EXHIBIT 10.56.1
CHANGE IN TERMS AGREEMENT
This Change in Terms Agreement (this "CIT") is made as of and delivered on
April 17, 2008, by and between Mission West Properties, Inc., a Maryland
corporation ("Borrower"), and Heritage Bank of Commerce (the "Bank").
Recitals
A. As of March 4, 2008, the Bank and Borrower entered into certain
agreements (the "March 2008 Loan Documents") including but not limited to a
Revolving Credit Loan Agreement (the "Agreement") pursuant to which the Bank
agreed, subject to the terms and conditions set forth therein, to lend up to the
sum of Ten Million Dollars ($10,000,000.00) to Borrower, and pursuant to which
Borrower agreed to repay the loan on or before June 15, 2009.
B. The Borrower now desires to borrow up to Seventeen Million Five Hundred
Thousand Dollars and no cents ($17,500,000.00) from the Bank from time to time
to meet the working capital needs of the Borrower; and
C. The Bank is willing to provide such financing subject to the terms and
conditions set forth in this Agreement.
In consideration of the premises and the mutual promises herein contained,
Borrower and the Bank agree as follows:
Agreement
1. INCORPORATION OF RECITALS. Each of the foregoing Recitals is hereby
incorporated herein by this reference as though set forth in full herein.
2. COMMITMENT AMOUNT. The definition of "Commitment Amount" in Section 1.1
of the Revolving Credit Loan Agreement is hereby replaced in full by the
following: "Commitment Amount" shall mean, as of any applicable date of
determination, Seventeen Million Five Hundred Thousand Dollars
($17,500,000.00)."
3. MINIMUM LOAN FEE. The first sentence in Section 2.9.1 of the Agreement
is hereby deleted and replaced by the following: "The Borrower shall pay to the
Bank a minimum loan fee of Seventeen Thousand Five Hundred Dollars ($17,500.00)
(the "Minimum Loan Fee")."
4. CONDITIONS PRECEDENT. At the Bank's sole and absolute option and for its
benefit, the effectiveness of this CIT and Bank's obligations hereunder are
conditioned upon the satisfaction of each and all of the following conditions on
or before April 17, 2008:
(a) Borrower shall have paid to the Bank the sum of Seven Thousand
Five Hundred Dollars ($7,500.00) in order to bring its currently paid
Minimum Loan Fee of Ten Thousand Dollars to the required total of Seventeen
Thousand Five Hundred Dollars ($17,500,000.00).
(b) Borrower shall have paid one-half of Bank's attorneys' fees
incurred in preparing this Agreement and any related documents in the
current estimated sum of Nine Hundred Dollars ($900.00.), Borrower's share
Four Hundred Fifty Dollars ($450.00)
(c) Borrower shall have executed and delivered to the Bank an Amended
and Restated Revolving Credit Note (the "Amended Note") in the form
attached hereto as Exhibit A. All references in the Agreement to either the
"Revolving Credit Note" or the "Note" shall refer to the original Revolving
Credit Note until such time as Borrower executes and delivers the Amended
Note, after which time all references in the Revolving Credit Loan
Agreement to either the "Revolving Credit Note" or the "Note" shall refer
to the Amended Note.
(d) Borrower shall have provided to the Bank a copy of resolutions of
the Board of Directors of the Borrower in form satisfactory to the Bank in
its sole and absolute discretion authorizing the execution, delivery, and
performance of this CIT, the borrowing hereunder, and the Amended Note,
which shall have been certified by the Secretary or Assistant Secretary of
the Borrower as of the date of delivery as being complete, accurate, and in
effect by a certification in the form attached hereto as Exhibit B.
5. NO OTHER CHANGES TO MARCH 2008 LOAN DOCUMENTS. Except as expressly
stated in this CIT or the Amended Note, there are no other changes or
modifications to the March 2008 Loan Documents, and all terms of the March 2008
Loan Documents remain in effect.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this CIT to be
executed by their duly authorized officers as of the day and year first written
above.
MISSION WEST PROPERTIES, INC.
A Maryland corporation
By: /s/ Raymond V. Marino
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Print Name: Raymond V. Marino
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Its: President & COO
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HERITAGE BANK OF COMMERCE
By: /s/ Roxanne Vane
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Its: Senior Vice President
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AMENDED AND RESTATED REVOLVING CREDIT NOTE
$17,500,000.00 San Jose, California
April 17, 2008
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
HERITAGE BANK OF COMMERCE (the "Bank") at 150 Almaden Boulevard, San Jose,
California (or such other place as Bank may designate), on June 15, 2009 (the
"Termination Date"), the principal sum or so much of the principal sum of
Seventeen Million Five Hundred Thousand Dollars ($17,500,000.00) as may from
time to time have been advanced and be outstanding under that certain Revolving
Credit Loan Agreement dated March 4, 2008, between the undersigned and the Bank
(the "Agreement") plus all accrued but unpaid interest thereon. Capitalized
terms used herein without definition shall have the same meanings as in the
Agreement.
The unpaid principal amount of this Note shall bear interest at the rate
provided in the Agreement, which Agreement, as it may be amended from time to
time, is by this reference incorporated herein and made a part hereof. Interest
shall be payable to the extent accrued on the first day of each consecutive
calendar month, beginning March 4, 2008, with all remaining interest due and
payable on the Termination Date.
This Note is a Master Note under which sums must be repaid from time to
time, and under which Revolving Loans may be made by the Bank up to the
Commitment Amount, pursuant to the terms and conditions of the Agreement, and
the books and records of the Bank shall constitute prima facie evidence of the
amount of the Indebtedness at any time owing hereunder or under the Agreement,
provided, however, that the failure by the Bank so to record any such amount or
any error in so recording any such amount shall not limit or otherwise affect
the obligations of the Borrower under this Note or the Agreement to repay the
principal amount of all the Revolving Loans outstanding together with all
interest accrued or accruing thereon.
The unpaid principal amount of all Revolving Loans, unless accelerated in
accordance with the terms of the Agreement, if not paid sooner, will be due and
payable, together with all accrued and unpaid interest and all other amounts due
and unpaid under the Agreement, on the Termination Date.
Interest on the Revolving Loans is payable in arrears on the first day of
each month during the term of the Agreement and as set forth in the Agreement.
The Agreement provides for the payment by Borrower of various other charges and
fees in addition to interest charges as more fully set forth in the Agreement.
All payments of any amount becoming due under this Note shall be made in
the manner provided in Section 2.11 of the Agreement.
Reference is made to the Agreement for, among other things, the conditions
under which this Note may or must be paid in whole or in part prior to the
Termination Date (whether accelerated or otherwise).
If an Event of Default (as defined in the Agreement) occurs and is not
cured within the time provided for by the Agreement, the Bank may exercise any
one or more of the rights and remedies granted by the Agreement or any of the
Loan Documents or available under applicable law, including without limit the
right to accelerate this Note or the Indebtedness, and may set off against the
principal of and interest on this Note or against any other Indebtedness (i) any
amount owing by the Bank to the undersigned, (ii) any property of the
undersigned at any time in the possession of the Bank or any Affiliate (as that
term is defined in the Agreement) of the Bank and (iii) any amount in any
deposit or other account (including without limit an account evidenced by a
certificate of deposit) of the undersigned with the Bank or any Affiliate of the
Bank.
The undersigned and its successors and assigns and all accommodations
parties, guarantors and endorsers (i) waive presentment, demand, protest and
notice of dishonor, (ii) agree that no extension or indulgence to the
undersigned or release or non-enforcement of any security, with or without
notice, shall affect the obligations of any accommodation party, guarantor or
endorser, and (iii) agree to reimburse the holder of this Note for any and all
costs and expenses incurred in collecting or attempting to collect any and all
principal and interest under this Note (including, but not limited to, court
costs and attorney fees, whether in-house or outside counsel is used and whether
such costs and expenses are incurred in formal or informal collection actions,
federal bankruptcy proceedings, appellate proceedings, probate proceedings, or
otherwise, all as more specifically set forth in Sections 8.7 and 8.8 of the
Agreement). This Note shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, this Note has been delivered and accepted at Cupertino,
California and the undersigned has executed this Note as of the 17th day of
April, 2008.
MISSION WEST PROPERTIES, INC.
A Maryland corporation
By: /s/ Raymond V. Marino
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Print Name: Raymond V. Marino
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Its: President & COO
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