EX-10 4 exh10_401.txt EXHIBIT 10.40.1 EXHIBIT 10.40.1 RECORDING REQUESTED BY Northwestern Mutual Life When Recorded Mail to: The Northwestern Mutual Life Insurance Company Nadine T. Hansohn - Room N16WC 720 E. Wisconsin Avenue Milwaukee, WI 53202 Loan No. 332757 FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (FIRST PRIORITY) AND FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (SECOND PRIORITY) AND FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT OF LEASES AND RENTS (Mission West Properties, L.P. II) - 1 - RECORDING REQUESTED BY WHEN RECORDED MAIL TO The Northwestern Mutual Life Ins. Co. 720 East Wisconsin Avenue - Rm N16WC Milwaukee, WI 53202 Attn: Nadine T. Hansohn Loan No. 332757 SPACE ABOVE THIS LINE FOR RECORDER'S USE FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (FIRST PRIORITY) AND FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (SECOND PRIORITY) AND FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT OF LEASES AND RENTS (Mission West Properties, L.P. II) THIS FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (First Priority) AND FIRST AMENDMENT TO DEED OF TRUST AND SECURITY AGREEMENT (Second Priority) AND THIS FIRST AMENDMENT TO ABSOLUTE ASSIGNMENT OF LEASES AND RENTS (this "First Amendment"), is made and entered into as of the 5th day of November, 2008 by and between MISSION WEST PROPERTIES, L.P. II, a Delaware limited partnership, 10050 Bandley Drive, Cupertino, CA 95014, herein called "Borrower", THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, 720 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, herein called "Lender": RECITALS A. Borrower has previously executed that certain Deed of Trust and Security Agreement (First Priority) (the "First Priority Lien Instrument") in favor of Lender, dated January 3, 2003 executed by Borrower and recorded January 9, 2003 as Document No. 16735209 in the Official Records of Santa Clara County, California, covering certain real property (the "Property") located in the County of Santa Clara, State of California and more particularly described in Exhibit A attached thereto. B. Borrower has previously executed that certain Deed of Trust and Security Agreement and Assignment of Leases and Rents (Second Priority) (the "Second Priority Lien Instrument") in favor of Lender, dated January 3, 2003 and recorded January 9, 2003 as Document No. 16735203 in the Official Records of Santa Clara County, California, covering the Property. C. Borrower has previously executed that certain Absolute Assignment of Leases and Rents (First Priority) (the "Assignment of Leases and Rents") in favor of Lender, dated January 3, 2008 and recorded January 9, 2003 as Document No. 16735206 in the Official Records of Santa Clara County, California, assigning the leases and rents for the Property. D. The parties hereto desire to enter in this First Amendment for the purpose of amending the First Priority Lien Instrument, the Second Priority Lien Instrument and the Assignment of Leases and Rents. NOW, THEREFORE, in consideration of the foregoing facts and the covenants contained herein and other valuable consideration receipt of which is hereby acknowledged, Borrower and Lender hereby agree as follows: 1. Unless otherwise defined herein, words and terms used herein shall have the same meaning as defined in the First Priority Lien Instrument, the Second Priority Lien Instrument and the Assignment of Leases and Rents. 2. That Exhibit "A", Legal Description, attached to the First Priority Lien Instrument shall be deleted and replaced with Exhibit "A" attached hereto. - 2 - 3. That Exhibit "B", Facilities List, attached to the First Priority Lien Instrument shall be deleted and replaced with the Exhibit "B" attached hereto. 4. That the definition of "Note "on page four of the First Priority Lien Instrument is hereby amend and restated as follow: "Note: The Promissory Note dated January 3, 2003 executed by Grantor in the original principal amount of FORTY-ONE MILLION THREE HUNDRED NINETEEN THOUSAND NINE HUNDRED SEVENTY-SIX Dollars ($41,319,976.00), payable to Beneficiary or its order, with final maturity no later than February 1, 2013, as amended by that certain First Amendment to Promissory Note dated November 4, 2008, amending the principal amount of the Promissory Note to be Nine Million Five Hundred Fifteen Thousand Eight Hundred Seventy-Seven Dollars ($9,515,877.00), and with interest as therein expressed, and all modifications, renewals or extensions of such Promissory Note." 5. That Exhibit "A", Legal Description, attached to the Second Priority Lien Instrument shall be deleted and replaced with the Exhibit "A" attached hereto. 6. That Exhibit "B", Facilities List, attached to the Second Priority Lien Instrument shall be deleted and replace with the Exhibit "B" attached hereto. 7. That the definition of "Notes" on pages four and five of the Second Priority Lien Instrument is hereby amend and restated as follow: "Notes: The Promissory Note dated January 3, 2008 executed by Mission West Properties, L.P. I, a Delaware limited partnership in the original principal amount of Twenty Nine Million Eight Hundred Eleven Thousand Three Hundred Sixty-Nine Dollars ($29,811,369.00) as amended by that certain First Amendment To Promissory Note dated November 4, 2008, amending the principal balance of such Promissory Note to be Twenty-Three Million One Hundred Forty-Two Thousand Six Hundred Thirty-One Dollars ($23,142,631.00), payable to Beneficiary or its order, and the Promissory Note of dated January 3, 2008 executed by Mission West Properties, L.P., a Delaware limited partnership in the original principal amount of Twenty Eight Million Eight Hundred Sixty-Eight Thousand Six Hundred Fifty-Five Dollars ($28,868,655.00) as amended by that certain First Amendment To Promissory Note dated November 4, 2008, amending the principal balance of such Promissory Note to be Forty-Eight Million Nine Hundred Sixty-Eight Thousand Five Hundred Forty-One Dollars ($48,968,541.00), payable to Beneficiary or its order, and each with final maturity no later than February 1, 2013 and with interest as therein expressed, and all modifications, renewals or extensions of such Promissory Notes." 8. That the definition of "Other Note" on page five of the Second Priority Lien Instrument is hereby amend and restated as follow: "Other Note: The Promissory Note dated January 3, 2003 executed by Grantor in the original principal amount of Forty One Million Three Hundred Nineteen Thousand Nine Hundred Seventy-Six Dollars ($41,319,976.00) as amended by that certain First Amendment To Promissory Note dated November 4, 2008, amending the principal balance of such Promissory Note to be Nine Million Five Hundred Fifteen Thousand Eight Hundred Seventy-Seven Dollars ($9,515,877.00), payable to Beneficiary or its order, with final maturity no later than February 1, 2013 and with interest as therein expressed, and all modifications, renewals or extensions of such Promissory Note." 9. That Exhibit "A", Legal Description, attached to the Assignment of Leases and Rents shall deleted and replaced with the Exhibit "A" attached hereto. 10. That except as hereby amended the said First Priority Lien Instrument, the Second Priority Lien Instrument and the Assignment of Leases and Rents shall remain in full force and effect, unchanged and in all respects, ratified and confirmed. - 3 - 11. That nothing herein contained shall affect the priority of the First Priority Lien Instrument, the Second Priority Lien Instrument or the Assignment of Leases and Rents over other liens, charges, encumbrances or conveyances nor shall it release or change the liability of any party who may now or hereafter be liable, primarily or secondarily, under or on account of the Note, Notes or Other Notes, as hereinafter defined. (Remainder of the page intentionally left blank) - 4 - IN WITNESS WHEREOF, this First Amendment has been executed by the undersigned as of the date and year first above written. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation By: Northwestern Investment Management Company, LLC, a Delaware limited liability company, its wholly-owned affiliate and authorized representative By: /S/ Michael P. Cusick ---------------------------------------- Michael P. Cusick Managing Director Attest: /S/ Donna L. Lemanczyk ------------------------------------ Donna L. Lemanczyk Assistant Secretary CALIFORNIA ACKNOWLEDGMENT ALL-PURPOSE STATE OF WISCONSIN ) )ss. COUNTY OF MILWAUKEE ) On November 5, 2008, before me, Janet M. Szukalski, a Notary Public, personally appeared Michael P. Cusick and Donna L. Lemanczyk, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature /S/ Janet M. Szukalski ---------------------------------------- Janet M. Szukalski (Place Notary Seal Above) Name (typed or printed) My Commission expires: April 22, 2012 - 5 - MISSION WEST PROPERTIES, L.P. II, a Delaware limited partnership By: Mission West Properties, Inc., a Maryland corporation, its general partner By: /S/ Raymond V. Marino ------------------------------------- Name: Raymond V. Marino ----------------------------------- Title: President & COO ---------------------------------- CALIFORNIA ACKNOWLEDGMENT ALL-PURPOSE STATE OF California ) )ss. COUNTY OF Santa Clara ) On November 7, 2008 , before me, Vanessa Almanza , a Notary Public, personally appeared Raymond V. Marino , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature /S/ Vanessa Almanza --------------------------- Vanessa Almanza (Place Notary Seal Above) Name (typed or printed) My Commission expires: March 29, 2011 This instrument was prepared by Brenda Stugelmeyer, Attorney, for The Northwestern Mutual Life Insurance Company, 720 East Wisconsin Avenue, Milwaukee, WI 53202. - 6 - First Priority Lien Instrument & Second Priority Lien Instrument & First Priority Absolute Assignment Exhibit "A" (Mission West II) PROPERTY ONE: All that certain real property situated in the City of San Jose, County of Santa Clara, State of California, described as follows: Parcel 2, as shown on the Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California on November 26, 1979, in Book 455 of Maps, Page(s) 1 and 2. Assessors Parcel No: 706-09-023 PROPERTY TWO: Parcel 1, as shown on that Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California on May 22, 1980, in Book 463 of Maps, Page(s) 43 and 44. Assessors Parcel No: 706-02-034 PROPERTY THREE: Parcel 7, as shown on that Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 5, 1984, in Book 536 of Maps, Page(s) 41, 42 and 43. Assessors Parcel No: 086-33-092 PROPERTY FOUR: Parcel 3 as shown on that Parcel Map filed for recorded in the Office of the Recorder of the County of Santa Clara, State of California on December 5, 1984, in Book 536 of Maps, Page(s) 41, 42 and 43. Assessors Parcel No: 086-41-017 & 086-41-018 - 7 - First Priority Lien Instrument & Second Priority Lien Instrument Exhibit "B" - 8 -