REVOLVING CREDIT
SECURED PROMISSORY NOTE
("Note")
$50,000,000.00 March 1, 2000
FOR VALUE RECEIVED, Mission West Properties, L.P., a Delaware limited
partnership, Mission West Properties, L.P. I, a Delaware limited partnership,
Mission West Properties X.X. XX, a Delaware limited partnership, and Mission
West Properties, L.P. III, a Delaware limited partnership (collectively
"Borrower"), promises to pay to the order of Xxxx & Xxxx Enterprises, LLC, a
California limited liability company ("Lender") or its assigns, at 00000 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other place as the holder of this
Note may from time to time designate, the principal sum of Fifty Million Dollars
($50,000,000.00) (the "Credit Amount") or so much of that sum as may be advanced
under this Note from time to time by any holder, plus interest as computed
herein.
Interest on the principal sum of this Note from time to time outstanding will be
computed from the date of each advance of principal at LIBOR plus 1.30% (the
"Applicable Interest Rate"). Interest will be computed on the basis of a three
hundred sixty (360) day year and the actual number of days elapsed, which will
result in the payment of more interest than if a 365-day year were used.
All accrued and unpaid principal and interest shall be due and payable no later
than February 28, 2001.
Advances under this Note may be drawn by Xxxxxxxx, up to the Credit Amount, upon
not less than 5 days notice to Xxxxxx.
Each payment shall be credited first on the interest then due and the remainder
on the principal sum.
The undersigned agrees that the holder of this Note may, without notice to the
undersigned and without affecting the liability of the undersigned, accept
additional or substitute security for this Note, or release any security or any
party liable for this Note, or extend or renew this Note.
If the undersigned consist of more than one person or entity, their liability
and obligations under this Note will be joint and several. Borrower jointly and
severally waives diligence, presentment, protest and demand, notice of protest,
dishonor and non-payment of this Note, expressly agrees that this Note or any
payment hereunder, may be extended from time to time, and consents to the
acceptance of further security for this Note, including other types of security,
all without in any way affecting the liability of the Borrower. The right to
plead any and all statutes of limitations as a defense to any demand on this
Note, or on any guaranty hereof, or to any agreement to pay the same, or to any
demand secured by the Deed of Trust, or other security, securing this Note,
against Borrower, the holder of any property encumbered by the Deed of Trust or
other instrument securing this Note, and any guarantors or sureties, is
expressly waived by each and all said parties.
All amounts payable under this Note are payable in lawful money of the United
States, free from any offset, deduction or counterclaim. Checks will constitute
payment only when collected.
Upon any default in the payment of any amounts due under this Note or upon any
default under the Deed of Trust, the holder may, at its option and upon ten (10)
days' written notice to the undersigned, declare the entire unpaid principal sum
of this Note together with all accrued interest to be due and payable provided,
however, that if the undersigned should cure such default under this Note or the
Deed of Trust within the time period described above, the right of the holder to
declare the entire unpaid principal sum of this Note together with all accrued
interest immediately due and payable shall terminate as to such default as if no
such default occurred.
The undersigned agrees to pay all costs of collection when incurred, including
but not limited to reasonable attorneys' fees. If any suit or action is
instituted to enforce this Note, the undersigned promises to pay, in addition to
the costs and disbursements otherwise allowed by law, such sum as the court may
adjudge as reasonable attorneys' fees in such suit or action.
This Note may be prepaid in whole or in part at any time without penalty. Until
the maturity date, including all extensions thereof, amounts repaid may be
subsequently advanced under this Note, up to the Credit Amount.
This Note will be governed by the laws of the State of California.
This Note is a non-recourse loan secured by a Deed of Trust and Assignment of
Rents (the "Deed of Trust") executed by the undersigned in favor of Xxxxxx and
covering real property located in San Jose, California. The Deed of Trust
contains provisions for the acceleration of the maturity of this Note.
Mission West Properties, L.P.,
Mission West Properties, L.P. I,
Mission West Properties, X.X. XX, and
Mission West Properties, L.P. III
By: Mission West Properties, Inc., their general partner
/s/ Xxxx X. Xxxx
-----------------------------------------
By: Xxxx X. Xxxx, President
