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EX-10.1 4 exh10_1.htm EXHIBIT 10.1 exh10.1_10q2q03 EXHIBIT 10.1
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING LOAN AGREEMENT

THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (this "Amendment") made this 27^th day of June, 2003, by and among ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("Parent"), ALEXANDRIA REAL ESTATE EQUITIES, L.P., a Delaware limited partnership ("Operating Partnership"), ARE-QRS CORP., a Maryland corporation ("QRS"), ARE ACQUISITIONS, LLC, a Delaware limited liability company ("ARE"), the other Borrowers whose names are set forth on the signature pages of this Amendment (collectively, with Parent, Operating Partnership, QRS and ARE, the "Borrowers", all on a joint and several basis), each lender whose name is set forth on the signature pages of this Amendment as "Banks" (collectively, the "Banks" and individually, a "Bank") and FLEET NATIONAL BANK, as Administrative Agent for the Banks (the "Administrative Agent").

W I T N E S S E T H:

WHEREAS, Borrowers, Administrative Agent and the Banks are parties to that certain Third Amended and Restated Revolving Loan Agreement dated as of July 11, 2002 (the "Loan Agreement"); and

WHEREAS, the original Line Commitment under the Loan Agreement was $400,000,000;

WHEREAS, on October 30, 2002 Borrowers, pursuant to §2.13 of the Loan Agreement, exercised their option to increase the Line Commitment by $25,000,000 (the "Initial Increase Amount") (which increased the maximum aggregate Line Commitment to $425,000,000) with Commerzbank AG, New York and Grand Cayman Branches acquiring $10,000,000 of the Initial Increase Amount for a total Line Commitment of $50,000,000, Keybank National Association acquiring $10,000,000 of the Initial Increase Amount for a total Line Commitment of $50,000,000 and Societe Generale acquiring $5,000,000 of the Initial Increase Amount for a total Line Commitment of $45,000,000 (the "Initial Increase");

WHEREAS, Borrowers are only permitted to increase the Line Commitment once pursuant to §2.13(c) (the "Increase Restriction") and the increase must be acquired by one or more existing Banks (the "Acquisition Restriction") pursuant to §2.13(b)(iv);

WHEREAS, Borrowers desire to further increase the Line Commitment by $15,000,000 (the "Additional Increase Amount") (which would result in the maximum aggregate Line Commitment being up to $440,000,000) with Bank One, NA ("Bank One") (which is not an existing Bank) acquiring the Additional Increase Amount (the "Additional Increase");

WHEREAS, Agent and the Banks have agreed to waive the Increase Restriction and the Acquisition Restriction and permit the Additional Increase;

WHEREAS, as a condition to the waiver of the Increase Restriction and the Acquisition Restriction and consent to the Additional Increase, Administrative Agent and the Banks have required that Borrowers execute this Amendment;

NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant and agree as follows:

Definitions. All the terms used herein which are not otherwise defined herein shall have the meanings set forth in the Loan Agreement.

Modification of the Loan Agreement. Borrowers, the Banks and Administrative Agent do hereby modify and amend the Loan Agreement as follows:

By deleting in its entirety the definition of the term "Line Commitment" appearing in §1.1 of the Loan Agreement, and inserting in lieu thereof the following:

"Line Commitment" means subject to Section 2.7, $440,000,000. The respective Pro Rata Shares of the Banks with respect to the Line Commitment are set forth in Schedule 1.1."

By deleting in its entirety Schedule 1.1 and inserting in lieu thereof Schedule 1.1 attached hereto and made a part hereof.

Consent to Additional Increase. The Banks hereby waive the Increase Restriction and the Acquisition Restriction with respect to and consent to the Additional Increase, such Additional Increase to be undertaken contemporaneously herewith in accordance with the requirement set forth in §2.13 (other than as set forth above).

No Further Waiver. Borrowers acknowledge that the Banks have made no agreement and are in no way obligated to grant any further waivers or consents other than as provided in Section 3 above.

References to Loan Agreement. All references in the Loan Documents to the Loan Agreement shall be deemed a reference to the Loan Agreement, as modified and amended herein.

Representations. Borrowers represent and warrant to Administrative Agent and the Banks as follows:

Each of the Borrowers has all requisite power and authority to execute and deliver this Amendment and to perform its obligations hereunder.
The execution, delivery and performance by each of Borrowers of this Amendment have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and will not:

Require any consent or approval not heretofore obtained of any partner, director, stockholder, security holder or creditor of Borrowers;
Violate or conflict with any provision of Borrowers' charter, articles of incorporation, bylaws or other organizational agreements, as applicable;
Result in or require the creation or imposition of any Lien or Right of Others upon or with respect to any Property now owned or leased or hereafter acquired by Borrowers;
Violate any Requirement of Law applicable to Borrowers; or
Result in a breach of or constitute a default under, or cause or permit the acceleration of any obligation owed under, any indenture or loan or credit agreement or any other Contractual Obligation to which Borrowers are a party or by which Borrowers or any of their Property is bound or affected.

Except as previously obtained or made, no authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Agency is or will be required to authorize or permit under applicable Laws the execution, delivery and performance by any of Borrowers of this Amendment.
This Amendment will, when executed and delivered by Borrowers, constitute the legal, valid and binding obligation of Borrowers, enforceable against Borrowers in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.

Conditions to Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of each of the following conditions precedent:

The Administrative Agent shall have received all of the following, each of which shall be originals unless otherwise specified, each properly executed by a Responsible Official of each party thereto, and each in form and substance satisfactory to the Administrative Agent and its legal counsel (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):

at least one (1) executed counterpart of this Amendment, together with arrangements satisfactory to the Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and Borrowers;
with respect to each of Borrowers, such documentation as the Administrative Agent may require to establish its authority to execute, deliver and perform this Amendment, the identity, authority and capacity of each Responsible Official thereof authorized to act on its behalf, including certified copies of articles of incorporation and amendments thereto, bylaws and amendments thereto (or certifications acceptable to Administrative Agent that there have been no changes to any of such items from those previously delivered to the Managing Agent pursuant to the Loan Agreement), certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, Certificates of Responsible Officials, and the like;
one (1) executed counterpart of a Line Note in the amount of $15,000,000 made by Borrower payable to Bank One; and
payment of such fees as Administrative Agent and Bank One may require with respect to the Additional Increase Amount.

The Administrative Agent shall have reviewed such other documents, instruments, certificates, opinions, assurances, consents and approvals as the Administrative Agent or the Administrative Agent's special counsel may reasonably have requested.

No Default. By execution hereof, each of the Borrowers certifies that such Persons are and will be in compliance with all covenants under the Loan Documents after the execution and delivery of this Amendment, and that no Default or Event of Default has occurred and is continuing.

Waiver of Claims. Each of the Borrowers acknowledges, represents and agrees that none of such Persons has any defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever with respect to the Loan Documents, the administration or funding of the Loan or with respect to any acts or omissions of Administrative Agent or any Bank, or any past or present officers, Administrative Agents or employees of Administrative Agent or any Bank, and each of such Persons does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.

Ratification. Except as hereinabove set forth, all terms, covenants and provisions of the Loan Agreement remain unaltered and in full force and effect, and the parties hereto do hereby expressly ratify and confirm the Loan Documents and the Loan Agreement as modified and amended herein. Nothing in this Amendment shall be deemed or construed to constitute, and there has not otherwise occurred, a novation, cancellation, satisfaction, release, waiver, extinguishment or substitution of the indebtedness evidenced by the Notes or the other obligations of Borrowers under the Loan Documents.

Amendment as Loan Document. This Amendment shall constitute a Loan Document.

Counterparts. This Amendment may be executed in any number of counterparts which shall together constitute but one and the same agreement.

Miscellaneous. This Amendment shall be construed and enforced in accordance with the laws of the State of California. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors, successors-in-title and assigns as provided in the Loan Agreement.

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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and affixed their seals as of the day and year first above written.

BORROWERS:

ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation