EXHIBIT 10.34.1
Loan No. 332757
FIRST AMENDMENT TO PROMISSORY NOTE
(Mission West Properties, L.P. II)
THIS FIRST AMENDMENT TO PROMISSORY NOTE (this "First Amendment") is made as
of the 5th day of November, 2008 between, MISSION WEST PROPERTIES, L.P.II, a
Delaware limited partnership, 10050 Bandley Drive, Cupertino, CA 95014, herein
called "Borrower", and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation, 720 East Wisconsin Avenue, Milwaukee, Wisconsin 53202,
hereinafter called "Northwestern".
RECITALS
WHEREAS, Northwestern is the owner of a certain Promissory Note executed by
MISSION WEST PROPERTIES, L.P. II on January 3, 2003 in the original principal
amount of FORTY-ONE MILLION THREE HUNDRED NINETEEN THOUSAND NINE HUNDRED
SEVENTY-SIX DOLLARS ($41,319,976.00), (the "Note") secured by, among other
security, i) a lien against certain property in the County of Santa Clara, City
of San Jose and the City of Milpitas, State of California as more particularly
described in that certain Deed of Trust and Security Agreement (First Priority)
dated January 3, 2003 executed by Borrower and recorded January 9, 2003 as
Document No. 16735209 in the records of Santa Clara County, California, as
amended by that certain 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.) dated of even date herewith between Lender and
Borrower (the "First Lien Instrument"); ii) a lien against certain property in
the County of Santa Clara, City of San Jose, State of California as more
particularly described in that certain Deed of Trust and Security Agreement
(Second Priority) dated January 3, 2003 executed by Mission West Properties,
L.P. ("MW") and recorded January 9, 2003 as Document No. 16735207 in the records
of Santa Clara County, California, as amended by that certain 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.) dated of
even date herewith between Lender and MW (the "MW Second Lien Instrument"); and
iii) a lien against certain property in the County of Santa Clara, City of Santa
Clara and City of Cupertino, State of California, as more particularly described
in that certain Deed of Trust and Security Agreement and Assignment of Leases
and Rents (Second Priority) dated January 3, 2003, executed by Mission West
Properties, L.P. I ("MWI") and recorded January 9, 2003 as Document No. 16735208
in the records of Santa Clara County, California, as amended by that certain
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.) dated of even date herewith between Lender and MWI (the "MWI
Second Lien Instrument");
AND WHEREAS, Northwestern has agreed to amend certain terms of the Note.
NOW, THEREFORE, in consideration of the above and of the mutual agreements
herein contained, the undersigned parties agree to the following:
1. Unless otherwise defined herein or otherwise indicated, capitalized
words and terms used but not defined herein shall have the meaning ascribed to
them in the Note.
2. The amount of the Promissory Note shall be amended from FORTY-ONE
MILLION THREE HUNDRED NINETEEN THOUSAND NINE HUNDRED SEVENTY-SIX DOLLARS
($41,319,976.00) TO NINE MILLION FIVE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED
SEVENTY-SEVEN DOLLARS ($9,515,877.00).
3. The monthly payment amount of principal and interest shall be amended
from $287,512.00 to $81,117.00.
4. Schedule 1 attached to the Note is deleted and replaced with the new
Schedule 1 attached hereto.
5. This First Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, and it shall not be necessary in making
proof of this First Amendment to produce or account for more than one such
counterpart. Separate counterparts of this First Amendment may be executed by
the parties hereto to the same effect as if all the parties had executed the
same counterpart.
6. Except as hereby amended the Note shall remain in full force and effect,
unchanged and in all respects, ratified and confirmed.
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7. Nothing herein contained shall affect the priority of the Lien
Instrument, the MW Second Lien Instrument and the MWI Second Lien Instrument
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.
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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
(corporate seal)
MISSION WEST PROPERTIES, L.P.,
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
--------------------------------------
(Consent of Guarantor and signature follows)
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CONSENT OF GUARANTOR:
The undersigned guarantor, who is a party under that certain Guarantee of
Recourse Obligations dated as of June 3, 2003, joins in the execution of this
document for the purpose of acknowledging the above. The undersigned guarantor
confirms that, except as herein modified, the Guarantee of Recourse Obligations
remains in full force and effect, unchanged and in all respects ratified and
confirmed.
GUARANTOR:
MISSION WEST PROPERTIES, INC.,
a Maryland corporation
By: /S/ Raymond V. Marino
----------------------------------------
Name: Raymond V. Marino
--------------------------------------
Title: President & COO
-------------------------------------
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SCHEDULE 1
Promissory Notes
Promissory Note dated January 3, 2003 executed by Mission West Properties, L.P.
in the original principal amount of $28,868,655.00, as amended by that First
Amendment To Promissory Note dated November 5, 2008 now in the principal amount
of $49,151,169.00.
Promissory Note dated January 3, 2003 executed by Mission West Properties, L.P.
I in the original principal amount of $29,811,369.00, as amended by that First
Amendment To Promissory Note dated November 5, 2008 now in the principal amount
of $23,228,942.00.
Promissory Note dated January 3, 2003 executed by Mission West Properties, L.P.
II in the original principal amount of $41,319,976.00, as amended by that First
Amendment To Promissory Note dated November 5, 2008 now in the principal amount
of $9,551,366.00.
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