FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is
made and entered into as of December 23, 1998, by and among HIGHWOODS
PROPERTIES, INC., a Maryland corporation ("Highwoods Properties"), HIGHWOODS
FINANCE, LLC, a Delaware limited liability company ("Highwoods Finance"),
HIGHWOODS REALTY LIMITED PARTNERSHIP, a North Carolina limited partnership
("Highwoods Realty"), HIGHWOODS SERVICES, INC., a North Carolina corporation
("Highwoods Services"), each of the Guarantors set forth on the signature page
hereto (collectively, the "Guarantors") and each of the lenders set forth on the
signature page hereto (collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, Highwoods Properties and the Lenders are parties to a certain
Credit Agreement dated as of July 3, 1998 (the "Credit Agreement"; defined terms
used herein without definition shall have the meaning ascribed to such terms in
the Credit Agreement) by and among Highwoods Properties, Highwoods Realty,
Highwoods Services (Highwoods Properties, Highwoods Realty and Highwoods
Services are hereinafter referred to individually as a "Borrower" and
collectively as the "Borrowers"), certain Subsidiaries of the Borrowers, the
Lenders party thereto, NationsBank, N.A., as Administrative Agent for the
Lenders (the "Administrative Agent"), First Union National Bank, as Syndication
Agent for the Lenders, Wells Fargo Bank, National Association, as Documentation
Agent for the Lenders and the institutions identified therein as Managing
Agents;
WHEREAS, Highwoods Finance was formed September 28, 1998 as a wholly
owned subsidiary of Highwoods Properties;
WHEREAS, Highwoods Finance executed that certain Joinder Agreement
dated as of October 19, 1998, pursuant to which Highwoods Finance became a
Credit Party under the Credit Agreement and a Guarantor for all purposes of the
Credit Agreement;
WHEREAS, the Borrowers have requested, and the Lenders have agreed, to
amend the provisions of the Credit Agreement in order to add Highwoods Finance
as a Borrower thereunder and to amend the definition of "Asset Disposition", all
as more particularly set forth below;
WHEREAS, two Subsidiaries executed Joinder Agreements on December 3,
1998, after the 30-day period required by Section 7.12 of the Credit Agreement,
and the Borrowers have requested that the Lenders, and the Lenders have agreed
to, acknowledge that the execution of such Joinder Agreements cured these Events
of Default to the Lenders' satisfaction, all as more particularly set forth
below;
WHEREAS, one subsidiary of a Guarantor executed a Joinder Agreement but
was not required to do so as it was not a Subsidiary under the Credit Agreement
and the Borrowers have
requested that the Lenders, and the Lenders have agreed to, release such
subsidiary from the Credit Agreement, all as more particularly set forth below;
WHEREAS, the parties wish to enter into this First Amendment to reflect
such amendment, waiver and release;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Heading to Credit Agreement. The Credit Agreement is
hereby amended by deleting the introductory heading in its entirety and
substituting in lieu thereof the following:
THIS CREDIT AGREEMENT dated as of July 3, 1998 (as
amended, modified, restated or supplemented from time to time,
the "Credit Agreement"), is by and among HIGHWOODS REALTY
LIMITED PARTNERSHIP, a North Carolina limited partnership
("Highwoods Realty"), HIGHWOODS PROPERTIES, INC., a Maryland
corporation ("Highwoods Properties"), HIGHWOODS FINANCE, LLC,
a Delaware limited liability company ("Highwoods Finance") and
HIGHWOODS SERVICES, INC., a North Carolina corporation
("Highwoods Services") (Highwoods Realty, Highwoods
Properties, Highwoods Finance and Highwoods Services are
hereinafter referred to individually as a "Borrower" and
collectively as the "Borrowers"), certain Subsidiaries of the
Borrowers (such Subsidiaries are hereinafter referred to
individually as a "Guarantor" and collectively as the
"Guarantors"), the Lenders (as defined herein), NATIONSBANK,
N.A., as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"), FIRST UNION NATIONAL
BANK, as Syndication Agent for the Lenders (in such capacity,
the "Syndication Agent"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent for the Lenders (in such
capacity, the "Documentation Agent") and the institutions
identified herein as Managing Agents.
(b) Definition of Asset Disposition. The Credit Agreement is
hereby amended by deleting the definition of "Asset Disposition" in its
entirety and substituting in lieu thereof the following:
"Asset Disposition" means the disposition of any assets
(including without limitation the Capital Stock of a
Subsidiary) of any Consolidated Party whether by sale, lease
(but excluding the lease of assets in the ordinary course of
business), transfer or otherwise to a Person other than a
Credit Party.
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(c) Definition of Change of Control. The Credit Agreement is
hereby amended by deleting clause (iii) of the definition of "Change of
Control" in its entirety and substituting in lieu thereof the
following:
(iii) Highwoods Properties shall fail to be the sole general
partner of Highwoods Realty or own a majority of the Capital
Stock of Highwoods Services or Highwoods Finance.
(d) Section 2.4(b). The Credit Agreement is hereby amended by
deleting subsection (i) of Section 2.4(b) in its entirety and
substituting in lieu thereof the following:
(i) Notices; Disbursement. Whenever one of more of the
Borrowers desires a Swingline Loan advance hereunder it shall
give written notice (or telephonice notice promptly confirmed
in writing) to the Swingline Lender not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be
irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline
Loan advance (which shall be a Business Day), (C) the
principal amount of the Swingline Loan advance requested, (D)
the purpose for which the requested Swingline Loan will be
used by the applicable Borrower and (E) that the
representations and warranties made by the Credit Parties in
any Credit Document are true and correct in all material
respects at and as if made on the date hereof except to the
extent they expressly relate to an earlier date. Each
Swingline Loan shall be made as a Base Rate Loan and shall
have such maturity date (which maturity date shall not be a
date more than three (3) Business Days from the date of
advance thereof) as the Swingline Lender and the applicable
Borrower shall agree upon receipt by the Swingline Lender of
any such notice from the applicable Borrower. The Swingline
Lender shall initiate the transfer of funds representing the
Swingline Loan advance to the applicable Borrower by 3:00 P.M.
(Charlotte, North Carolina time) on the Business Day of the
requested borrowing.
SECTION 2. Events of Default Cured to Satisfaction of Lenders. First
Geary Corp., a California corporation, and Highwoods/Interlachen Holdings, L.P.,
a Delaware limited partnership, both Subsidiaries, executed Joinder Agreements
after 30 days of becoming a Subsidiary in violation of Section 7.12 of the
Credit Agreement. The Lenders do hereby agree that the execution of such Joinder
Agreements cured such Events of Default to their satisfaction.
SECTION 3. Release of Guarantor. Center Court Partners, a Florida
general partnership ("Center Court"), erroneously executed that certain Joinder
Agreement dated as of August 10, 1998, pursuant to which Center Court became a
Credit Party under the Credit Agreement and a Guarantor for all purposes of the
Credit Agreement. Center Court is only 50% owned by Plaza Land Company, a
Florida corporation and a Guarantor, and is thus not a Subsidiary required to be
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a Guarantor under the Credit Agreement. The Lenders do hereby release Center
Court from its obligations under the Joinder Agreement the other Credit
Documents.
SECTION 4. Conditions Precedent to Effectiveness. This First Amendment
shall be effective on the date that the Administrative Agent has received each
of the following, each to be in form and substance satisfactory to the
Administrative Agent:
(a) this First Amendment duly executed by all of the parties hereto;
(b) a certificate from the Secretary of Highwoods Properties, as the
sole member of Highwoods Finance, regarding: (i) the articles of organization of
Highwoods Finance as certified as of a recent date by the Secretary of State of
the State of Delaware, (ii) certificates of good standing or existence or its
equivalent with respect to Highwoods Finance certified as of a recent date by
the appropriate Governmental Authorities of Delaware and each other jurisdiction
in which failure to so qualify and be in good standing could reasonably be
expected to have a Material Adverse Effect, (iii) all corporate action taken by
Highwoods Properties to authorize the execution, delivery and performance by
Highwoods Finance of the documents to which it is a party, and (iv) the
incumbency and specimen signatures of each of the officers of Highwoods
Properties authorized to execute and deliver this Amendment and other documents
on behalf of Highwoods Finance;
(c) replacement Notes, which will replace the existing Notes, duly
executed and delivered by each of the Borrowers; and
(d) an opinion (which shall cover among other things, authority,
legality, validity, binding effect and enforceability) reasonably satisfactory
to the Administrative Agent addressed to the Administrative Agent and the
Lenders, dated as of the date hereof, from legal counsel to the Borrowers;
SECTION 5. No Other Amendment or Waiver. Except for the amendments
expressly set forth above, the Credit Agreement shall remain unchanged and in
full force and effect.
SECTION 6. References to and Effect on the Credit Agreement. Each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, shall mean and be a reference to the Credit
Agreement, including the Exhibits attached thereto, as amended by this First
Amendment and each reference to the Credit Agreement in any other document,
instrument or agreement executed or delivered in connection with the Credit
Agreement shall mean and be a reference to the Credit Agreement, including the
Exhibits attached thereto, as amended by this First Amendment. In addition, each
reference in the Credit Agreement or in any other document, instrument or
agreement executed or delivered in connection with the Credit Agreement to
"Borrower" or "Borrowers" shall be deemed to include a reference to Highwoods
Finance.
SECTION 7. Ratification of Agreement. Except as expressly amended
herein, all terms, covenants and conditions of the Credit Agreement and all
other Credit Documents shall remain
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in full force and effect. The parties hereto do expressly ratify and confirm the
Credit Agreement as amended herein.
SECTION 8. No Waiver, Etc. Except as set forth in Section 2 hereof, the
parties hereto hereby agree that nothing herein shall constitute a waiver by the
Lenders of any Default or Event of Default, whether known or unknown, which may
exist under the Credit Agreement.
SECTION 9. Binding Nature. This First Amendment shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
successors, successors-in-titles, and assigns.
SECTION 10. Governing Law. This First Amendment shall be governed by,
and construed in accordance with, the laws of the State of North Carolina.
SECTION 11. Entire Understanding. This First Amendment sets forth the
entire understanding of the parties with respect to the matters set forth
herein, and shall supersede any prior negotiations or agreements, whether
written or oral, with respect thereto.
SECTION 12. Counterparts. This First Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts
and may be delivered by telecopier. Each counterpart so executed and delivered
shall be deemed an original and all of which taken together shall constitute but
one and the same instrument.
[Signatures Set Forth on Next Page]
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment through their authorized officers as of the date first above written.
BORROWERS:
HIGHWOODS PROPERTIES, INC.,
a Maryland corporation
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS FINANCE, LLC,
a Delaware limited liability company
By: Highwoods Properties, Inc.,
its sole member
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS REALTY LIMITED PARTNERSHIP,
a North Carolina limited partnership
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS SERVICES, INC.,
a North Carolina corporation
By:____________________________________
Name:____________________________
Title:___________________________
GUARANTORS:
HIGHWOODS/FLORIDA HOLDINGS, L.P.,
a Delaware limited partnership
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS/TENNESSEE HOLDINGS, L.P.,
a Tennessee limited partnership
By: Highwoods/Tennessee Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
SHOCKOE PLAZA INVESTORS, L.C.,
a Virginia limited liability company
By: Highwoods Realty Limited Partnership,
its sole manager
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
RC ONE LLC,
a Maryland limited liability company
By: Highwoods Properties, Inc.,
its sole manager
By:____________________________________
Name:____________________________
Title:___________________________
PINELLAS BAY VISTA PARTNERS, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
PINELLAS NORTHSIDE PARTNERS, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
PINELLAS PINEBROOK PARTNERS, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
INTERSTATE BUSINESS PARK, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
DOWNTOWN CLEARWATER TOWER, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
BDBP, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
CROSS BAYOU, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
SISBROS, LTD.,
a Florida limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
SEVEN CRONDALL ASSOCIATES LLC,
a Maryland limited liability company
By: Highwoods Realty Limited Partnership,
its sole manager
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
EIGHT CRONDALL ASSOCIATES LLC,
a Maryland limited liability company
By: Highwoods Realty Limited Partnership,
its sole manager
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
NINE CRONDALL ASSOCIATES LLC,
a Maryland limited liability company
By: Highwoods Realty Limited Partnership,
its sole manager
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
9690 DEERECO ROAD LLC,
a Maryland limited liability company
By: Highwoods Realty Limited Partnership,
its sole manager
By: Highwoods Properties, Inc.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
HPI TITLE AGENCY, LLC,
a North Carolina limited liability company
By: Highwoods Services, Inc.,
its sole manager
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS WELLNESS CENTER, LLC,
A North Carolina limited liability company
By: Highwoods Services, Inc.,
its sole manager
By:____________________________________
Name:____________________________
Title:___________________________
MARLEY CONTINENTAL HOMES OF KANSAS,
a Kansas general partnership
By: Highwoods Properties, Inc.,
its managing general partner
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS/INTERLACHEN HOLDINGS, L.P.,
a Delaware limited partnership
By: Highwoods/Florida Holdings, L.P.,
its sole general partner
By: Highwoods/Florida GP Corp.,
its sole general partner
By:____________________________________
Name:____________________________
Title:___________________________
HIGHWOODS/FLORIDA GP CORP.,
a Delaware corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
HIGHWOODS/TENNESSEE PROPERTIES, INC.,
a Tennessee corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
PIKESVILLE SPORTSMAN'S CLUB, INC.,
a Maryland corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
SOUTHEAST REALTY OPTIONS CORP.,
a Delaware corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
5565 STERRETT PLACE, INC.,
a Maryland corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
ATRIUM ACQUISITION CORP.,
a Maryland corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
ALAMEDA TOWERS DEVELOPMENT COMPANY,
a Missouri corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
THE BAY PLAZA COMPANIES, INC.,
a Florida company
By: _________________________________
Name: ____________________________
Title: _____________________________
BOARD OF TRADE REDEVELOPMENT CORPORATION,
a Missouri corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
CHALLENGER, INC.,
a Kansas corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
GUARDIAN MANAGEMENT, INC.,
a Kansas corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
NICHOLS PLAZA WEST, INC.,
a Missouri corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
OZARK MOUNTAIN VILLAGE, INC.,
a Missouri corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
PLAZA LAND COMPANY,
a Florida company
By: _________________________________
Name: ____________________________
Title: _____________________________
SOMEDAY, INC.,
a Kansas corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
KC CONDOR, INC.,
a Missouri corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
J.C. NICHOLS REALTY COMPANY,
a Missouri company
By: _________________________________
Name: ____________________________
Title: _____________________________
1st GEARY CORP.,
a California corporation
By: _________________________________
Name: ____________________________
Title: _____________________________
LENDERS:
NATIONSBANK, N.A.,
Individually in its capacity as a Lender
And in its capacity as Administrative Agent
By:____________________________________
Name:____________________________
Title:___________________________
FIRST UNION NATIONAL BANK
By:____________________________________
Name:____________________________
Title:___________________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:____________________________________
Name:____________________________
Title:___________________________
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By:____________________________________
Name:____________________________
Title:___________________________
COMMERZBANK AG
By:____________________________________
Name:____________________________
Title:___________________________
WACHOVIA BANK, N.A.
By:____________________________________
Name:____________________________
Title:___________________________
CENTURA BANK
By:____________________________________
Name:____________________________
Title:___________________________
PNC BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:____________________________
Title:___________________________
FLEET NATIONAL BANK
By:____________________________________
Name:____________________________
Title:___________________________
AMSOUTH BANK
By:____________________________________
Name:____________________________
Title:___________________________
DRESDNER BANK AG, NEW YORK BRANCH
By:____________________________________
Name:____________________________
Title:___________________________
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By:____________________________________
Name:____________________________
Title:___________________________
By:____________________________________
Name:____________________________
Title:___________________________
MELLON BANK, N.A.
By:____________________________________
Name:____________________________
Title:___________________________
FIRSTRUST SAVINGS BANK
By:____________________________________
Name:____________________________
Title:___________________________
CREDIT LYONNAIS, NEW YORK BRANCH
By:____________________________________
Name:____________________________
Title:___________________________
BAYERISCHE HYPO-UND VEREINSBANK, AG
By:____________________________________
Name:____________________________
Title:___________________________
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By:____________________________________
Name:____________________________
Title:___________________________