CHANGE IN TERMS AGREEMENT
EXHIBIT
10.55.1
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/
Xxxxxxx X. Xxxxxx
|
Print Name:
|
Xxxxxxx
X. Xxxxxx
|
Its:
|
President
& COO
|
HERITAGE
BANK OF COMMERCE
|
|
By:
|
/s/
Xxxxxxx Xxxx
|
Its:
|
Senior
Vice President
|
AMENDED
AND RESTATED REVOLVING CREDIT NOTE
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 000 Xxxxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx (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.
A
Maryland corporation
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
Print Name:
|
Xxxxxxx
X. Xxxxxx
|
Its:
|
President
& COO
|