EXHIBIT 10.40.1
RECORDING REQUESTED BY
Northwestern Mutual Life
When Recorded Mail to:
The Northwestern Mutual Life
Insurance Company
Nadine T. Hansohn - Room N16WC
720 E. Wisconsin Avenue
Milwaukee, WI 53202
Loan No. 332757
FIRST AMENDMENT TO DEED OF TRUST
AND SECURITY AGREEMENT (FIRST PRIORITY)
AND
FIRST AMENDMENT TO DEED OF TRUST
AND SECURITY AGREEMENT (SECOND PRIORITY)
AND
FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT
OF LEASES AND RENTS
(Mission West Properties, L.P. II)
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RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
720 East Wisconsin Avenue - Rm N16WC
Milwaukee, WI 53202
Attn: Nadine T. Hansohn
Loan No. 332757 SPACE ABOVE THIS LINE FOR RECORDER'S USE
FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (FIRST PRIORITY) AND
FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT
(SECOND PRIORITY) AND
FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
(Mission West Properties, L.P. II)
THIS FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (First
Priority) AND FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (Second
Priority) AND THIS FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
(this "First Amendment"), is made and entered into as of the 5th day of
November, 2008 by and between MISSION WEST PROPERTIES, L.P. II, a Delaware
limited partnership, 10050 Bandley Drive, Cupertino, CA 95014, herein called
"Borrower", THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin
corporation, 720 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, herein
called "Lender":
RECITALS
A. Borrower has previously executed that certain Deed of Trust and Security
Agreement (First Priority) (the "First Priority Lien Instrument") in favor of
Lender, dated January 3, 2003 executed by Borrower and recorded January 9, 2003
as Document No. 16735209 in the Official Records of Santa Clara County,
California, covering certain real property (the "Property") located in the
County of Santa Clara, State of California and more particularly described in
Exhibit A attached thereto.
B. Borrower has previously executed that certain Deed of Trust and Security
Agreement and Assignment of Leases and Rents (Second Priority) (the "Second
Priority Lien Instrument") in favor of Lender, dated January 3, 2003 and
recorded January 9, 2003 as Document No. 16735203 in the Official Records of
Santa Clara County, California, covering the Property.
C. Borrower has previously executed that certain Absolute Assignment of
Leases and Rents (First Priority) (the "Assignment of Leases and Rents") in
favor of Lender, dated January 3, 2008 and recorded January 9, 2003 as Document
No. 16735206 in the Official Records of Santa Clara County, California,
assigning the leases and rents for the Property.
D. The parties hereto desire to enter in this First Amendment for the
purpose of amending the First Priority Lien Instrument, the Second Priority Lien
Instrument and the Assignment of Leases and Rents.
NOW, THEREFORE, in consideration of the foregoing facts and the covenants
contained herein and other valuable consideration receipt of which is hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Unless otherwise defined herein, words and terms used herein shall have
the same meaning as defined in the First Priority Lien Instrument, the Second
Priority Lien Instrument and the Assignment of Leases and Rents.
2. That Exhibit "A", Legal Description, attached to the First Priority Lien
Instrument shall be deleted and replaced with Exhibit "A" attached hereto.
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3. That Exhibit "B", Facilities List, attached to the First Priority Lien
Instrument shall be deleted and replaced with the Exhibit "B" attached hereto.
4. That the definition of "Note "on page four of the First Priority Lien
Instrument is hereby amend and restated as follow:
"Note: The Promissory Note dated January 3, 2003 executed by Grantor
in the original principal amount of FORTY-ONE MILLION THREE HUNDRED
NINETEEN THOUSAND NINE HUNDRED SEVENTY-SIX Dollars ($41,319,976.00),
payable to Beneficiary or its order, with final maturity no later than
February 1, 2013, as amended by that certain First Amendment to Promissory
Note dated November 4, 2008, amending the principal amount of the
Promissory Note to be Nine Million Five Hundred Fifteen Thousand Eight
Hundred Seventy-Seven Dollars ($9,515,877.00), and with interest as therein
expressed, and all modifications, renewals or extensions of such Promissory
Note."
5. That Exhibit "A", Legal Description, attached to the Second Priority
Lien Instrument shall be deleted and replaced with the Exhibit "A" attached
hereto.
6. That Exhibit "B", Facilities List, attached to the Second Priority Lien
Instrument shall be deleted and replace with the Exhibit "B" attached hereto.
7. That the definition of "Notes" on pages four and five of the Second
Priority Lien Instrument is hereby amend and restated as follow:
"Notes: The Promissory Note dated January 3, 2008 executed by Mission
West Properties, L.P. I, a Delaware limited partnership in the original
principal amount of Twenty Nine Million Eight Hundred Eleven Thousand Three
Hundred Sixty-Nine Dollars ($29,811,369.00) as amended by that certain
First Amendment To Promissory Note dated November 4, 2008, amending the
principal balance of such Promissory Note to be Twenty-Three Million One
Hundred Forty-Two Thousand Six Hundred Thirty-One Dollars ($23,142,631.00),
payable to Beneficiary or its order, and the Promissory Note of dated
January 3, 2008 executed by Mission West Properties, L.P., a Delaware
limited partnership in the original principal amount of Twenty Eight
Million Eight Hundred Sixty-Eight Thousand Six Hundred Fifty-Five Dollars
($28,868,655.00) as amended by that certain First Amendment To Promissory
Note dated November 4, 2008, amending the principal balance of such
Promissory Note to be Forty-Eight Million Nine Hundred Sixty-Eight Thousand
Five Hundred Forty-One Dollars ($48,968,541.00), payable to Beneficiary or
its order, and each with final maturity no later than February 1, 2013 and
with interest as therein expressed, and all modifications, renewals or
extensions of such Promissory Notes."
8. That the definition of "Other Note" on page five of the Second Priority
Lien Instrument is hereby amend and restated as follow:
"Other Note: The Promissory Note dated January 3, 2003 executed by
Grantor in the original principal amount of Forty One Million Three Hundred
Nineteen Thousand Nine Hundred Seventy-Six Dollars ($41,319,976.00) as
amended by that certain First Amendment To Promissory Note dated November
4, 2008, amending the principal balance of such Promissory Note to be Nine
Million Five Hundred Fifteen Thousand Eight Hundred Seventy-Seven Dollars
($9,515,877.00), payable to Beneficiary or its order, with final maturity
no later than February 1, 2013 and with interest as therein expressed, and
all modifications, renewals or extensions of such Promissory Note."
9. That Exhibit "A", Legal Description, attached to the Assignment of
Leases and Rents shall deleted and replaced with the Exhibit "A" attached
hereto.
10. That except as hereby amended the said First Priority Lien Instrument,
the Second Priority Lien Instrument and the Assignment of Leases and Rents shall
remain in full force and effect, unchanged and in all respects, ratified and
confirmed.
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11. That nothing herein contained shall affect the priority of the First
Priority Lien Instrument, the Second Priority Lien Instrument or the Assignment
of Leases and Rents over other liens, charges, encumbrances or conveyances nor
shall it release or change the liability of any party who may now or hereafter
be liable, primarily or secondarily, under or on account of the Note, Notes or
Other Notes, as hereinafter defined.
(Remainder of the page intentionally left blank)
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IN WITNESS WHEREOF, this First Amendment has been executed by the undersigned as
of the date and year first above written.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
a Wisconsin corporation
By: Northwestern Investment Management Company,
LLC, a Delaware limited liability company,
its wholly-owned affiliate and authorized
representative
By: /S/ Michael P. Cusick
----------------------------------------
Michael P. Cusick
Managing Director
Attest: /S/ Donna L. Lemanczyk
------------------------------------
Donna L. Lemanczyk
Assistant Secretary
CALIFORNIA ACKNOWLEDGMENT
ALL-PURPOSE
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
On November 5, 2008, before me, Janet M. Szukalski, a Notary Public, personally
appeared Michael P. Cusick and Donna L. Lemanczyk, who proved to me on the basis
of satisfactory evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
persons, or the entity upon behalf of which the persons acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature /S/ Janet M. Szukalski
----------------------------------------
Janet M. Szukalski
(Place Notary Seal Above) Name (typed or printed)
My Commission expires: April 22, 2012
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MISSION WEST PROPERTIES, L.P. II,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation, its general
partner
By: /S/ Raymond V. Marino
-------------------------------------
Name: Raymond V. Marino
-----------------------------------
Title: President & COO
----------------------------------
CALIFORNIA ACKNOWLEDGMENT
ALL-PURPOSE
STATE OF California )
)ss.
COUNTY OF Santa Clara )
On November 7, 2008 , before me, Vanessa Almanza , a Notary Public, personally
appeared Raymond V. Marino , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature /S/ Vanessa Almanza
---------------------------
Vanessa Almanza
(Place Notary Seal Above) Name (typed or printed)
My Commission expires: March 29, 2011
This instrument was prepared by Brenda Stugelmeyer, Attorney, for The
Northwestern Mutual Life Insurance Company, 720 East Wisconsin Avenue,
Milwaukee, WI 53202.
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First Priority Lien Instrument
&
Second Priority Lien Instrument
&
First Priority Absolute Assignment
Exhibit "A"
(Mission West II)
PROPERTY ONE:
All that certain real property situated in the City of San Jose, County of Santa
Clara, State of California, described as follows:
Parcel 2, as shown on the Parcel Map filed for record in the Office of the
Recorder of the County of Santa Clara, State of California on November 26, 1979,
in Book 455 of Maps, Page(s) 1 and 2.
Assessors Parcel No: 706-09-023
PROPERTY TWO:
Parcel 1, as shown on that Parcel Map filed for record in the Office of the
Recorder of the County of Santa Clara, State of California on May 22, 1980, in
Book 463 of Maps, Page(s) 43 and 44.
Assessors Parcel No: 706-02-034
PROPERTY THREE:
Parcel 7, as shown on that Parcel Map filed for record in the Office of the
Recorder of the County of Santa Clara, State of California on December 5, 1984,
in Book 536 of Maps, Page(s) 41, 42 and 43.
Assessors Parcel No: 086-33-092
PROPERTY FOUR:
Parcel 3 as shown on that Parcel Map filed for recorded in the Office of the
Recorder of the County of Santa Clara, State of California on December 5, 1984,
in Book 536 of Maps, Page(s) 41, 42 and 43.
Assessors Parcel No: 086-41-017 & 086-41-018
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First Priority Lien Instrument
&
Second Priority Lien Instrument
Exhibit "B"
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