EXHIBIT 10.45.2
THIRD AMENDMENT TO PROMISSORY NOTE
THIS THIRD AMENDMENT TO PROMISSORY NOTE (the "Amendment"), is made as of
June11, 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 and by that certain
Second Amendment to Promissory Note dated as of March 29, 2004 (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 September 6, 2004; provided,
however, that the foregoing amendment is subject to Borrower's
satisfaction of the condition subsequent described in Section 3
hereof. In the event that Borrower shall fail to satisfy such
condition subsequent in accordance with the terms of Section 3 hereof,
then notwithstanding the extension of the Maturity Date as set forth
herein, such failure shall constitute an Event of Default under the
Loan Documents and Lender may, in its discretion, declare all of the
indebtedness evidenced by the Note to be immediately due and payable
and may exercise the other remedies available to Lender under the Loan
Documents or at law or in equity.
3. CONDITION SUBSEQUENT. Lender's agreement to extend the Maturity Date
as set forth in Section 2 above is subject to the satisfaction of the
condition subsequent set forth in this Section 3. Not later than July
6, 2004 Borrower shall either (a) grant to Lender a first priority
lien on commercial real property acceptable to Lender in Lender's sole
and absolute discretion owned by Borrower in fee simple and having an
"as-is" market value of not less than $7,570.000,00 as determined by a
subsequently ordered appraisal in form and substance satisfactory to
Lender (the "Additional Property"), or (b) make a principal prepayment
in respect of the indebtedness evidenced by the Note in an amount
sufficient to reduce the outstanding principal balance thereof to
$74,690,000.00. In the event that Borrower elects to grant to Lender a
first priority lien on the Additional Property as provided in clause
(a) above, Borrower shall be responsible for all of Lender's costs and
expenses incurred in connection therewith, including without
limitation, Lender's review of an ALTA/ACSM land survey, an appraisal
of the Additional Property, a Phase I environmental site assessment
with respect to the Additional Property, the fees and expenses of
Lender's outside counsel, and the premiums for a new policy of title
insurance or endorsements to Lender's existing policy of title
insurance. In the event that Borrower elects to pay the indebtedness
evidenced by the Note as provided in clause (b) above, Borrower shall
pay any prepayment premium required pursuant to the terms of Paragraph
14 of the Note.
4. REAFFIRMATION OF NOTE AND OTHER LOAN DOCUMENTS. Except as modified
pursuant to Section 2 hereof, the Note is unmodified and remains in
full force and effect.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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
----------------------------
Carl E. Berg
Chief Executive Officer
LENDER:
CITICORP USA, INC.,
a Delaware corporation
By: /s/ David Taylor
-------------------------------------
David Taylor
Vice President
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 September 6, 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
---------------------------------------
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
---------------------------
Carl E. Berg
Chief Executive Officer
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
---------------------------
Carl E. Berg
Chief Executive Officer
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
---------------------------
Carl E. Berg
Chief Executive Officer