Exhibit 10.5
EXECUTION VERSION
AMENDMENT NO. 2 TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
ThisAMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 1, 2011 (this “Amendment”), is made by and amongCOGDELL SPENCER LP, a Delaware limited partnership (the “Borrower”),COGDELL SPENCER INC., a Maryland corporation (“CSI”),EACH LENDER PARTY HERETO, EACH OF THE UNDERSIGNED GUARANTORSandBANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”), L/C Issuer and Swing Line Lender.
RECITALS:
WHEREAS,the Borrower, CSI, the Administrative Agent and the lenders party thereto (collectively, the “Lenders” and individually, each a “Lender”) have entered into that certain Amended and Restated Credit Agreement dated as of March 1, 2011 (as amended by that certain Amendment No. 1 to Amended and Restated Credit Agreement dated as of June 16, 2011, as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”), pursuant to which the Lenders have made available to the Borrower a revolving credit facility with a letter of credit subfacility and a swing line subfacility; capitalized terms used in this Amendment not otherwise defined herein shall have the definitions set forth in the Credit Agreement; and
WHEREAS,the Guarantors and the Administrative Agent have entered into a Guaranty Agreement dated as of March 1, 2011 (the “Guaranty Agreement”); and
WHEREAS,the Borrower has requested that the Administrative Agent and the Lenders amend certain terms of the Credit Agreement, and the Administrative Agent and the Lenders party hereto are willing to effect such amendments upon the terms and conditions contained in this Amendment; and
NOW, THEREFORE,in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendments to Credit Agreement. Subject to the conditions set forth inSection 2, the Credit Agreement is hereby amended, effective as of the date hereof, as follows:
(a) The following definition for “Term Loan Facility” is added toSection 1.02 in the proper alphabetical order:
“Term Loan Facility” means the senior secured term loan facility among the Borrower, CSI and certain Subsidiaries of CSI as guarantors, Bank of America, N.A. as agent, and the lenders party thereto from time to time, as such senior secured term loan facility may be amended, restated, modified, increased or supplemented from time to time.
(b)Section 7.12(b) is amended and restated in its entirety to read as follows:
(b)Secured Recourse Indebtedness. Maintain at all times a ratio of Secured Recourse Indebtedness of CSI and its Subsidiaries (excluding Indebtedness incurred under (i) the Loan Documents and (ii) the Term Loan Facility) to Consolidated Total Asset Value of 0.15 to 1.00 or less. Unless otherwise requested by the Agent, this ratio will be calculated for reporting purposes at the end of each reporting period for which this Agreement requires delivery of financial statements.
(c)Section 8.09 is amended and restated in its entirety to read as follows:
8.09. Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any Guarantor (except for Contractual Obligations relating to Indebtedness permitted underSection 8.03), (ii) of any Subsidiary (other than an Excluded Subsidiary) or CSI to Guarantee the Indebtedness of Borrower (except for Contractual Obligations relating to Indebtedness permitted underSection 8.03), (iii) of the Borrower to prepay or refinance the Obligations hereunder or (iv) of CSI or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person (except for Contractual Obligations relating to Liens permitted underSection 8.01 or Indebtedness permitted underSection 8.03); or (b) requires the grant of a Lien to secure an obligation of such Person (other than an Excluded Subsidiary) if a Lien is granted to secure another obligation of such Person.
2. Effectiveness; Conditions Precedent. Upon receipt by the Administrative Agent of counterparts of this Amendment, duly executed by the Borrower, the Guarantors, the Administrative Agent and the Required Lenders, this Amendment shall be effective as of the date hereof.
3. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders as follows:
(a) The representations and warranties made by it inArticle VI of the Credit Agreement are true and correct on and as of the date hereof after giving effect to this Amendment, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties are true and correct as of such earlier date;
(b) This Amendment has been duly authorized, executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of such party, except as may be limited by general principles of equity or by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally; and
(c) After giving effect hereto, no Default or Event of Default exists.
4. Entire Agreement. This Amendment, together with the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance withSection 11.01 of the Credit Agreement.
5. Full Force and Effect of Agreement. Except as hereby specifically amended, modified or supplemented, the Borrower hereby acknowledges and agrees that the Credit Agreement and all of the other Loan Documents are hereby confirmed and ratified in all respects and shall remain in full force and effect according to their respective terms.
6. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or electronic format (including .pdf) shall be effective as delivery of a manually executed original counterpart of this Amendment.
7. Governing Law. This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York.
8. Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.
9. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective successors and assignees to the extent such assignees are permitted assignees as provided inSection 11.06 of the Credit Agreement.
10. Expenses. Without limiting the provisions ofSection 11.04 of the Credit Agreement, the Borrower agrees to pay all reasonable out of pocket costs and expenses (including without limitation reasonable legal fees and expenses) incurred before or after the date hereof by the Administrative Agent and its Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Amendment.
11. Consent of the Guarantors. Each Guarantor hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Loan Documents to which such Person is a party (including without limitation the continuation of such Person’s payment and performance obligations and the effectiveness and priority of any Liens granted thereunder, in each case upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of such Loan Documents against such Person in accordance with its terms.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Amended and Restated Credit Agreement to be made, executed and delivered by their duly authorized officers as of the day and year first above written.
COGDELL SPENCER LP, a Delaware limited partnership | ||||||||
By: | CS Business Trust I, a Maryland Statutory Trust, its General Partner | |||||||
By: | /s/ Charles M. Handy | |||||||
Name: | Charles M. Handy | |||||||
Title: | Chief Financial Officer and Trustee | |||||||
COGDELL SPENCER INC., as Guarantor | ||||||||
By: | /s/ Charles M. Handy | |||||||
Name: Charles M. Handy | ||||||||
Title: Chief Financial Officer |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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GUARANTORS: | ||||
COGDELL SPENCER INC., a Maryland corporation | ||||
ERDMAN COMPANY, a Wisconsin corporation | ||||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Chief Financial Officer | ||||
CS BUSINESS TRUST I, a Maryland Statutory Trust | ||||
CS BUSINESS TRUST II, a Maryland Statutory Trust | ||||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Chief Financial Officer and Trustee | ||||
COGDELL SPENCER ADVISORS MANAGEMENT, LLC, a Delaware limited liability company | ||||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Manager | ||||
AUGUSTA MEDICAL PARTNERS, LLC, a Georgia limited liability company | ||||
CAROLINA FOREST PLAZA, LLC, a South Carolina limited liability company | ||||
FRANCISCAN DEVELOPMENT COMPANY, LLC, a North Carolina limited liability company | ||||
200 ANDREWS, LLC, a South Carolina limited liability company | ||||
By: | Cogdell Spencer Advisors Management, LLC, a Delaware limited liability company, its Manager | |||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Manager |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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CABARRUS POB, LP, a North Carolina limited partnership | ||||
COGDELL INVESTORS (BIRKDALE), LP, a North Carolina limited partnership | ||||
COGDELL INVESTORS (BIRKDALE II), LP, a North Carolina limited partnership | ||||
COGDELL INVESTORS (MALLARD), LP, a North Carolina limited partnership | ||||
COPPERFIELD MOB, LP, a North Carolina limited partnership | ||||
EAST ROCK MOUNT KIDNEY CENTER ASSOCIATES, LP, a North Carolina limited partnership | ||||
GASTON MOB, LP, a North Carolina limited partnership | ||||
MARY BLACK WESTSIDE MEDICAL PARK I LIMITED PARTNERSHIP, a South Carolina limited partnership | ||||
MEDICAL INVESTORS III, LP, a South Carolina limited partnership | ||||
WEST MEDICAL OFFICE I, LP, a South Carolina limited partnership | ||||
By: | Cogdell Spencer Advisors Management, LLC, a Delaware limited liability company, its General Partner | |||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Manager | ||||
VERDUGO MOB, LP, a California limited partnership | ||||
By: | Verdugo Management, LLC, a California limited liability company, its General Partner | |||
By: | /s/ Charles M. Handy | |||
Name: Charles M. Handy | ||||
Title: Manager |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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BANK OF AMERICA, N.A.,as Administrative Agent | ||||||
By: | /s/ Jack Redhead | |||||
Name: | Jack Redhead | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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LENDERS: | ||||||
BANK OF AMERICA, N.A.,as a Lender, L/C Issuer and Swing Line Lender | ||||||
By: | /s/ Jack Redhead | |||||
Name: | Jack Redhead | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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KEYBANK NATIONAL ASSOCIATION, as a Lender | ||||||
By: | /s/ Kevin P. Murray | |||||
Name: | Kevin P. Murray | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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CITIBANK, N.A., as a Lender | ||||||
By: | /s/ Michael Chlopak | |||||
Name: | Michael Chlopak | |||||
Title: | Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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BRANCH BANKING AND TRUST COMPANY, as a Lender | ||||||
By: | /s/ Wright Uzzell | |||||
Name: | Wright Uzzell | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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WELLS FARGO BANK, N.A., as a Lender | ||||||
By: | /s/ Mary Lucy Lester | |||||
Name: | Mary Lucy Lester | |||||
Title: | Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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REGIONS BANK | ||||||
By: | /s/ James A. Barnes | |||||
Name: | James A. Barnes | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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RAYMOND JAMES BANK, FSB | ||||||
By: | /s/ Garrett McKinnon | |||||
Name: | Garrett McKinnon | |||||
Title: | Senior Vice President |
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
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