FOURTH LOAN MODIFICATION
AGREEMENT
(Loan No.
9117000148)
This Loan Modification Agreement
(the “Fourth Modification”) is made and entered as of
August 12, 2009, between CALIFORNIA BANK & TRUST , a
California banking corporation (“Bank”); ICON INCOME
FUND EIGHT B L.P.; ICON INCOME FUND NINE, LLC; ICON INCOME FUND
TEN, LLC; and ICON LEASING FUND ELEVEN, LLC ( separately
and collectively “Original Borrower”), and ICON
LEASING FUND TWELVE, LLC (“First Added Borrower”)
and ICON EQUIPMENT AND CORPORATE INFRASTRUCTURE FUND FOURTEEN,
L.P. (“Second Added Borrower”). As used
herein the term “Borrower” means, separately and
collectively, the First Added Borrower, the Second Added Borrower,
and the Original Borrower.
RECITALS
A. Pursuant
to the terms of a Commercial Loan Agreement (the "Loan Agreement")
between Bank and Original Borrower, dated as of August 31, 2005,
Bank agreed to make a revolving line of credit in the principal sum
of $17,000,000 (the “Line of Credit”) available to
Original Borrower. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such
terms in the Loan Agreement, as amended.
B. The
Line of Credit was evidenced by a promissory note (the
“Note”) of even date with the Loan Agreement, executed
by Original Borrower in favor of Bank.
C. Original
Borrower's indebtedness under the Loan Agreement was secured by
assets of Original Borrower under a separate Security Agreement,
dated August 31, 2005 (the “Security Agreement”
executed by each entity comprising Original Borrower).
D. Under
the terms of a Loan Modification Agreement, dated as of December
26, 2006, executed by Original Borrower and Bank (the “First
Modification”), the Loan Agreement was amended.
E. Under
a further Loan Modification Agreement, dated June 20, 2007,
executed by Original Borrower, First Added Borrower, and Bank (the
“Second Modification”), among other things, First Added
Borrower became a Borrower under the Loan Agreement and became a
party to the Security Agreement, Alternative Dispute Resolution
Agreement, Designation of Deposit Accounts and Contribution
Agreement which had previously been executed by Original
Borrower. By the Second Modification, an amended note
(the “Amended Note”) replaced the Note and there were
amendments to a financial reporting covenant under the Loan
Agreement.
F. Under
a further Loan Modification Agreement, dated May 1, 2008, executed
by Original Borrower, First Added Borrower, and Bank (the
“Third Modification”), among other things, the Line of
Credit Expiration Date was extended, the Line of Credit Limit was
increased to $30,000,000.00, and financial covenants were adjusted.
The Amended Note was replaced by a Second Amended Note
(“Second Amended Note”) of the same date as the Third
Modification.
G. In
response to Borrower's request and in reliance upon Borrower's
representations made to Bank in support thereof, Bank has agreed to
modify the terms of the Loan Agreement as set forth in this Fourth
Modification.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower
and Bank agree as follows:
1. Adoption of
Recitals . Borrower hereby represents and warrants
that each of the recitals set forth above is true, accurate and
complete.
2. Acknowledgment
of Debt . Borrower acknowledges that, to the best of
Borrower’s knowledge, there are no claims, demands, offsets
or defenses at law or in equity that would defeat or diminish
Bank's present and unconditional right to collect the indebtedness
evidenced by the Amended Note and to proceed to enforce the rights
and remedies available to Bank as provided in the Second Amended
Note, Loan Agreement, Security Agreement, or any other instrument,
agreement, or document given in connection with the Line of Credit
(collectively the “Loan Documents”) or by
law. Until the Line of Credit is paid in full, interest
and other charges shall continue to accrue and shall be due and
owing.
3. Representations
and Warranties . Borrower hereby represents and
warrants that no material default exists under the Line of Credit
and no event of default, breach or failure of condition has
occurred or exists, or would exist with notice or lapse of time, or
both, under any of the Loan Documents that could reasonably be
expected to have a Material Adverse Change, and all representations
and warranties of Borrower in this Fourth Modification and the
other Loan Documents are true and correct in all material respects
as of the date of this Fourth Modification (other than any such
representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof) and
shall survive the execution of this Fourth
Modification.
4. Modification of
Loan Documents . The Loan Documents are hereby
supplemented, amended and modified to incorporate the following,
which shall supersede and prevail over any existing and conflicting
provisions thereof:
(a)
Section 1.1 of the Loan Agreement, entitled "Definitions" is
modified by deleting the definition of “Borrower” and
replacing it with the following:
“Borrower” shall mean ICON Income
Fund Eight B L.P.; ICON Income Fund Nine, LLC; ICON Income Fund
Ten, LLC; ICON Leasing Fund Eleven, LLC; ICON Leasing Fund Twelve,
LLC; and ICON Equipment and Corporate Infrastructure Fund Fourteen,
L.P., separately and collectively.
(b)
Section 1.1 of the Loan Agreement, entitled
“Definitions” is modified as follows:
(i) By deleting the
definition of “Line of Credit Expiration Date” and
replacing it in its entirety with the following:
“ Line
of Credit Expiration Date ” shall mean June 30, 2011,
unless extended pursuant to Section 2.1.a.
(c)
Section 1.1 of the Loan Agreement, entitled "Definitions" is
modified by deleting the definition of “Borrower” and
replacing it with the following:
“Borrower” shall mean ICON Income
Fund Eight B L.P.; ICON Income Fund Nine, LLC; ICON Income Fund
Ten, LLC; ICON Leasing Fund Eleven, LLC; ICON Leasing Fund Twelve,
LLC; and ICON Equipment and Corporate Infrastructure Fund Fourteen,
L.P., separately and collectively.
(d) Section 3.2 of the
Loan Agreement, entitled “Interest Rate,” is modified
by deleting subsection (a) thereof, entitled “Line of Credit
Interest Rate,” and the first sentence of subsection (b)
thereof, entitled “Line of Credit Optional Interest
Rate,” and inserting in their place the following:
a.
Line of Credit Interest Rate . Interest on
advances on the Line of Credit shall accrue at the Prime Rate
(P+0.00%) per annum in effect from time to time, but in no event
shall interest accrue at less than four percent (4.00%) per annum
(the “Regular Line of Credit Interest
Rate”). Any changes in the Regular Line of Credit
Interest Rate resulting from a change in the Prime Rate shall take
effect without notice at the time the Prime Rate is set.
b.
Line of Credit Optional Interest. Instead of the
Regular Line of Credit Interest Rate, Borrower may elect to have up
to five (5) advances on the outstanding principal balance of the
Line of Credit (each a “Line of Credit LIBO Rate
Portion”) during the Line of Credit Availability Period bear
interest at the LIBO Rate,
