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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