EXHIBIT 10.56.2
CHANGE IN TERMS AGREEMENT
THIS CHANGE IN TERMS AGREEMENT (this "CIT ") is made by and between
Heritage Bank of Commerce, a California banking corporation ("Bank"), with its
headquarters address at 000 Xxxxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 and
Mission West Properties, Inc., a Maryland corporation ("Borrower"), with its
principal address at 00000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000. This CIT
is executed on June 5, 2009 and is made effective upon the satisfaction of all
of the conditions precedent set forth herein (the "Effective Date") at San Jose,
California.
RECITALS
A. As of March 4, 2008, Bank and Borrower entered into certain agreements
(the "March 2008 Loan Documents") including but not limited to a Revolving
Credit Loan Agreement (the "Loan Agreement"), pursuant to which 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. Thereafter, pursuant to a Change in Terms Agreement dated April 17, 2008
(the "April 2008 CIT"), Bank and Borrower made certain changes to the March 2008
Loan Documents, including but not limited to revising the Loan Agreement to
provide for a Commitment Amount (as defined in the April 2008 CIT), to Seventeen
Million Five Hundred and 00/100 Dollars ($17,500,000.00).
C. The Termination Date (as defined in the March 2008 Loan Documents), is
June 15, 2009. Borrower has requested, and Bank has agreed, subject to the terms
and conditions of this CIT, to extend the Termination Date to September 15,
2009.
AGREEMENT
In consideration of the covenants, terms and conditions set forth herein,
and in consideration and for other good and valuable consideration, the parties
hereto agree as set forth below.
1. INCORPORATION BY REFERENCE. The Recitals set forth above are true and
correct and are incorporated herein by reference in this CIT, together with the
March 2008 Loan Documents, the April 2008 CIT and any other documents executed
by and between Bank and Borrower in connection with or after the March 2008 Loan
Documents (sometimes, collectively, the "Loan Documents"). All capitalized terms
not defined herein shall have the meaning given in the Loan Documents.
2. AMENDMENT OF DEFINITION OF TERMINATION DATE. The definition of
"Termination Date" in the Loan Agreement is hereby replaced by the following:
"`Termination Date' shall mean September 15, 2009."
3. CONDITIONS PRECEDENT. 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 June 5, 2009:
(a) Borrower shall have executed and delivered this CIT to Bank; and
(b) Borrower shall have paid the loan extension fee of Four Thousand
Three Hundred Seventy-five and 00/100 Dollars ($4,375.00) to Bank.
4. LEGAL EFFECT. Except as specifically provided herein, all of the terms
and conditions of the Loan Documents remain in full force and effect.
5. INTEGRATION. This CIT is an integrated agreement. Except as specifically
set froth herein, and except for the Loan Documents as modified hereby, it
supersedes all prior representations and agreements, if any, between the parties
to this CIT. This CIT and the Loan Documents as modified hereby contain the
entire and only understanding of the parties with respect to the subject matter
hereof and thereof, and may not be altered, amended or extinguished, except by a
writing signed by all parties.
IN WITNESS WHEREOF, the parties hereto have executed and entered into this CIT
effective as of the Effective Date first written above.
Heritage Bank of Commerce
a California corporation
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Title: Senior Vice President
-------------------------------------
Mission West Properties, Inc.
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: President & COO
-------------------------------------
