Loan Modification Agreement, made and entered into as of December 26, 2006


     

     

    EXHIBIT
      10.1 

    
      

    

    
      
        

      

    

     

    


    LOAN
      MODIFICATION AGREEMENT

    (Loan
      No. 9117000148)

     

    


    This
      Loan
      Modification Agreement ("Modification") is made and entered as of December
      26,
      2006, between CALIFORNIA
      BANK & TRUST,
      a
      California banking corporation ("Bank"), and 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 "Borrower”). 

     

    RECITALS

     

    A. Pursuant
      to the terms of a Commercial Loan Agreement ("Loan Agreement") between Bank
      and
      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
      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 Borrower in favor of Bank.

     

    C. Borrower's
      indebtedness under the Loan Agreement was secured by assets of Borrower under
      a
      separate Security Agreement, dated August 31, 2005 ("Security Agreement"
      executed by each entity comprising Borrower). 

     

    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,
      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,
      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.

     

     

     

     

    
      
        
        

      

      
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    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 “Collateral” and replacing it with the
      following:

     

    “Collateral”
means
      and includes, without limitation, all property and assets granted as collateral
      security for a Loan pursuant to the Security Agreement, whether real or personal
      property, whether granted directly or indirectly, whether granted now or in
      the
      future and whether granted in the form of a security interest, assignment,
      pledge, lien, or any other security or lien interest whatsoever, whether created
      by law, contract or otherwise. The word “Collateral” includes without limitation
      all collateral described in the section of this Agreement titled “Collateral;”
provided,
      that
      notwithstanding anything to the contrary in this Agreement, the words
“Accounts”, “Accounts Receivable”, “Collateral Documents”, “Indirect Lease”,
“Indirect Loan Contract”, “Inventory”, “Lease”, “Loan Contract”, and “Revolving
      Loan Contract” shall not mean any “Accounts”, “Accounts Receivable”, “Collateral
      Documents”, “Indirect Leases”, “Indirect Loan Contracts”, “Inventory”, “Leases”,
“Loan Contracts”, or “Revolving Loan Contracts” that are owned or receivable by
      or to which ICON Leasing Fund Eleven ULC and/or ICON U.S. Equipment, LLC is
      a
      party, as applicable.

     

    (ii)  By
      deleting the definition of “Discount Rate” in its entirety.

     

    (iii)  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 September 30, 2008, unless extended pursuant to Section 2.1.a.

     

    (iv)  By
      deleting the definition of "Liquidity" and replacing it in its entirety with
      the
      following: 

     

    “Liquidity”
means
      Borrower’s cash reserves (other than deposits reserved pursuant to Borrower’s
      non-recourse financing, if any) and unused Availability under the Line of
      Credit.

     

     

     

     

    
      
        
        

      

      
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    (v)  By
      deleting the definition of "Present Value" and replacing it with the
      following:

     

    “Present
      Value”
means
      any fixed unpaid payment obligation owed to Borrower by a Lessee under a lease
      or a Debtor under a loan (including, without limitation, unpaid regularly
      scheduled payments, puts and balloon payments) (in each case excluding leases
      and loans that are not Eligible Borrowing Base Contracts), such unpaid payments
      to be discounted to their present value on the date of calculation at the Prime
      Rate. If the contract is an Indirect Lease or Indirect Loan Contract, the
      Present Value shall be multiplied by that percentage of the foregoing that
      corresponds to Borrower’s interest in the Person that is the lessor or lender,
      as the case may be. If a lessee under a lease has the option to terminate the
      lease as of a date prior to its scheduled termination date, the Present Value
      of
      that lease shall be the lower of the following: (i) the Present Value based
      on
      the lease terminating at such prior date plus the amount of any payment that
      the
      lessee would be obligated to pay the lessor upon exercise of such option,
      discounted to its present value on the date of calculation at the Prime Rate;
      or
      (ii) the Present Value based on the lease terminating at its scheduled
      termination date.

     

    (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 Seventeen Million Dollars ($17,000,000.00)
      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 that Borrower will not permit the
      outstanding balance under the Line of Credit to exceed the Line of Credit Limit
      unless Borrower increases the Restricted Cash Deposit by an amount equal to
      the
      sum that would otherwise be overadvanced, in which case Borrower shall have
      the
      right to borrow an amount in excess of the Borrowing Base but not more than
      $17,000,000.00. Provided no Event of Default has occurred and is continuing
      at
      such time, Borrower may request (i) one year extensions of the Line of Credit
      Availability Period within 390 days of the then applicable Line of Credit
      Expiration Date, but Bank has no obligation to grant the extension and/or (ii)
      the addition to Borrower of an additional fund or funds managed by Manager
      or an
      Affiliate of Manager acceptable to Bank, but Bank has no obligation to grant
      the
      addition and/or (iii) in connection with any addition to Borrower pursuant
      to
      the immediately preceding clause (ii), the deletion from Borrower of a fund
      managed by Manager or an Affiliate of Manager, but Bank has no obligation to
      grant the deletion.

     

    (c)  Section
      3.2.a. of the Loan Agreement, entitled "Line of Credit Interest Rate," is
      modified by deleting "Prime Rate plus one quarter percent (P+0.25%)" and
      replacing it with "Prime Rate plus zero percent (P+0.00%)." 

     

    (d)  Section
      3.2.b. of the Loan Agreement, entitled "Line of Credit Optional Interest,"
      is
      modified by deleting "LIBO Rate, as defined below, plus two and three quarters
      percent (L+2.75%)" and replacing it with "LIBO Rate, as defined below, plus
      two
      and a half percent (L+2.50%)." 

     

    (e)  Section
      8.4 of the Loan Agreement, entitled "Minimum Debt Service Coverage Ratio,"
      is
      deleted and replaced in its entirety with the following:

     

     

     

     

    
      
        
        

      

      
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    Minimum
      Debt Service Coverage Ratio.
      To
      maintain as of the end of each fiscal quarter based on the combined financial
      results as reported on SEC Form 10-Q or 10-K, as applicable, of each entity
      comprising Borrower, a Debt Service Coverage Ratio of not less than 2.00 to
      1.00
      on a rolling four quarter basis.

     

    (f)  Section
      8.5 of the Loan Agreement, entitled "Tangible Net Worth," is deleted and
      replaced in its entirety with the following:

     

    Tangible
      Net Worth.
      To
      maintain as of the end of each fiscal quarter, based on the financial results
      of
      each entity comprising Borrower as reported on SEC Form 10-Q or 10-K, as
      applicable, of each entity comprising Borrower, a combined Tangible Net Worth
      of
      not less than Two Hundred Seventy-Five Million Dollars ($275,000,000.00).


     

    (g)  Section
      8.6 of the Loan Agreement, entitled "Leverage Ratio," is deleted and replaced
      in
      its entirety with the following:

     

    Leverage
      Ratio.
      To
      collectively maintain, and cause each entity comprising Borrower to maintain,
      as
      of the end of each fiscal quarter, based on the financial results as reported
      on
      SEC Form 10-Q or 10-K, as applicable, of each entity comprising Borrower, a
      ratio of Adjusted Total Liabilities to Tangible Net Worth not to exceed 0.5
      to
      1.0.

     

    (h)  Section
      8.7 of the Loan Agreement, entitled "Minimum Liquidity," is deleted and replaced
      in its entirety with the following:

     

    Minimum
      Liquidity.
      To
      maintain, as of the end of each fiscal quarter, based on the combined financial
      results as reported on the SEC Form 10-Q or 10-K, as applicable, of each entity
      comprising Borrower, Liquidity of at least Seven Million Dollars
      ($7,000,000.00).

     

    (i)  Section
      8.8 of the Loan Agreement, entitled "Restricted Cash Deposit," is deleted in
      its
      entirety.

     

    (j)  Section
      8.22 of the Loan Agreement, entitled "Operating/Business Accounts," is modified
      by deleting the last sentence thereof: "Borrower shall also open and maintain
      with Bank a lock box for Accounts Receivable collection."

     

    (k)  Section
      11 of the Loan Agreement, entitled “Miscellaneous,” is hereby amended to insert
      the following section at the end thereof:

     

    11.18
      Additional
      Collateral.
      With
      respect to any Person, that on or subsequent to the date of the Modification,
      (i) is or becomes a direct or indirect Subsidiary of any Borrower and (ii)
      Borrower elects to have one or more Eligible Borrowing Base Contracts to which
      such Subsidiary is a party added to the Borrowing Base and thereby contribute
      the assets related to such Eligible Borrowing Base Contract as Collateral,
      then
      Borrower shall cause such Subsidiary to execute and deliver to Bank such
      documentation to the Security Agreement as to (x) become a party to the Security
      Agreement and (y) grant Bank a lien on all of its assets for the benefit of
      Bank. 

     

     

     

     

    
      
        
        

      

      
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    (l)  Section
      9
      of the Security Agreement, entitled “Miscellaneous,” is hereby amended to insert
      the following section at the end thereof:

     

    9.9
      Additional
      Grantor.
      Each
      Subsidiary of the Grantor that becomes a party to this Security Agreement
      pursuant to Section 11.18 of the Loan Agreement shall become a Grantor for
      all
      purposes of this Security Agreement upon execution and delivery by such
      Subsidiary of an Assumption Agreement in the form of Annex
      I
      attached
      to the Modification.

     

    (m)  Section
      2
      of the Security Agreement is modified by adding the following after the last
      sentence thereof: “Notwithstanding the foregoing or anything to the contrary in
      this Security Agreement, the words “Accounts”, “Chattel Paper”, “Collateral”,
“Contracts”, “Documents”, “Equipment”, “Financial Assets”, “Fixtures”, “General
      Intangibles”, “Instruments”, “Inventory”, “Investment Property”, “Letter of
      Credit Rights”, and “Proceeds” shall not mean any “Accounts”, “Chattel Paper”,
“Collateral”, “Contracts”, “Documents”, “Equipment”, “Financial Assets”,
“Fixtures”, “General Intangibles”, “Instruments”, “Inventory”, “Investment
      Property”, “Letter of Credit Rights”, or “Proceeds” that are owned or receivable
      by or to which ICON Leasing Fund Eleven ULC and/or ICON U.S. Equipment, LLC
      is a
      party, as applicable. 

     

    (n)  Security
      Instruments.
      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 in form satisfactory to
      Bank;

     

    (b)  Such
      other documents or instruments as Bank shall reasonably require; 

     

    (c)  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;

     

    (d)  Payment
      of an extension fee of Forty Two Thousand Five Hundred Dollars ($42,500) to
      Bank; and

     

    (e)  Payment
      of Bank's reasonable attorney 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.

     

     

     

     

    
      
        
        

      

      
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    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. 

     

     

     

     

    


    
      
        
          
          

        

        
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    IN
      WITNESS WHEREOF, the parties have executed this Modification as of the day
      and
      year first above written.

     

    
      	
              ICON
                INCOME FUND EIGHT B L.P., 

              a
                Delaware limited partnership

              By: ICON
                CAPITAL CORP.,  its
                general partner

               

               

              By: /s/
                Thomas W. Martin  

              Thomas
                W. Martin 

              Chief
                Operating Officer and

              Chief
                Financial Officer

            	
              CALIFORNIA
                BANK & TRUST,
                

              a
                California banking corporation

               

               

              By: /s/
                J. Michael Sullivan  

              Name: J.
                Michael Sullivan

              Title: Vice
                President and  Relationship
                Manager

            
	
              Address
                where notices are to be sent:

               

              ICON
                INCOME FUND EIGHT B L.P.

              c/o
                ICON Capital Corp., its general partner

              100
                Fifth Avenue, 4th
                Floor

              New
                York, NY 10011

              Attention:
                General Counsel

              Attention:
                Thomas W. Martin, CFO

              Facsimile
                No.: (212) 418-4739

            	
              Address
                where notices are to be sent:

               

              South
                Bay Commercial Banking

              1690
                South El Camino Real

              San
                Mateo, CA 94402

            
	
               

              ICON
                INCOME FUND NINE, LLC, 

              a
                Delaware limited liability company

              By: ICON
                CAPITAL CORP.,  its
                manager

               

               

              By: /s/
                Thomas W. Martin  

              Thomas
                W. Martin 

              Chief
                Operating Officer and

              Chief
                Financial Officer

            	 
	
              Address
                where notices are to be sent:

               

              ICON
                INCOME FUND NINE, LLC

              c/o
                ICON Capital Corp., its manager

              100
                Fifth Avenue, 4th
                Floor

              New
                York, NY 10011

              Attention:
                General Counsel

              Attention:
                Thomas W. Martin, CFO

              Facsimile
                No.: (212) 418-4739

            	 


    

     

     

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    
 

    
      	
              ICON
                INCOME FUND TEN, LLC, 

              a
                Delaware limited liability company

              By: ICON
                CAPITAL CORP.,  its
                manager

               

               

              By: /s/
                Thomas W. Martin  

              Thomas
                W. Martin 

              Chief
                Operating Officer and

              Chief
                Financial Officer

            	 
	
              Address
                where notices are to be sent:

               

              ICON
                INCOME FUND TEN, LLC

              c/o
                ICON Capital Corp., its manager

              100
                Fifth Avenue, 4th
                Floor

              New
                York, NY 10011

              Attention:
                General Counsel

              Attention:
                Thomas W. Martin, CFO

              Facsimile
                No.: (212) 418-4739

            	 


    

    


    


    
      	
              ICON
                LEASING FUND ELEVEN, LLC, 

              a
                Delaware limited liability company

              By: ICON
                CAPITAL CORP.,  its
                manager

               

               

              By: /s/
                Thomas W. Martin  

              Thomas
                W. Martin 

              Chief
                Operating Officer and

              Chief
                Financial Officer

            	 
	
              Address
                where notices are to be sent:

               

              ICON
                LEASING FUND ELEVEN, LLC

              c/o
                ICON Capital Corp., its manager

              100
                Fifth Avenue, 4th
                Floor

              New
                York, NY 10011

              Attention:
                General Counsel

              Attention:
                Thomas W. Martin, CFO

              Facsimile
                No.: (212) 418-4739

            	 


    

    


     

     

    
 

    
      
        
          
          

        

        
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    Annex
      I
      to

     

    Security
      Agreement

     

    ASSUMPTION
      AGREEMENT, dated as of ________________, 20__, made by _______________________,
      a ______________ [limited liability company] (the “Additional
      Grantor”),
      in
      favor of California Bank & Trust, a California banking corporation, as
      lender (“Secured
      Party”)
      to the
      Loan Agreement referred to below. All capitalized terms not defined herein
      shall
      have the meaning ascribed to them in the Security Agreement referred to
      below.

     

    W
      I T
      N E S S E T H :

     

    WHEREAS,
      ICON Income Fund Eight B L.P., a Delaware limited partnership, and ICON Income
      Fund Nine, LLC, ICON Income Fund Ten, LLC and ICON Leasing Fund Eleven, LLC,
      Delaware limited liability companies (separately, and collectively,
“Borrower”),
      and
      Secured Party have entered into a Commercial Loan Agreement, dated as of August
      31, 2005, (as amended, supplemented, restated or otherwise modified from time
      to
      time, the “Loan
      Agreement”);

     

    WHEREAS,
      in connection with the Loan Agreement, the Borrower has
      entered into a Security Agreement, dated as of August 31, 2005 (as amended,
      supplemented, restated or otherwise modified from time to time, the
“Security
      Agreement”)
      in
      favor of the Secured Party; and

     

    WHEREAS,
      the Additional Grantor has agreed to execute and deliver this Assumption
      Agreement in order to become a party to the Security Agreement; 

     

    NOW,
      THEREFORE, IT IS AGREED:

     

    1.
      Security
      Agreement.
      By
      executing and delivering this Assumption Agreement, the Additional Grantor,
      as
      provided in Section 9.9 of the Security Agreement, hereby becomes a party to
      the
      Security Agreement as a Grantor thereunder with the same force and effect as
      if
      originally named therein as a Grantor and, without limiting the generality
      of
      the foregoing, hereby expressly assumes all obligations and liabilities of
      a
      Grantor thereunder. The
      Additional Grantor hereby represents and warrants that each of the
      representations and warranties contained in Section 4 of the Security Agreement
      is true and correct on and as the date hereof (after giving effect to this
      Assumption Agreement) as if made on and as of such date.  

     

    2.
      Governing
      Law.
      THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
      IN
      ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.

     

     

     

    
 

    
      
        
          
          

        

        
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    IN
      WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be
      duly
      executed and delivered as of the date first above written.

     

    ADDITIONAL
      GRANTOR

     

      

    
      
        	 
	 By:                                              
                
	     Name:
	     Title:


      

    

     

     

    
 

     

     

     

     

     

     

     

    
      
        
        

      

      
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