FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

EX-10.1 2 a07-29294_2ex10d1.htm EX-10.1

Exhibit 10.1

FIRST AMENDMENT TO FIFTH AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT

This First Amendment to the Fifth Amended and Restated Revolving Credit Agreement (the “Amendment”) is made as of November 13, 2007, by and among Duke Realty Limited Partnership (“Borrower”), Duke Realty Corporation (“Guarantor”), JPMorgan Chase Bank, N.A., individually and as “Administrative Agent”, and the Lenders shown on the signature pages hereof.

R E C I T A L S

A.            Borrower, Guarantor, Administrative Agent and the other Lenders have entered into an Fifth Amended and Restated Revolving Credit Agreement dated as of January 25, 2006 (as amended, the “Credit Agreement”).  All capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Credit Agreement.

B.            Pursuant to the terms of the Credit Agreement, the Lenders initially agreed to provide Borrower with a revolving credit facility in an aggregate principal amount of up to $1,000,000,000.  The Borrower, Guarantor, the Administrative Agent and the Lenders now desire to amend the Credit Agreement in order to, among other things (i) increase the Aggregate Commitment to $1,300,000,000 in accordance with Section 2.1 of the Credit Agreement; and (ii) make certain other modifications to the terms of the Credit Agreement.

NOW, THEREFORE, in consideration of the foregoing Recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENTS

1.             The foregoing Recitals to this Amendment hereby are incorporated into and made part of this Amendment.

2.             From and after the Effective Date (as hereinafter defined) the Commitments of each Lender shall each be the amount shown next to their respective signatures on the signature pages of this Amendment.

3.             From and after the Effective Date, the Aggregate Commitment shall equal One Billion Three Hundred Million Dollars ($1,300,000,000).

4.             The parties hereto acknowledge and agree that Wachovia has been designated as Joint Lead Arranger of the Facility together with J.P. Morgan Securities, Inc.

5.             Section 2.4 of the Credit Agreement is hereby amended and restated to read as follows:

Applicable Margins.  The ABR Applicable Margin and the LIBOR Applicable Margin to be used in calculating the interest rate applicable to different Types of Advances shall vary from time to time in accordance with the long-term unsecured debt ratings of the Borrower as set forth



in the table attached as Exhibit A.  In the event that a rating agency shall discontinue its ratings of the REIT industry or the Borrower, a mutually agreeable substitute rating agency may be selected by the Required Lenders and the Borrower.

If a rating agency downgrade or discontinuance results in an increase in the ABR Applicable Margin, the LIBOR Applicable Margin or Facility Fee Rate and if such downgrade or discontinuance is reversed and the affected Applicable Margin is restored within ninety (90) days thereafter, at the Borrower’s request, the Borrower shall receive a credit against interest next due the Lenders equal to interest accrued from time to time during such period of downgrade or discontinuance and actually paid by the Borrower on the Advances at the differential between such Applicable Margins, and the differential of the Facility Fees paid during such period of downgrade.

If a rating agency upgrade results in a decrease in the ABR Applicable Margin, LIBOR Applicable Margin or Facility Fee Rate and if such upgrade is reversed and the affected Applicable Margin is restored within ninety (90) days thereafter, Borrower shall be required to pay an amount to the Lenders equal to the interest differential on the Advances and the differential on the Facility Fees during such period of upgrade.

6.             Section 7.20 (i) of the Credit Agreement is hereby amended and restated to read as follows:

“the ratio of Adjusted EBITDA to Fixed Charges to be less than 1.50 to 1.0 for the preceding 12 full calendar months throughout the remaining term of the Facility;”

7.             Section 7.20 (iii) of the Credit Agreement is hereby amended and restated to read as follows:

“the ratio obtained by dividing: (a) the Property Operating Income from all Unencumbered Assets by (b) interest on Consolidated Unsecured Indebtedness to be less than 1.75 to 1.0 for the quarter then ended.”

8.             Section 7.25 of the Credit Agreement is hereby amended and restated to read as follows:

Notice of Rating Change.  The Borrower shall notify the Administrative Agent promptly if there is any change in the long term unsecured debt rating of the Borrower from Moody’s or S&P.

9.             Exhibit A attached to the Credit Agreement is hereby replaced with Exhibit A attached to this Amendment.

10.           Borrower and Guarantor hereby represent and warrant that:

(a)           no Default or Unmatured Default exists under the Loan Documents;

(b)           the Loan Documents are in full force and effect and Borrower and Guarantor have no defenses or offsets to, or claims or counterclaims relating to, their obligations under the Loan Documents;

 

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(c)           no changes have been made to the organizational documents of the Borrower or Guarantor since the date of the Credit Agreement unless such changes have been previously provided to Administrative Agent;

(d)           there has been no material adverse change in the financial condition of  Borrower or the Guarantor since June 30, 2007; and

(e)           Borrower and Guarantor have full power and authority to execute this Amendment.

11.           The “Effective Date” shall be the date on which this Amendment shall have been executed by Borrower, General Partner, Administrative Agent, and the Required Lenders (including each Lender whose commitment has been increased), and all fees due to approving lenders, and the fees and expenses of the Arrangers have been paid.

12.           As expressly modified as provided herein, the Credit Agreement shall continue in full force and effect, and Guarantor reaffirms all of its obligations under the Guaranty.

13.           This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.  This Amendment shall be construed in accordance with the internal laws (and not the law of conflicts) of the State of Illinois, but giving effect to federal laws applicable to national banks.

 

[Remainder of Page Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above.

 

DUKE REALTY LIMITED PARTNERSHIP

 

 

 

By:

DUKE REALTY CORPORATION, its
General Partner

 

 

 

 

 

By:

 /s/ Matthew A. Cohoat

 

 

Print Name:

 

 

 

 

 

Matthew A. Cohoat

 

 

Title:

 

 

 

 

 

Executive Vice President and

 

 

Chief Financial Officer

 

 

 

 

c/o Duke Realty Corporation

 

600 East 96th Street, Suite 100

 

Indianapolis, Indiana 46240

 

 

 

Attention:

Matthew A. Cohoat

 

 

 

Telephone:

(317) 808-6065

 

 

 

Facsimile:

(317) 808-6794

 

 

 

 

 

DUKE REALTY CORPORATION

 

 

 

 

 

 

By:

 /s/ Matthew A. Cohoat

 

Print Name:

Matthew A. Cohoat

 

Title:

Executive Vice President and

 

 

Chief Financial Officer

 

 

 

 

 

 

600 East 96th Street, Suite 100

 

Indianapolis, Indiana 46240

 

 

 

Attention:

Matthew A. Cohoat

 

 

 

Telephone:

(317) 808-6065

 

 

 

Facsimile:

(317) 808-6794

 

 

 

 

 

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Commitments:

JPMORGAN CHASE BANK, N.A., Individually
and as Administrative Agent

 

 

$112,000,000

 

 

 

By:

/s/ Kimberly L. Turner

 

Print Name:

Kimberly L. Turner

 

Title:

Executive Director

 

 

 

 

 

 

277 Park Avenue

 

3rd Floor

 

New York, NY  10172

 

 

 

Attention:

Kimberly Turner

 

 

 

Telephone:

(212) 622-8177

 

 

 

Facsimile:

(646) 534-0574

 

 

 

 

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$112,000,000

WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Syndication Agent

 

 

 

 

 

 

By:

/s/ Rex E. Rudy

 

Print Name:

Rex E. Rudy

 

Title:

Managing Director

 

 

 

 

 

 

171 17th Street, NW, 100 Building

 

Atlanta, Georgia 30363

 

 

 

Attention:

Cathy A. Casey

 

 

 

Telephone:

(404) 214-6335

 

 

 

Facsimile:

(404) 214-5493

 

 

 

S-3



$98,000,000

BANK OF AMERICA, N.A., Individually and as
Syndication Agent

 

 

 

 

 

 

By:

 /s/ Mark Mokelke

 

Print Name:

Mark Mokelke

 

Title:

Vice President

 

 

 

 

 

 

Bank of America, N.A.

 

231 S. LaSalle Street, 10th Floor

 

Chicago, IL  60604

 

 

 

Attention:

Mark Mokelke

 

 

 

Telephone:

(312) 828-1739

 

 

 

Facsimile:

(312) 828-4970

 

 

 

 

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$73,000,000

THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, Individually and as Syndication Agent

 

 

 

 

 

 

By:

 /s/ R.H. Boese

 

Print Name:

R.H. Boese

 

Title:

Managing Director

 

 

 

 

 

 

One Liberty Plaza

 

New York, NY  10006

 

 

 

 

 

Attention:

Rob Boese

 

 

 

Telephone:

212 ###-###-####

 

 

 

Facsimile:

212 ###-###-####

 

 

 

 

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$98,000,000

WELLS FARGO BANK, NATIONAL
ASSOCIATION, Individually and as Syndication
Agent

 

 

 

 

 

 

By:

/s/ Winita Lau

 

Print Name:

Winita Lau

 

Title:

Assistant Vice President

 

 

 

 

 

 

123 North Wacker Drive

 

Suite 1900

 

Chicago, Illinois 60606

 

 

 

Attention:

Winita Lau

 

 

 

Telephone:

(312) 269-4848

 

 

 

Facsimile:

(312) 782-0969

 

 

 

 

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$60,000,000

DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as Managing Agent

 

 

 

 

 

 

By:

/s/ Brenda Casey

 

Print Name:

Brenda Casey

 

Title:

Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

Print Name:

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

200 Crescent Court

 

Suite 550

 

Dallas, TX  75201

 

 

 

Attention:

 

 

Telephone:

(214) 740-7903

 

 

 

Facsimile:

(214) 740-7910

 

 

 

 

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$60,000,000

FIFTH THIRD BANK, Individually and as
Managing Agent

 

 

 

 

 

 

By:

/s/ David O’Neal

 

Print Name:

David O’Neal

 

Title:

Vice President

 

 

 

 

 

 

251 North Illinois Street

 

Suite 1000

 

Indianapolis, IN  46204

 

 

 

Attention:

David O’Neal

 

 

 

Telephone:

317 ###-###-####

 

 

 

Facsimile:

317 ###-###-####

 

 

                                                                                                                                                                                                                                                                                                

 

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$60,000,000

MORGAN STANLEY BANK, Individually and as
Managing Agent

 

 

 

 

 

 

By:

/s/ Daniel Twenge

 

Print Name:

Daniel Twenge

 

Title:

Vice President

 

 

 

 

 

 

1633 Broadway

 

25th Floor

 

New York, NY  10019

 

 

 

Attention:

Erma Dell’Aquila

 

 

 

Telephone:

(212) 537-1532

 

 

 

Facsimile:

(212) 537-1867

 

 

 

 

S-9



$60,000,000

REGIONS BANK, Individually and as Managing
Agent

 

 

 

 

 

 

By:

/s/ Kerri Raines

 

Print Name:

Kerri Raines

 

Title:

Vice President

 

 

 

 

 

 

Regions Bank

 

1900 5th Avenue, North

 

15th Floor

 

Birmingham, AL 35288

 

 

 

Attention:

Kerri Raines

 

 

 

Telephone:

(205) 801-0621

 

 

 

Facsimile:

(205) 264-5456

 

 

 

 

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$60,000,000

SUNTRUST BANK,

Individually and as Managing Agent

 

 

 

 

By:

/s/ Gregory T. Horstman

 

Print Name:

Gregory T. Horstman

 

Title:

Senior Vice President

 

 

 

 

8330 Boone Boulevard

 

8th Floor

 

Vienna, VA 22182

 

 

 

 

Attention:

Gregory T. Horstman

 

Telephone:

(703) 442-1549

 

Facsimile:

(703) 442-1570

 

 

 

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$60,000,000

U.S. BANK NATIONAL ASSOCIATION,

Individually and as Managing Agent

 

 

 

 

By:

/s/ Renee M. Lewis

 

Print Name:

Renee M. Lewis

 

Title:

Vice President

 

 

 

 

US Bank - MK-IL-RY2C

 

209 South LaSalle, Suite 210

 

Chicago, IL 60604

 

 

 

 

Attention:

Renee M. Lewis

 

Telephone:

(312) 325-8877

 

Facsimile:

(312) 325-8852

 

 

 

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$60,000,000

UBS LOAN FINANCE LLC,

Individually and as Managing Agent

 

 

 

 

By:

/s/ Irja R. Otsa

 

Print Name:

Irja R. Otsa

 

Title:

Associate Director

 

 

 

 

By:

/s/ Richard L. Tavrow

 

Print Name:

Richard L. Tavrow

 

Title:

Director

 

 

 

 

677 Washington Boulevard

 

Stamford, CT 06901

 

 

 

 

Attention:

Brian Gross

 

Telephone:

(203) 719-3571

 

Facsimile:

(203) 719-3888

 

 

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$51,000,000

NATIONAL CITY BANK,

Individually and as Co-Agent

 

 

 

 

By:

/s/ Sarah E. Beeson

 

Print Name:

Sarah E. Beeson

 

Title:

Assistant Vice President

 

 

 

 

101 West Washington Street

 

Suite 935E

 

Indianapolis, IN 46255

 

 

 

 

Attention:

Sarah E. Beeson

 

Telephone:

(317) 267-7373

 

Facsimile:

(317) 267-3742

 

 

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$51,000,000

THE ROYAL BANK OF SCOTLAND PLC,

Individually and as Co-Agent

 

 

 

 

By:

/s/ Timothy J. McNaught

 

Print Name:

Timothy J. McNaught

 

Title:

Senior Vice President

 

 

 

 

101 Park Avenue

 

12th Floor

 

New York, NY 10178

 

 

 

 

Attention:

Timothy J. McNaught

 

Telephone:

(212) 401-3624

 

Facsimile:

(212) 401-3456

 

 

 

S-15



 

$48,000,000

PNC BANK, NATIONAL ASSOCIATION,

Individually and as Managing Agent

 

 

 

 

By:

/s/ Richard B. Trzybinski

 

Print Name:

Richard B. Trzybinski

 

Title:

Vice President

 

 

 

 

201 East Fifth Street

 

Cincinnati, OH 45202

 

 

 

 

Attention:

Richard B. Trzybinski

 

Telephone:

(513) 651-8939

 

Facsimile:

(513) 651-8931

 

 

S-16



 

$41,000,000

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD, NEW YORK BRANCH, Individually and as Co-Agent

 

 

 

 

By:

/s/ James T. Taylor

 

Print Name:

James T. Taylor

 

Title:

Vice President

 

 

 

 

1221 Avenue of the Americas

 

New York, NY 10020

 

 

 

 

Attention:

James T. Taylor

 

Telephone:

(212) 782-4116

 

Facsimile:

(212) 782-6442

 

 

S-17



 

 

$41,000,000

CITICORP NORTH AMERICA, INC.,

Individually and as Co-Agent

 

 

 

 

 

By:

/s/ David Bouton

 

 

Print Name:

David Bouton

 

 

Title:

Vice President

 

 

 

 

 

 

c/o Citigroup Global Markets, Inc.

 

 

390 Greenwich Street

 

 

1st Floor

 

 

New York, NY 10013

 

 

 

 

 

 

Attention:

Malav Kakad

 

 

Telephone:

(212) 723-4693

 

 

Facsimile:

(646) 291-3638

 

 

 

 

S-18



 

$40,000,000

MIZUHO CORPORATE BANK, LTD.,

Individually and as Co-Agent

 

 

 

 

By:

/s/ Noel P. Purcell

 

Print Name:

Noel P. Purcell

 

Title:

Senior Vice President

 

 

 

 

1251 Avenue of the Americas

 

New York, NY 10020

 

 

 

 

Attention:

Matthew Murphy

 

Telephone:

(212) 282-4295

 

Facsimile:

(212) 282-4488

 

 

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$30,000,000

THE NORTHERN TRUST COMPANY

 

 

 

 

By:

/s/ Robert Wiarda

 

Print Name:

Robert Wiarda

 

Title:

Vice President

 

 

 

 

50 South LaSalle

 

Chicago, Illinois 60603

 

 

 

 

Attention:

Robert Wiarda

 

Telephone:

(312) 444-3380

 

Facsimile:

(312) 444-7028

 

 

S-20



 

$25,000,000

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

 

 

 

 

By:

/s/ Philip Allen

 

Print Name:

Philip Allen

 

Title:

Authorised Signatory

 

 

 

 

By:

/s/ Gwen Evans

 

Print Name:

Gwen Evans

 

Title:

Authorised Signatory

 

 

 

 

Bank of Ireland Corporate

 

B2, Head Office

 

Lower Baggot St.

 

Dublin 2, Ireland

 

 

 

 

Attention:

Philip Allen

 

Telephone:

353 1 ###-###-####

 

Facsimile:

353 1 ###-###-####

 

 

 

S-21



 

 

$25,000,000

CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH

 

 

 

 

By:

/s/ Jim CY. Chen

 

Print Name:

Jim CY. Chen

 

Title:

Vice President & General Manager

 

 

 

 

685 Third Avenue

 

29th Floor

 

New York, NY 10017

 

 

 

 

Attention:

Nelson Chou

 

Telephone:

(212) 651-9770 ext. 24

 

Facsimile:

(212) 651-9785

 

 

S-22



 

 

$10,000,000

BANK HAPOALIM, B.M.

 

 

 

 

By:

/s/ Charles McLaughlin

 

Print Name:

Charles McLaughlin

 

Title:

Senior Vice President

 

 

 

 

By:

/s/ Helen H. Gateson

 

Print Name:

Helen H. Gateson

 

Title:

Vice President

 

 

 

 

New York Branch

 

1177 Avenue of the Americas

 

12th Floor

 

New York, NY 10036

 

 

 

 

Attention:

Marc Bose

 

Telephone:

(212) 782-2181

 

Facsimile:

(212) 782-2382

 

 

S-23



 

 

$25,000,000

SCOTIABANC INC.

 

 

 

 

By:

/s/ J.F. Todd

 

Print Name:

J.F. Todd

 

Title:

Managing Director

 

 

 

 

711 Louisiana, Suite 1400

 

Houston, Texas 77002

 

 

 

 

Attention:

J.F. Todd

 

Telephone:

832 ###-###-####

 

Facsimile:

832 ###-###-####

 

 

 

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EXHIBIT A

 

PRICING SCHEDULE

 

APPLICABLE MARGIN

LEVEL I

RATING

LEVEL II

RATING

LEVEL III RATING

LEVEL IV RATING

LEVEL V

RATING

Eurodollar Rate

0.45%

0.525%

0.65%

0.80%

1.15%

ABR

0.0%

0.0%

0.0%

0.0%

0.15%

APPLICABLE FEE RATE

LEVEL I

RATING

LEVEL II

RATING

LEVEL III RATING

LEVEL IV RATING

LEVEL V

RATING

Letter of Credit Fee

0.45%

0.525%

0.65%

0.80%

1.15%

Facility Fee

0.125%

0.15%

0.15%

0.20%

0.25%

 

For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:

“Level I Rating” means, for the applicable rating agency:  Borrower’s Moody’s Rating is A3 or better; Borrower’s S&P Rating is A- or better.

“Level II Rating” means, for the applicable rating agency: the Borrower’s Moody’s Rating is Baa1 or better; Borrower’s S&P Rating is BBB+ or better.

“Level III Rating” means, for the applicable rating agency: the Borrower’s Moody’s Rating is Baa2 or better; Borrower’s S&P Rating is BBB or better.

“Level IV Rating” means, for the applicable rating agency: the Borrower’s Moody’s Rating is Baa3 or better; Borrower’s S&P Rating is BBB- or better.

“Level V Rating” exists at any date if, on such date, the Borrower has not qualified for Level I Rating, Level II Rating, Level III Rating, or Level IV Rating.

“Moody’s Rating” means, at any time, the rating issued by Moody’s Investors Service, Inc. and then in effect with respect to the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.

“Rating” means Level I Rating, Level II Rating, Level III Rating, Level IV Rating, or Level V Rating.

“S&P Rating” means, at any time, the rating issued by Standard and Poor’s, and then in effect with respect to the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.

 

A-1



 

The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the foregoing table based on the Borrower’s Rating as determined from its then-current Moody’s and S&P Ratings.

In the event that the Ratings of Moody’s and S&P do not match, then the higher of the two Ratings shall determine pricing; provided, however, that if the two Ratings are two gradations apart, then the rating that is between the two differing Ratings shall determine pricing.

The credit rating in effect on any date for the purposes of this Schedule is that in effect at the close of business on such date.  If at any time the Borrower has no Moody’s Rating and no S&P Rating, then Level V Rating shall exist.

 

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