Exhibit 10.26



 







    EXHIBIT 10.26



 




    AMENDMENT
    NO. 2 TO CREDIT AGREEMENT 



 



    THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this
    “Amendment Agreement”) is made and entered into
    as of December 31, 2007 by and among COGDELL SPENCER
    LP, a Delaware limited partnership
    (“Borrower”), COGDELL SPENCER INC., a
    Maryland corporation (“CSI”), EACH
    SUBSIDIARY OF THE BORROWER PARTY TO THE GUARANTY (together
    with CSI, collectively, the “Guarantors” and
    individually, each a “Guarantor”), EACH
    LENDER SIGNATORY HERETO (collectively, the
    “Lenders” and individually, each a
    “Lender”), and BANK OF AMERICA, N.A., as
    the administrative agent for the Lenders (in such capacity, the
    “Administrative Agent”), Swing Line Lender and
    L/C Issuer.



 




    WITNESSETH:



 



    WHEREAS, the Administrative Agent, the Lenders party
    thereto, the Borrower and CSI have entered into that certain
    Credit Agreement dated as of November 1, 2005 (as amended
    by that certain Amendment No. 1 to Credit Agreement and
    Waiver dated as of August 23, 2006, and as hereby and from
    time to time amended, restated, amended and restated, extended,
    supplemented, modified or replaced, the “Credit
    Agreement”; capitalized terms used herein but not
    otherwise defined herein shall have the meanings assigned to
    such terms in the Credit Agreement), pursuant to which the
    Lenders have agreed to make and have made available to the
    Borrower a revolving credit facility in a maximum aggregate
    principal amount of $130,000,000 (subject to increase pursuant
    to Section 2.14 of the Credit Agreement); and



 



    WHEREAS, each of the Guarantors has entered into the
    Facility Guaranty pursuant to which it has guaranteed the
    payment and performance of the obligations of the Borrower under
    the Credit Agreement and the other Loan Documents; and



 



    WHEREAS, the Borrower has requested that a certain
    financial covenant in Section 7.12 of the Credit
    Agreement be amended, in the manner set forth herein, and the
    Administrative Agent and the Lenders, subject to the terms and
    conditions contained herein, are willing to effect such
    amendment on the terms and conditions contained in this
    Amendment Agreement;



 



    NOW, THEREFORE, in consideration of the premises and
    further valuable consideration, the receipt and sufficiency of
    which are hereby acknowledged, the parties hereby agree as
    follows:



 



    1.  Amendment to Credit
    Agreement.  Subject to the terms and
    conditions set forth herein, Section 7.12(c) of the
    Credit Agreement is hereby amended to restate such subsection in
    its entirety to read as follows:



 



    “(c) Consolidated Secured Indebtedness to
    Consolidated Total Asset Value
    Ratio.  Maintain at all times a ratio of
    Consolidated Secured Indebtedness to Consolidated Total Asset
    Value not more than (i) 0.50:1.0 from the Closing Date
    through and including June 30, 2007, (ii) 0.40:1.0
    from July 1, 2007 through and including September 30,
    2007, (iii) 0.50:1.0 from October 1, 2007 through and
    including December 31, 2007, and (iv) 0.40:1.0 from
    January 1, 2008 and continuing thereafter. This ratio will
    be calculated at the end of each reporting period for which this
    Agreement requires delivery of financial statements, using the
    results of the four consecutive fiscal quarter period of CSI
    ending with that reporting period.”



 



    2.  Consent of the
    Guarantors.  Each Guarantor hereby consents,
    acknowledges and agrees to the amendment set forth herein, and
    hereby confirms, reaffirms and ratifies in all respects the
    Facility Guaranty to which such Guarantor is a party (including
    without limitation the continuation of such Guarantor’s
    payment and performance obligations thereunder upon and after
    the effectiveness of this Amendment Agreement and the amendment
    contemplated hereby) and the enforceability of such Facility
    Guaranty against such Guarantor in accordance with its terms.













 






    3.  Full Force and Effect of Credit
    Agreement.  Except as hereby specifically
    amended, modified, supplemented or waived, each party hereto
    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.



 



    4.  Representations and
    Warranties.  In order to induce the
    Administrative Agent and the Lenders to enter into this
    Amendment Agreement, the Borrower hereby represents and warrants
    to the Administrative Agent and the Lenders as follows:



 



    (a) The representations and warranties of the Borrower and
    each Loan Party contained in contained in Article VI
    of the Credit Agreement or any other Loan Document or in any
    document furnished at any time under or in connection with the
    Credit Agreement or any other Loan Documents are true and
    correct in all material respects on and as of the date hereof,
    except to the extent that such representations and warranties
    specifically refer to an earlier date, in which case they shall
    be true and correct as of such earlier date, and except that the
    representations and warranties contained in subsections
    (a) and (b) of Section 6.05 of the Credit
    Agreement shall be deemed to refer to the most recent statements
    furnished pursuant to Section 7.01 of the Credit
    Agreement;



 



    (b) The Persons appearing as Guarantors on the signature
    pages to this Amendment Agreement constitute all Persons who are
    required to be Guarantors pursuant to the terms of the Credit
    Agreement and the other Loan Documents, including without
    limitation all Persons who became Material Subsidiaries or were
    otherwise required to become Guarantors after the Closing Date,
    and each of such Persons has become and remains a party to the
    applicable Facility Guaranty as a Guarantor;



 



    (c) This Amendment Agreement has been duly authorized,
    executed and delivered by the Borrower and Guarantors party
    hereto and constitutes a legal, valid and binding obligation of
    such parties, 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



 



    (d) No Default or Event of Default exists either before or
    after giving effect to this Amendment Agreement.



 



    5.  Conditions to
    Effectiveness.  The effectiveness of this
    Amendment Agreement and the amendment to the Credit Agreement
    provided herein are subject to the satisfaction of the following
    conditions precedent:



 



    (a) receipt by the Administrative Agent of counterparts of
    this Amendment Agreement, duly executed by the Borrower, each
    Guarantor, the Administrative Agent and the Lenders, sufficient
    in number for distribution to the parties hereto;



 



    (b) payment of (i) all reasonable out of pocket fees
    and expenses to date of counsel to the Administrative Agent
    incurred in connection with the Credit Agreement and the other
    Loan Documents and the execution and delivery of this Amendment
    Agreement to the extent invoiced prior to the date hereof;
    (ii) an upfront fee to each Lender, for the account of each
    such Lender, paid to the Administrative Agent, equal to $50,000
    multiplied by each such Lender’s Applicable
    Percentage as of the date hereof; and (iii) any other fees
    separately agreed to be paid in connection herewith; and



 



    (c) such other documents, instruments, certificates,
    undertakings and further assurances and other matters as
    reasonably requested by the Administrative Agent.



 



    Upon satisfaction of the conditions set forth in this
    Section 5, this Amendment Agreement shall be
    effective as of the date hereof.



 



    6.  Counterparts.  This
    Amendment Agreement 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
    Agreement by telecopy or electronic format (including .pdf)
    shall be effective as delivery of a manually executed original
    counterpart of this Amendment Agreement.




    

    2








 






    7.  Entire Agreement.  This
    Amendment Agreement, together with all 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 relative
    to such subject matter. No promise, conditions, representation
    or warranty, express or implied, not set forth in the Relevant
    Documents shall bind any party hereto, and none of them 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 in relation to the
    subject matter hereof or thereof. None of the terms or
    conditions of this Amendment Agreement may be changed, modified,
    waived or canceled orally or otherwise, except in writing in
    accordance with Section 11.01 of the Credit
    Agreement.



 



    8.  Governing Law.  This
    Amendment Agreement shall in all respects be governed by, and
    construed in accordance with, the laws of the State of New York,
    and shall be further subject to the provisions of
    Sections 11.14 and 11.15 of the Credit
    Agreement.



 



    9.  Enforceability.  Should
    any one or more of the provisions of this Amendment Agreement 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.



 



    10.  Successors and
    Assigns.  This Amendment Agreement shall be
    binding upon and inure to the benefit of the Borrower,
    Administrative Agent and each of the Guarantors and Lenders, and
    their respective successors, legal representatives, and
    assignees to the extent such assignees are permitted assignees
    as provided in Section 11.06 of the Credit Agreement.



 



    11.  Expenses.  Without
    limiting the provisions of Section 11.04 of the
    Credit Agreement, the Borrower agree 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 Agreement.



 




    [Signature
    pages follow.]




    

    3








 






    IN WITNESS WHEREOF, the parties hereto have caused this
    Amendment Agreement to be duly executed as of the date first
    above written.



 



    BORROWER:



 


			
	 	     
	
    COGDELL SPENCER LP, as Borrower




 



    By: CS Business Trust I, its General Partner



 


			
	 	    By: 
	
    /s/  Frank
    C. Spencer










    Name:     Frank C. Spencer



			
	 	    Title: 
	
    President




 



    GUARANTORS:



 



    COGDELL SPENCER INC.



 


			
	 	    By: 
	
    /s/  Frank
    C. Spencer










    Name:     Frank C. Spencer



			
	 	    Title: 
	
    Chief Executive Officer and President




 



    CS BUSINESS TRUST I



 


			
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Secretary and Treasurer




 



    CS BUSINESS TRUST II



 


			
	 	    By: 
	
    /s/  
    Charles M. Handy










    Name:     Charles M. Handy



			
	 	    Title: 
	
    Secretary and Treasurer



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    COGDELL SPENCER ADVISORS, LLC




 


			
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    AUGUSTA MEDICAL PARTNERS, LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    EAST JEFFERSON MEDICAL SPECIALTY BUILDING LIMITED
    PARTNERSHIP



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its general partner

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    CABARRUS POB, LLC




 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    COGDELL INVESTORS (BIRKDALE II), LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    COGDELL INVESTORS (MALLARD), LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    COPPERFIELD MOB, LLC




 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    EAST ROCKY MOUNT KIDNEY CENTER ASSOCIATES, LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    FRANCISCAN DEVELOPMENT COMPANY, LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    MEDICAL INVESTORS III, LLC




 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    200 ANDREWS, LLC



 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    VERDUGO MOB, LP



 


			
	 	    By: 
	
    Verdugo Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    WEST MEDICAL OFFICE I, LLC




 


			
	 	    By: 
	
    Cogdell Spencer Advisors Management, LLC, its managing member

	 
	 	    By: 
	
    /s/  Charles
    M. Handy









    Name:     Charles M. Handy



			
	 	    Title: 
	
    Authorized Signatory




 



    BANK OF AMERICA, N.A., as Administrative Agent



 


			
	 	    By: 
	
    /s/  Scott
    McClintock









    Name:     Scott McClintock



			
	 	    Title: 
	
    Senior Vice President




 



    BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing
    Line Lender



 


			
	 	    By: 
	
    /s/  Scott
    McClintock









    Name:     Scott McClintock



			
	 	    Title: 
	
    Senior Vice President




 



    CITICORP NORTH AMERICA, INC., as a Lender



 


			
	 	    By: 
	
    /s/  Michael
    Chlopak









    Name:     Michael Chlopak



			
	 	    Title: 
	
    Managing Director



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page
    













 










 


			
	 	
	
    BRANCH BANKING AND TRUST COMPANY, as a Lender




 


			
	 	    By: 
	
    /s/  H.
    Wright Uzzell, Jr.









    Name:     H. Wright Uzzell, Jr.



			
	 	    Title: 
	
    Senior Vice President



 


 




    Cogdell
    Spencer LP

    Amendment No. 2 to Credit Agreement

    Signature Page