LOAN MODIFICATION AGREEMENT (Loan No. 9117000148)
Exhibit
10.3
(Loan
No. 0000000000)
This
Loan
Modification Agreement ("Modification") is made and entered as of June 20,
2007,
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 ("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 (“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 ("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
("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 (“Prior Modification”), the Loan
Agreement was amended.
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 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,
Original Borrower, Added 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 Note and to proceed to enforce the rights
and
remedies available to Bank as provided in the Note, Loan Agreement, Security
Agreement, Prior Modification 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 Modification and the other Loan Documents are
true and correct in all material respects as of the date of this 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 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 “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; and ICON Leasing Fund
Twelve, LLC, separately and collectively.
(b) Section
8.3 of the Loan Agreement, entitled “Financial Information,” is modified by
deleting subsection (a) thereof and replacing it with the
following:
As
soon as available, and in any event
within one hundred five (105) days (onehundred twenty (120) days in the case
of
Manager) after the end of each fiscalyear, Borrower’s and Manager’s unqualified
CPA audited annual financial statements with balance sheets, income statements
and operating budgets. Statements shall be prepared by Xxxx &
Company, LLP or other accounting firm reasonably acceptable to
Bank.
(c) The
Note
is superseded and replaced by the Amended Note, described below, and all
references in the Loan Documents to “Note” shall mean and refer to the Amended
Note.
(d) The
Security Agreement, as previously amended, is further amended so that
the term “Grantor” as used therein means and refers to Added Borrower and each
entity comprising Original Borrower, separately and collectively.
(e) The
Designation of Deposit Accounts, dated August 31, 2005, entered by Original
Borrower is modified to add the following deposit account at Bank as one of
Borrower’s “Designated Accounts”:
ICON
Leasing Fund Twelve,
LLC 117008191
(f) The
Alternative Dispute Resolution Agreement, dated August 31, 2005, entered by
Original Borrower and Bank is modified to add Added Borrower among the
“Obligors” as that term is defined therein.
(g) The
Contribution Agreement, dated August 31, 2005, entered by Original Borrower
is
modified to add Added Borrower among the “ICON Funds” as that term is defined
therein.
(h) Added
Borrower assumes the obligations of Original Borrower under the Loan Documents
and Contribution Agreement, as they may have been previously modified and as
further modified or superseded hereby, and agrees to be bound by terms of the
those Loan Documents and the Contribution Agreement as if Original Borrower
had
executed the same and any the prior amendments thereto.
(i) The
form
of the Notice of Borrowing and Compliance Certificate shall be replaced by
the
Amended Notice of Borrowing and Amended Compliance Certificate appended
hereto.
(j) Upon
the
effectiveness of this Modification, the Loan Documents which recite that they
are security instruments shall secure, in addition to any other obligations
secured thereby, the payment and performance by Borrower of all obligations
under the Line of Credit, as modified hereby, and any amendments, modifications,
extensions or renewals of the same which are hereafter agreed to in writing
by
the parties.
5. Conditions
Precedent. This Modification shall only be effective upon
Borrower’s completion of the following conditions precedent to Bank’s
satisfaction.
(a) Execution
and delivery by Borrower of this Modification and the Amended Note in form
satisfactory to Bank;
(b) Bank
shall file and is authorized to file a UCC-1 Financing Statement identifying
Added Borrower as “Debtor” in form satisfactory to the Bank with the Delaware
Secretary of State;
(c) Execution
and delivery to Bank of a Corporate Resolution for Borrowing by Limited
Liability Companies and Limited Partnership in form satisfactory to
Bank;
(d) Execution
and delivery to Bank of a Certificate of Limited Liability Company and
Authorization to Sign on behalf of Added Borrower;
(e) Such
other documents or instruments as Bank shall reasonably require;
(f) After
giving effect to this Modification, the absence of any Event of Default under
the Loan Agreement except as may be expressly waived in writing by Bank;
and
(g) Payment
of Bank's reasonable attorneys fees incurred in preparation of this Modification
and related documents.
6. Governing
Law. This Modification shall be construed, governed and enforced
in accordance with the laws of the State of California.
7. Interpretation. No
provision of this Modification is to be interpreted for or against either
Borrower or Bank because that party, or that party's representative, drafted
such provision.
8. Full
Force and Effect. Except as set forth herein, all other terms and
conditions of the Loan Documents shall remain in full force and
effect. Upon and after the effectiveness of this Modification, each
reference in the Loan Agreement and Security Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Loan Agreement or
Security Agreement, as applicable, and each reference in the other Loan
Documents to “Loan Agreement”, “Security Agreement”, “thereunder”, “thereof” or
words of like import referring to the Loan Agreement or Security Agreement,
as
applicable, shall mean and be a reference to the Loan Agreement or Security
Agreement, as applicable, as modified hereby.
9. Reaffirmation. Except
as specifically modified by this Modification, Borrower hereby acknowledges,
reaffirms and confirms its obligations under the Loan Documents.
10. Entire
Agreement. This Modification and the Loan Documents represent the
entire agreement of the parties and supersede all prior oral and written
communication between the parties. If there is any conflict between
this Modification and any documents referred to herein, this Modification shall
prevail. No amendment of this Modification shall be valid unless it
is in writing and is signed by the parties to this Modification.
11. Counterparts.
This Modification may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Modification by facsimile shall be
effective as delivery of a manually executed counterpart of this
Modification.
IN
WITNESS WHEREOF, the parties have executed this Modification as of the day
and
year first above written.
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ICON
INCOME FUND EIGHT B L.P.,
a
Delaware limited partnership
By: ICON
CAPITAL CORP.,its general partner
By:
/s/ Xxxxxx X.
Xxxxxx
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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CALIFORNIA
BANK & TRUST,
a
California banking corporation
By: /s/
J. Xxxxxxx Xxxxxxxx
Name: J.
Xxxxxxx Xxxxxxxx
Title: Vice
President and Relationship Manager
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Address
where notices are to be sent:
ICON
INCOME FUND EIGHT B L.P.
c/o
ICON Capital Corp., its general partner
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Attention: Xxxxxx
X. Xxxxxx, CEO
Facsimile
No.: (000) 000-0000
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Address
where notices are to be sent:
South
Bay Commercial Banking
0000
Xxxxx Xx Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
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ICON
INCOME FUND NINE, LLC,
a
Delaware limited liability company
By:
ICON CAPITAL CORP.,its manager
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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Address
where notices are to be sent:
ICON
INCOME FUND NINE, LLC
c/o
ICON Capital Corp., its manager
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Attention: Xxxxxx
X. Xxxxxx, CEO
Facsimile
No.: (000) 000-0000
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ICON
INCOME FUND TEN, LLC,
a
Delaware limited liability company
By: ICON
CAPITAL CORP.,its manager
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
|
|
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Address
where notices are to be sent:
ICON
INCOME FUND TEN, LLC
c/o
ICON Capital Corp., its manager
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Attention: Xxxxxx
X. Xxxxxx, CEO
Facsimile
No.: (000) 000-0000
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ICON
LEASING FUND ELEVEN, LLC,
a
Delaware limited liability company
By:
ICON CAPITAL CORP.,its manager
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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|
Address
where notices are to be sent:
ICON
LEASING FUND ELEVEN, LLC
c/o
ICON Capital Corp., its manager
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Attention: Xxxxxx
X. Xxxxxx, CEO
Facsimile
No.: (000) 000-0000
|
|
a
Delaware limited liability company
By: ICON
CAPITAL CORP.,its manager
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Chief
Executive Officer
|
|
|
Address
where notices are to be sent:
c/o
ICON Capital Corp., its manager
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Attention: Xxxxxx
X. Xxxxxx, CEO
Facsimile
No.: (000) 000-0000
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