Borrower Originated Real Estate Loan ” shall
mean a Borrower Originated Loan that was funded under
Borrower’s underwriting standards based upon being secured by
commercial real estate.
e.
“ Third Amendment ” shall mean the Third
Amendment to Loan Agreement dated as of February 18, 2009, and
effective as of February 1, 2009, between Borrower and
Lender.
2.2
Deletion of Certain Existing Defined Terms and
Exhibit Relating to LIBOR Option . (i)
Section 1.1 of the Loan Agreement is
amended by deleting the existing definitions of the terms
“Funding Losses,” “LIBOR Deadline,”
“LIBOR Notice,” and “LIBOR Option,”, and
(ii) Exhibit F to the Loan Agreement is
deleted.
2.3
Amendment to Definition of Base LIBOR Rate .
Section 1.1 of the Loan Agreement is
amended by deleting the existing definition of the term “Base
LIBOR Rate” and replacing it with the following amended and
restated version thereof:
“ Base LIBOR Rate
” means the rate per annum, determined by Lender in
accordance with its customary procedures, and utilizing such
electronic or other quotation sources as it considers appropriate
(rounded upwards, if necessary, to the next 1/100%), to be the rate
at which Dollar deposits (for delivery on the first day of the
requested Interest Period) in the amount of $1,000,000 are offered
to major banks in the London interbank market, on or about
1:00 p.m. (Dallas time) two (2) Business Days prior to
the commencement of such Interest Period, for a term of three
(3) months, which determination shall be conclusive in the
absence of manifest error.
2.4
Amendment to Definition of Base Rate .
Section 1.1 of the Loan Agreement is
amended by deleting the existing definition of the term “Base
Rate” and replacing it with the following amended and
restated version thereof:
“ Base Rate ”
means the higher of (i) the per annum rate which Wells Fargo
publicly announces from time to time to be its prime lending rate,
as in effect from time to time, or (ii) the Base LIBOR Rate in
effect from time to time. Wells Fargo’s prime lending
rate is a reference rate and does not necessarily represent the
lowest or best rate charged to customers. Wells Fargo may
make commercial loans or other loans at rates of interest at, above
or below Wells Fargo’s prime lending rate. Each change
in Wells Fargo’s prime lending rate shall be effective from
and including the date such change is publicly announced as being
effective.
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2.5
Amendment to Definition of Borrower Originated Loans Borrowing
Base . Section 1.1 of the Loan Agreement is
amended by deleting the existing definition of the term
“Borrower Originated Loans Borrowing Base” and
replacing it with the following amended and restated version
thereof:
“
Borrower Originated Loans Borrowing Base ” shall mean
the amount by which (A) the sum of (1) up to one hundred
percent (100%) of the Net Eligible SBA Guaranteed Notes Receivable
that are Borrower Originated Loans, plus (2) up to
eighty percent (80%) of the Net Eligible Non-Guaranteed Notes
Receivable that are Borrower Originated Real Estate Loans,
plus (3) up to seventy percent (70%) of the Net
Eligible Non-Guaranteed Notes Receivable that are Borrower
Originated Mixed Collateral Loans, exceeds (B) the sum
of (1) the Bank Products Reserves with respect to Borrower
Originated Loans, plus (2) the aggregate amount, if
any, of Note Sale Reserves then established and outstanding with
respect to Borrower Originated Loans, plus (3) the
aggregate amount of any other reserves established by Lender
pursuant to Section 2.1(c) with respect to Borrower
Originated Loans.
2.6
Amendment to Definition of Maximum Credit Line
. Section 1.1
of the Loan
Agreement is amended by deleting the existing version of the
defined term “Maximum Credit Line” contained therein
and replacing it with the following amended and restated version
thereof:
“ Maximum Credit Line
” shall mean $25,000,000, or such higher amount as Lender may
agree to in its sole discretion.
2.7
Amendment to Definition of Termination Date
. Section 1.1
of the Loan
Agreement is amended by deleting the existing version of the
defined term “Termination Date” contained therein and
replacing it with the following amended and restated version
thereof:
“ Termination Date
” shall mean the earliest of: (a) January 31, 2010
(unless a later date is agreed to in writing by Borrower and
Lender); (b) the date that Borrower elects to terminate this
Agreement and repays the Obligations in full in accordance with the
terms of Section 2.6 ; and (c) the date Lender
elects to terminate Borrower’s right to receive Revolving
Loans in accordance with Section 7.2 .
2.8
Amendment to Interest Rate . Section 2.3(b) of the Loan Agreement is
amended by deleting the existing version thereof and replacing it
with the following amended and restated version
thereof:
(b)
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