EXHIBIT 10.45.1
SECOND AMENDMENT TO PROMISSORY NOTE
THIS SECOND AMENDMENT TO PROMISSORY NOTE (the "Amendment"), is made as of
March 29, 2004 by and between MISSION WEST PROPERTIES, L.P., a Delaware limited
partnership ("Borrower"), and CITICORP USA, INC., a Delaware corporation
("Lender") as follows:
RECITALS
A. In connection with a loan (the "Loan"), made by Lender to Borrower,
Borrower executed that certain Promissory Note, dated as of April 8, 2003,
payable to Lender, in the amount of $80,000,000, as amended by that certain
First Amendment to Promissory Note dated as of June 30, 2003 (as amended, the
"Note"). Borrower's obligations under the Note are secured, among other
security, by that certain Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing (the "Deed of Trust"), dated as of April
8, 2003 executed by Borrower, as trustor, in favor of Lender, as Beneficiary,
and recorded in the official records of Santa Clara County, California on April
8, 2003 as document number 16947181, and guaranteed by that certain Guaranty
(the "Guaranty"), dated as of April 8, 2003 executed by Carl E. Berg, an
individual, Mission West Properties, L.P. I, a Delaware limited partnership,
Mission West Properties, L.P. II, a Delaware limited partnership and Mission
West Properties, L.P. III, a Delaware limited partnership (collectively,
"Guarantor"). Borrower and Guarantor have also executed and delivered to Lender
that certain Environmental Indemnity Agreement (the "Environmental Indemnity")
dated April 8, 2003. The Note, the Deed of Trust, the Guaranty, the
Environmental Indemnity and the other documents, instruments and agreements
evidencing or securing the Loan are hereinafter referred to collectively as the
"Loan Documents".
B. Borrower has requested and Lender has agreed, subject to the terms of
this Amendment, to modify the terms of the Note to extend the Maturity Date (as
defined in the Note).
NOW, THEREFORE, in consideration of the foregoing and for other good
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Borrower hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Except as modified herein, terms defined in the Note shall
have the same meaning when used in this Amendment.
2. MODIFICATION TO NOTE. On and after the date of this Amendment, the
definition of "Maturity Date" set forth in Paragraph 1(a) of the Note shall be
amended and modified to mean May 27, 2004.
3. REAFFIRMATION OF NOTE AND OTHER LOAN DOCUMENTS. Except as modified
pursuant to Paragraph 2 hereof, the Note is unmodified and remains in full force
and effect.
4. CONDITIONS PRECEDENT. Before this Amendment becomes effective, the
following conditions shall be satisfied in a manner satisfactory to Lender in
the exercise of its reasonable judgment: (a) no Event of Default shall have
occurred and be continuing and no other event shall have occurred and be
continuing if the event, with notice or the passage of time or both, would be
such an Event of Default; (b) if requested by Lender, Borrower shall have
provided such title endorsements as Lender may request to insure the continuing
first-lien priority of the Deed of Trust; (c) no material adverse change shall
have occurred, or be reasonably likely to occur, in the Property or in
Borrower's or any Guarantor's business conditions (financial or otherwise),
operations, properties or prospects, or ability to repay the Loan; and (d) each
Guarantor shall have executed the reaffirmation of its obligations attached
hereto.
5. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby reaffirms all
of the representations and warranties set forth in the Loan Documents and
further represents and warrants that: (a) the recitals set forth above in the
Recitals are true, accurate and correct; (b) Borrower is the sole legal and
beneficial owner of the Property; (c) the Deed of Trust constitutes a valid,
first priority lien encumbering the Property and there are no other mortgages,
deeds of trust or other such liens encumbering the Property or any portion
thereof; (d) this Amendment constitutes the legal, valid and binding obligation
of Borrower enforceable in accordance with its terms; (e) the execution,
delivery and performance of this Amendment are within Borrower's power and
authority and have been duly authorized by all requisite partnership action, and
are not in contravention of any law, or of Borrower's certificate of limited
partnership or partnership agreement; (f) there exists no Event of Default under
the Note or any other Loan Document; and (g) there are no offsets, claims,
counterclaims, cross-claims or defenses with respect to the Loan.
6. GOVERNING LAW; SEVERABILITY. This Amendment shall be governed by and
construed under the internal laws (as opposed to the laws of conflicts) of the
State of California. In the event that any provision or clause of this Amendment
is construed by a court of competent jurisdiction to be void, invalid or
unenforceable, such construction shall not affect other provisions of this
Amendment which can be given effect without the void, invalid or unenforceable
provision, and to this end the provisions of this Amendment are declared to be
severable.
7. CAPTIONS. Titles and headings appearing in this Amendment are intended
solely for means of reference and are not intended to modify any of the
provisions of this Amendment.
8. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
between Borrower and Lender with respect to the subject matter of this Amendment
and may not be modified or amended in any manner except in writing executed and
delivered by Borrower and Lender.
9. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
each of which, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
set forth above.
BORROWER
MISSION WEST PROPERTIES, L.P.,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation
its general partner
By: /s/ Carl E. Berg
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Name: Carl E. Berg
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Title: CEO
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LENDER
CITICORP USA, INC.,
a Delaware corporation
By: /s/ David Taylor
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Name: David Taylor
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Title: Vice President
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REAFFIRMATION OF GUARANTORS
Guarantor hereby (a) represents and warrants to Lender that, if Guarantor is a
partnership, the execution, delivery, and performance of this Reaffirmation are
within its partnership powers and have been duly authorized by all necessary
partnership action; (b) represents and warrants to Lender that the execution,
delivery, and performance of this Reaffirmation shall not constitute a breach of
any other document, instrument or agreement to which it is a party or by which
its property is bound; (c) consents to the amendment of the Loan Documents
pursuant to and on the terms stated in the Amendment, including but not limited
to the extension of the Maturity Date to May 27, 2004; (d) acknowledges and
reaffirms its obligations owing to Lender under the Guaranty, the Environmental
Indemnity and any other Loan Documents to which it is a party; and (e) ratifies,
affirms, reaffirms, acknowledges, confirms agrees that each of the Guaranty, the
Environmental Indemnity and any other Loan Documents to which it is a party is
and shall remain in full force and effect and represents a valid and enforceable
obligation of the Guarantor.
GUARANTOR:
/s/ Carl E. Berg
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CARL E. BERG, an individual
MISSION WEST PROPERTIES, L.P. I,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation
its general partner
By: /s/ Carl E. Berg
----------------------------
Name: Carl E. Berg
--------------------------
Title: CEO
-------------------------
MISSION WEST PROPERTIES, L.P. II,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation
its general partner
By: /s/ Carl E. Berg
----------------------------
Name: Carl E. Berg
--------------------------
Title: CEO
-------------------------
MISSION WEST PROPERTIES, L.P. III,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation
its general partner
By: /s/ Carl E. Berg
----------------------------
Name: Carl E. Berg
--------------------------
Title: CEO
-------------------------