Exhibit 10.2





 


 





 




 





 


LOAN MODIFICATION  AGREEMENT 


 


This Loan  Modification  Agreement  (“Agreement”)  is  made  and  entered  as  of 


March  31, 
2013  between  CALIFORNIA  BANK  & 
TRUST, a California banking corporation ("Bank"),  and  ICON  LEASING 
FUND  TWELVE,  LLC, (“Borrower”).


 


RECITALS 


 


A.               
Pursuant to the terms of a Commercial Loan Agreement ("Loan Agreement") between  Bank  and 
Borrower  dated  as  of  May 
10,  2011,  Bank  agreed  to  make  a  revolving  Line  of
Credit available to Borrower.


 


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  obligations  under  the  Note and Loan Agreement were originally secured,
among  other  things, 
by  the  following: 


 


1.                 
A Security Agreement, dated the same date as the Loan Agreement, executed by  Borrower  in  favor  of  Bank  granting 
Bank  a  security  interest  in  Borrower’s  personal property (“Security 
Agreement”).  The  security 
interest  was  perfected 
through  a  UCC-1
Financing Statement filed with the Delaware Secretary of State.


 


D.                   
Borrower 
has  requested  additional  time to repay  the  indebtedness  owing 
under the Note.  Bank  is  agreeable  to  the  terms  set  forth  below. 


 


E.                
On  January  2,  2013,  ICON  Capital  Corp., a
Delaware  corporation,  converted  to ICON Capital,  LLC,  a  Delaware 
limited  liability  company, 
pursuant  to  the  provisions  of  Section
18-214 of  the  Delaware  Limited  Liability  Company  Act. 


 


TERMS


 


NOW, THEREFORE,  Borrower  and  Bank  agree  as  follows: 


 


1.                 
Adoption of Recitals. 
Borrower hereby represents and warrants
that each of the Recitals set  forth 
above  are true, 
accurate  and  complete.


 


2.                 
Acknowledgement of Debt.  Borrower acknowledges that there are no claims, demands,  offsets 
or  defenses  at  law  or  in  equity 
that  would  defeat 
or diminish  Bank’s 
right  to collect the indebtedness evidenced by  the documents
described in the Recitals (“Loan Documents”)
and to proceed to enforce the rights and  remedies  available  to  Bank  as  provided  in the Loan Documents or by law. Capitalized terms  in  this  Modification  shall  have  the  meanings given to  them  in  the  Loan  Documents unless otherwise defined herein.


 


3.                 
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  “Adjusted 
Total  Liabilities.” 


 


(b)            
Section 
1.1  of  the  Loan  Agreement,
entitled “Definitions,” is modified
by deleting the  definition  of  “Line  of  Credit  Expiration  Date” 
and  inserting  in  its
place the following:


 


“Line
of Credit Expiration Date” means March 31, 2015.


 


(c)                                   
Section 
1.1  of  the  Loan  Agreement,  entitled “Definitions,” is modified by adding a definition of “Total Liabilities” as follows:


 









 










 








    








“ Total Liabilities” shall
mean, as of the date of determination, 


the sum of  current liabilities plus long  term  liabilities  of  Borrower; 
all calculated in accordance 
with  GAAP, consistently applied. 


 


(d)          
Section 
8.5  of  the  Loan  Agreement,  entitled  “Tangible  Net  Worth,”  is  modified
by section  and  inserting  in  its
place
the following: 


 


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,  Tangible Net Worth of not less than One Hundred  Thirty  Million 
Dollars ($130,000,000.00) as of December
31, 2012.


 


(e)       
The  last  sentence 
of  section  2.1.a 
of the Loan Agreement,
entitled “Revolving Line of  Credit,” 
is  deleted. 


 


(f)       
Section 
8.4  of  the  Loan  Agreement,
entitled “Minimum Debt Service
Coverage Ratio,” is  deleted 
and  replaced  with  the  following 


 


Minimum Debt  Service 
Coverage  Ratio.  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, a Debt Service Coverage
Ratio  of  not  less  than 


2.00 to  1.00  on  a  rolling  four  quarter 
basis,  effective  as  of
December 31, 2012.


 


(g)       Section  8.6  of  the  Loan  Agreement,  entitled  “Leverage  Ratio,” 
is  deleted  and replaced with the following:


 


Leverage Ratio.  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,  a  ratio  of  Total Liabilities to Tangible
Net Worth not to exceed 2.00 to 1.00
effective as of December
31, 2012.


 


(h)     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


by any  amendments,  modifications,  extensions  or renewals of the same
which are hereafter agreed to in writing
by the parties.


 


4.                 
Conditions  Precedent.  The  modification 
of  the  Loan  Documents  under  Section 
3 above is  subject 
to  Borrower’s  compliance  with  the  following  conditions  precedent  to  Bank’s
complete
satisfaction: 


 


(a)           
Execution  of  this  Modification  by  Borrower delivery of  the  executed 
Modification 


the Bank  by  March  31,  2013; 


 


(b)          
Borrower 
shall  pay  a  renewal  fee  of  $38,000.00; 


 


(c)           
Borrower 
shall  pay  all  accrued 
interest  on  the  Line of
Credit  through  February 
28,  2013;  and 


 


(d)          
Borrower shall reimburse the Bank
for the attorneys’ fees incurred by 
Bank  in  preparation  of  this Modification.


 


5.                 
Borrower’s  Representations  and  Warranties.  Borrower  represents  and  warrants  to Bank as of the date of this
Modification and until repayment of all indebtedness of Borrower to
Bank:


 


(a)                   
Accuracy of Representations in
Modification   and Existing Loan Documents.  All
representations and


warranties made  and  given 
by  Borrower  in 
this  Modification


and the Loan Documents
are accurate and correct except to
the extent that any breach 
thereof  would  not  result  in  a  Material  Adverse 
Change.. 


 









 










 








    








(b)              
No  Default.  No  default 
has  occurred  and  is
continuing under the Loan Documents,
and no event has occurred and is continuing
which,  with  notice 
or the passage of time or both, would be a default which could
be reasonably  expected  to  result 
in  a  Material  Adverse
Change..


 


(c)               
Enforceable  Loan  Documents/No 
Conflicts.  The Loan Documents  and  this  Modification  are  legal,  valid 
and binding agreements of Borrower, enforceable in accordance with their respective terms.  This Modification does not conflict with any law, agreement, or obligation by which Borrower is  bound. 


 


6.                 
Borrower Acknowledgment.  Borrower  hereby 
acknowledges  and  agrees 
that: 


 


(a)                
No Breach by Bank.  Bank  has  not  breached  any duty to Borrower in connection with
the Loan Documents, 


and Bank  has  fully  performed  all  obligations  the  Bank  may
have had  or  now  has  to  Borrower 
and  Guarantors. 


 


(b)              
Interest,  Fees,  and  Other 
Charges.  All
interest, fees or other charges imposed,
accrued, or  collected by Bank
under the Loan Documents or this Modification, and the method of computing the interest,  fees,  or  other  charges, were and  are  proper 
and  agreed  to  by  Borrower 
and Guarantors and  were  properly  computed  and  collected. 


 


(c)               
No  Waiver.  By entering into this Modification, Bank does  not  waive 
any  existing  defaults 
or  any  defaults hereafter occurring,  and  Bank  does
not become obligated to waive any  condition  or  obligation  in  any  agreement
between or  among  any  of  the  parties 
hereto. 


 


(d)              
No Third Party Beneficiaries.  This  Modification  is not intended for, and shall not be construed  to  be  for,  the
benefit of  any  person  not  a  signatory  hereto. 


 


(e)               
Fair Consideration.  All payments
made by Borrower to  Bank  under  the  Loan  Documents  and  this
Modification  were  and  are 
for  fair  consideration  and reasonably equivalent value.


 


7.                 
Governing  Law.  This Modification shall be construed, governed and enforced in accordance  with  the  laws  of  the
State of California.


 


8.                 
Interpretation.  No  provision  of  this  Modification  is to be  interpreted  for  or  against Borrower or Bank because that party, or that party's representative, drafted such provision.


 


9.                 
No Impairment/Security.  Except  as  otherwise 
specifically  set  forth 
herein,  the Loan
Documents  shall 
each  remain  unaffected  by  this Modification
and all such documents shall remain in full force and effect.  Borrower’s payment and performance of Borrower’s various obligations to  Bank  under 
the  Loan  Documents,  including  all  extensions,  amendments,  renewals or replacements  thereof,  continue 
to  be  and  shall  be  secured 
by  the  liens  arising 
under  the  Loan Documents.  Nothing contained herein shall be deemed
a waiver of any of the rights and remedies
that Bank may have against
Borrower, or  of  any  of  Bank’s 
rights  and  remedies  arising out of the Loan Documents. 


 


10.             
Purpose  and  Effect  of 
Bank’s  Approval.  Bank’s 
approval  of  any  matter  in
connection with  the  Loan  Documents  shall 
be  for  the sole purpose of protecting
Bank’s security, rights, and  remedies  under 
the  Loan Documents.  No  such  approval
shall result  in  a  waiver  of any
default  of  Borrower.  In  no  event 
shall  Bank’s approval be a representation 
of  any  kind  by Bank with  regard  to  the  matter  being 
approved. 


 


11.             
Counterparts.  This
Modification may be executed in as many
counterparts as necessary or convenient, and by the  different  parties 
on  separate  counterparts each of which,


when so  executed,  shall  be  deemed  an  original,  but  all  such  counterparts  shall  constitute  but  one and the same agreement. 


 









 










 








    








12.             
Invalidity.  If any court of competent jurisdiction  determines  any  provision  of  this Modification or any of the Loan Documents to be invalid,  illegal  or  unenforceable,  that  portion shall be deemed severed from the rest, which shall remain
in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of this Modification or the Loan Documents. 


 


13.             
Successors  and  Assigns.  This  Modification  shall 
be binding upon and inure to the benefit of the parties hereto and their  respective  successors 
and  assigns. 


 


14.             
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, including
provisions on prepayment, late charges,  default interest and attorneys
fees. 


 


15.             
The 
Current  Status  of  the  Line  of  Credit. 
Borrower  hereby 
acknowledges  the following: (a)  except  as  modified  by  this  Modification,  the  Loan  Documents  remain  in  full  force and effect, and remains the binding obligation of Borrower; and (b) Borrower has no known or
suspected defense to its obligations under the
Loan Documents, and no claim or offset whatsoever against 
Bank  in  connection  with the Loan  Documents  or  otherwise. 


 


16.             
Entire Agreement.  This Modification and the Loan  Documents  constitute  the
entire, complete  and  exclusive  understanding  between  the  parties  regarding
the Loan and may not be modified, amended, or
terminated except by  a  written 
agreement  signed 
by  the  party against whom enforcement is sought. No modification, change or supplement of the Loan Documents and this Modification shall be
binding on Bank unless in writing signed by an authorized officer of Bank.  No
waiver of or any  acquiescence  to  any  Event 
of  Default  or  any
failure or  delay  by  Bank  in  enforcing  any  right  or  remedy  shall  be  construed  to  be  a  waiver,
acquiescence,  or  consent  to  any  preceding  or  subsequent 
Event  of  Default 
or  a  waiver  of  any right or remedy. 


 


17.             
Documentation. 
In addition to the instruments and documents mentioned or
referred to  herein,  Borrower  will,  at  Borrower’s  own  cost  and  expense, 
supply  Bank  with  such other instruments,  documents,  information  and  data  as  are  reasonably  necessary
for the purposes hereof, all of which shall be in form and  content 
as  reasonably  required 
by  Bank. 


 


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SIGNATURES 












 










 








    








 


 


 


 


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


 


 


ICON  LEASING 
FUND  TWELVE,  LLC,


a Delaware 
limited  liability  company  


 


By:      ICON  CAPITAL,  LLC, its
manager 


 


 


 


By:  /s/ Michael A. Reisner                            


     
Michael A. Reisner


         Co-President
and Co-Chief Executive Officer 


 


 


 


CALIFORNIA  BANK  & 
TRUST, 


a California  banking  corporation 


 


 


 


By:      /s/ J. Michael Sullivan             


J. Michael Sullivan 


First Vice President and Relationship Manager