THIRD LOAN MODIFICATION AGREEMENT
(Loan No. 9117000148)
This Loan Modification Agreement
(“Third Modification”) is made and entered as of May 1,
2008, 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 (“Added Borrower”). As
used herein the term “Borrower” means, separately and
collectively, the 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.
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, Added Borrower, and Bank
(“Second Modification”), among other things, 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, and amended note
(the “Amended Note”) replaced the Note and there were
amendments to a financial reporting covenant under the Loan
Agreement. As used herein the term “Prior
Modifications” means the First Modification and the Second
Modification.
D. 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 Third
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 Amended Note, Loan Agreement, Security Agreement, Prior
Modifications 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 Third Modification and the other
Loan Documents are true and correct in all material respects as of
the date of this Third 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 Third 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 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 April 30, 2010, unless extended pursuant to
Section 2.1.a.
(b)
Section 2.1.a. of the Loan
Agreement, entitled “Revolving Line of Credit”, is
deleted and replaced in its entirety with the following:
Revolving Line of
Credit. During the Line of Credit Availability Period
and so long as no Event of Default has occurred and is continuing,
Bank will, on a revolving basis, make advances to Borrower (“
Line of Credit ”), which, except as set forth below,
may not at any time exceed an aggregate amount outstanding equal to
the lesser of Thirty Million Dollars ($30,000,000.00) or the
Borrowing Base (collectively the “ Line of Credit
Limit ”). Borrower’s obligation to repay
advances under the Line of Credit shall be evidenced by a
promissory note in a form acceptable to Bank (the “ Line
of Credit Note ”). During the Line of Credit
Availability Period, Borrower may repay principal amounts and
reborrow them. Borrower agrees
