EXHIBIT 10.54
WHEN RECORDED RETURN TO:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (this "Agreement") is made as of the 26
day of July, 2005, by and between MISSION WEST PROPERTIES, L.P., a Delaware
limited partnership, whose address is 00000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000 ("Borrower"), and ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, a
Minnesota corporation, whose address is c/o Allianz of America, Inc., 00 Xxxxxx
Xxxxx Xxxx, Post Office Box 5160, Westport, Connecticut, 06881-5160, Attn: Real
Estate Department ("Lender").
WITNESSETH:
WHEREAS, Lender has made a mortgage loan in the amount of $25,800,000.00
(the "Loan") to Borrower, as evidenced by a Secured Installment Note in the
amount of the Loan dated April 6, 2005 (the "Note"); and
WHEREAS, the Loan is secured by Deed of Trust, Security Agreement, Fixture
Filing with Absolute Assignment of Rents dated April 6, 2005, granted by
Borrower for the benefit of Lender, and recorded on April 6, 2005, as Document
No. 18305259 (the "Deed of Trust"), and by an Absolute Assignment of Leases,
Rents and Income dated April 6, 2005, given by Borrower to Lender, and recorded
on April 6, 2005, as Document No. 10305260 (the "Assignment"), encumbering the
"Property," as defined in the Deed of Trust, including the real property
described on Exhibit A, attached hereto (the Note, Deed of Trust, Assignment,
and all other documents or instruments evidencing or securing the Loan are
hereinafter referred to as the "Security Documents"); and
WHEREAS, certain obligations of Borrower under the Loan have been
guaranteed by Mission West Properties, Inc. ("Guarantor") pursuant to a Limited
Guaranty dated April 6, 2005 (the "Guaranty"); and
WHEREAS, Lender has agreed to make a new loan to Borrower and Mission West
Properties I, L.P., in the amount of $125,000,000.00, to be secured by certain
real property in Santa Xxxxx County, California (the "New Loan"); and
WHEREAS, Lender has agreed to make the New Loan on the condition that
Borrower modify the Deed of Trust to provide that a default by Borrower under
the New Loan will constitute a default under the Deed of Trust and the Loan; and
WHEREAS, Borrower has agreed to Lender's conditions for the New Loan and
Lender and Borrower have agreed to amend the Security Documents as hereinafter
set forth.
NOW, THEREFORE, in consideration of the agreement of Lender to make the New
Loan, and of the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree as follows:
1. AMENDMENT OF NOTE. The Note is hereby amended by deleting therefrom
Paragraph 1 in its entirety and by substituting the following therefor:
1. PAYMENT. Said principal sum, and interest as herein provided to
accrue on the unpaid principal, shall be paid as follows:
(a) On August 10, 2005, Borrower shall make a payment of
principal and interest in the amount of $178,351.00.
(b) On each "Payment Date" to and including July 10, 2025,
payments of principal and interest in the amount of $176,713.00 shall
be due and payable. "Payment Date" means the tenth (10th) day of each
consecutive calendar month for the term of this Note commencing
September 10, 2005. The payments due under this subparagraph (b) are
each called a "Monthly Installment."
(c) The entire remaining principal amount, together with any
accrued and unpaid interest (the "Final Installment"), shall be due
and payable in full on August 10, 2025 (the "Maturity Date").
(d) Interest shall be computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) months of thirty (30)
days each.
2. AMENDMENT OF DEED OF TRUST. (a) Section 1.13 of the Deed of Trust is
hereby deleted in its entirety and the following is substituted therefor:
1.13 Financial Statements/Records. Borrower shall deliver or
cause to be delivered to Lender, within ninety (90) days after the end
of each of the respective party's fiscal years, (i) an annual
operating statement of income and expenses (which shall be audited if
an Event of Default exists) with respect to the operation of the
Property, in reasonable detail and certified by the chief financial
officer or manager of Borrower as complete and correct in all material
respects, (ii) a financial statement of Mission West Properties, Inc.,
a Maryland corporation, the general partner of Borrower ("Principal")
(which shall be audited if an Event of Default exists), prepared in
accordance with generally accepted accounting principles, consistently
applied, and certified as complete and correct in all material
respects by the chief financial officer of Principal, and (iii)
financial statements of all tenants under leases of the Property, if
available according to such leases. Borrower agrees to keep adequate
books and records of account, and shall permit Lender, and its agents,
accountants and attorneys, upon reasonable prior notice, to visit and
inspect the Property and examine the Property's books and records of
account at Borrower's office during normal business hours, and to
discuss the Property's affairs, finances and accounts with Borrower,
at such reasonable times as Lender may request. Such statements shall
be prepared in a form acceptable to Lender, to include, without
limitation, a current leasing summary (which shall disclose, among
other things, names of tenants, square footage of leased area,
commencement dates and expiration dates of the leases as well as
concessions granted to Lessees), gross rental income, other income,
real estate taxes, insurance, operating expenses and depreciation
deduction accompanied by financial statements received by Borrower
from tenants. If the operating statements for the Property provided by
Borrower are not in a form acceptable to Lender or Borrower fails to
furnish such statements and reports, Lender shall have the right to
audit the respective books and records of the Property at the expense
of Borrower and if Borrower prevents Lender from conducting such
audit, Lender may at the election of Lender declare this Deed of Trust
in default.
(b) Section 4.1 of the Deed of Trust is hereby amended by adding
thereto the following new subparagraph (h):
(h) There shall exist an "Event of Default" under that certain
Deed of Trust, Security Agreement, Fixture Filing with Absolute
Assignment of Rents dated July ___, 2005, granted by Mission West
Properties, L.P. and Mission West Properties, L.P. I, d/b/a Mission
West Properties I, L.P., for the benefit of Lender, and recorded July
___, 2005, as Instrument Number _____________, in the Records of Santa
Xxxxx County, California, or under the Note secured by said Deed of
Trust, or under any other "Security Documents" as defined in said Deed
of Trust.
3. SECURITY DOCUMENTS TO CONTINUE IN EFFECT. Except as herein modified and
amended, the Note, Deed of Trust and all Security Documents shall continue in
full force and effect in accordance with their terms.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. In the event that any
provision or clause of this Agreement conflicts with applicable law, such
conflicts shall not affect other provisions of this Agreement which can be given
effect without the conflict provisions and to this end the provisions of this
Agreement are declared to be severable.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions set forth herein.
This Agreement may only be modified or amended in writing by an agreement
executed by all parties hereto.
6. HEADINGS. The headings used herein are for convenience only and are not
to be used in interpreting this Agreement.
7. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be an original, and all of which shall constitute the
complete Agreement. One complete, original Agreement shall be attached to the
Note, and one complete, original Agreement shall be recorded in the Records of
Santa Xxxxx County, California.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower and Lender have executed this Loan
Modification Agreement as of the day and year first above written.
MISSION WEST PROPERTIES, L.P.,
a Delaware limited partnership
By: Mission West Properties, Inc.,
a Maryland corporation,
General Partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
ALLIANZ LIFE INSURANCE COMPANY
OF NORTH AMERICA,
a Minnesota corporation
By:
---------------------------
Name:
-------------------------
Title:
------------------------
By:
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Name:
-------------------------
Title:
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CONSENT OF GUARANTOR
The below entity, as "Guarantor" under the Guaranty with respect to the
Loan described in the foregoing Agreement, hereby consents to the terms and
provisions of the foregoing Agreement, and hereby ratifies and confirms said
Agreement, and declares that the terms of the Guaranty, and the liabilities and
obligations of the Guarantor thereunder shall be and continue to be in full
force and effect with respect to the Loan and the Security Documents, as
modified and amended by the foregoing Agreement.
MISSION WEST PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
