Exhibit 10.5





Exhibit 10.5




EXECUTION VERSION




AMENDMENT NO. 2 TO

AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 1, 2011
(this “Amendment”), is made by and among COGDELL SPENCER LP, a Delaware limited partnership
(the “Borrower”), COGDELL SPENCER INC., a Maryland corporation (“CSI”), EACH LENDER
PARTY HERETO, EACH OF THE UNDERSIGNED GUARANTORS and BANK 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 in Section
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 to Section
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 under Section 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 under Section 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 under Section 8.01 or
Indebtedness permitted under Section 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 in Article 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 with
Section 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 in Section
11.06 of the Credit Agreement.



10. Expenses. Without limiting the provisions of Section 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

Signature Page



 


 









 







	 	 	 	 	 
	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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