SECOND AMENDMENT TO CREDIT AGREEMENT



 
Exhibit 10.2

 
SECOND AMENDMENT TO CREDIT AGREEMENT

 
THIS SECOND AMENDMENT TO CREDIT AGREEMENT
dated as of December     , 2002 (the “Second Amendment”), 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”), HIGHWOODS SERVICES, INC., a North Carolina corporation
(“Highwoods Services”), and HIGHWOODS/TENNESSEE HOLDINGS, L.P., a Tennessee limited partnership (“Highwoods Tennessee”) (Highwoods Realty, Highwoods Properties, Highwoods Finance, Highwoods Services, and Highwoods
Tennessee are hereinafter referred to individually as a “Borrower” and collectively as the “Borrowers”), the subsidiaries of the Borrowers identified on the signature pages attached hereto (such Subsidiaries are
hereinafter referred to individually as a “Guarantor” and collectively as the “Guarantors”), the Lenders (as defined in the Credit Agreement referenced below), BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders (in such capacity, the “Administrative Agent”), BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger (in such capacity, the “Sole Lead Arranger”) and Sole Book Manager (in such capacity, the “Sole
Book Manager”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent (in such capacity, the “Syndication Agent”), WACHOVIA BANK, N.A., as Documentation Agent (in such capacity, the “Documentation
Agent”), and is an amendment to that certain Credit Agreement dated as of December 13, 2000 by and among the Borrowers, Guarantors, Lenders, Administrative Agent, Sole Lead Arranger, Sole Book Manager, Syndication Agent and Documentation
Agent, as amended by that certain First Amendment to Credit Agreement dated as of June 29, 2001 (as the same may have been further amended, restated, supplemented or otherwise modified, the “Credit Agreement”). 
 
W I T N E S S E T H 
 
WHEREAS, each of the Borrowers and the Guarantors have
requested and the Lenders and Administrative Agent have agreed to amend the Credit Agreement on the terms and conditions set forth herein; 
 
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged by the parties hereto, the parties
hereto agree as follows: 
 
1. Amendment to
Credit Agreement. Section 7.11(g) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: 
 
“(g) Tangible Net Worth. At all times the Tangible Net Worth shall be greater than or equal to the sum of (i)
$1,625,000,000.00, plus (ii) an amount equal to 85% of the Net Cash Proceeds of any Equity Issuance received by the Consolidated Parties subsequent to December     , 2002 calculated on a cumulative basis as of the end of
each fiscal quarter of the Consolidated Parties following December     , 2002, less (iii) an amount equal to 85% of the aggregate Dollar amount paid by the Principal Borrower for the purchase, redemption, retirement
or acquisition of Capital Stock of the Principal Borrower following December     , 2002 pursuant to Section 7.11(k) hereof as set forth in the Quarterly Compliance Certificates delivered to the Agent pursuant to Section
7.1(l).” 
 
2. Conditions Precedent.
The effectiveness of this Second Amendment is subject to receipt by the Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent: 
 
(a) A counterpart of this Second Amendment duly executed by the Borrowers, Guarantors,
Lenders, Administrative Agent, Sole Lead Arranger, Sole Book Manager, Syndication Agent and Documentation Agent; and 
 
(b) Such other documents, instruments and agreements as the Administrative Agent may reasonably request. 
 
3. Representations. Each of the Borrowers and each of
the Guarantors collectively represent and warrant to the Administrative Agent and the Lenders that: 
 









 
(a) Authorization. Each of the Borrowers and each of the Guarantors, respectively, has the right and power and has obtained all authorizations necessary to execute and deliver this Second Amendment and to perform its
respective obligations hereunder and under the Credit Agreement, as amended by this Second Amendment, in accordance with their respective terms. This Second Amendment has been duly executed and delivered by a duly authorized officers of each of the
Borrowers and each Guarantor, respectively, and each of this Second Amendment and the Credit Agreement, as amended by this Second Amendment, is a legal, valid and binding obligation of each of the Borrowers and each Guarantor (each as applicable),
enforceable against each of the Borrowers and each Guarantor (each as applicable) in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors
generally and by equitable principles generally. 
 
(b) Compliance with Laws, etc. The execution and delivery by each of the Borrowers and each of the Guarantors of this Second Amendment and the performance by each of the Borrowers and/or the Guarantors of this Second
Amendment and the Credit Agreement, as amended by this Second Amendment, in accordance with their respective terms, does not and will not, by the passage of time, the giving of notice or otherwise: (i) require any approval (other than those already
obtained) by any Governmental Authority or violate any law (including any Environmental Law) which is applicable to a Borrower, any Guarantors, any Consolidated Party, the Credit Documents or the transactions contemplated herein or therein; (ii)
conflict with, result in a breach of or constitute a default under the organizational documents of any Borrower, any of the Guarantors or any other Consolidated Party, or any indenture, agreement/or other instrument to which any Borrower, any of the
Guarantors or any other Consolidated Party is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter
acquired by any Borrower, any Guarantor or any other Consolidated Party other than in favor of the Administrative Agent for the benefit of the Lenders; and 
 
(c) No Default. No Default or Event of Default has occurred and is continuing as of the date hereof nor will exist
immediately after giving effect to this Second Amendment. 
 
4. Reaffirmation of Representations. Each of the Borrowers and each of the Guarantors hereby repeat and reaffirm all representations and warranties made by such party to the Administrative Agent and the Lenders in the Credit
Agreement and the other Credit Documents to which it is a party on and as of the date hereof (other than any representation or warranty expressly relating to an earlier date) with the same force and effect as if such representations and warranties
were set forth in this Second Amendment in full. 
 
5. Reaffirmation of Guaranty. Each of the Guarantors hereby reaffirms its continuing obligations to the Administrative Agent and the Lenders under the Credit Agreement and agrees that the transactions contemplated by this
Second Amendment shall not in any way affect the validity and enforceability of their respective guaranty obligations thereunder or reduce, impair or discharge the obligations of such Guarantors thereunder. 
 
6. Severability. If any provision of any of this
Second Amendment or of the Credit Agreement, as amended hereby, is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed
without giving effect to the illegal, invalid or unenforceable provisions. 
 
7. Certain References. Each reference to the Credit Agreement in any of the Credit Documents shall be deemed to be a reference to the Credit Agreement as amended by this Second Amendment and
this Second Amendment shall be deemed a Credit Document for purposes of the application of provisions of the Credit Agreement generally applicable thereto (including, without limitation, any arbitration provisions or waiver provisions).

 
8. Expenses. The Borrowers shall
reimburse the Administrative Agent upon demand for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Second
Amendment and the other agreements and documents executed and delivered in connection herewith. 
 

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9.
Benefits. This Second Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 
 
10. Default. The failure of any of the Borrowers or any of the Guarantors to perform any of their respective obligations under this
Second Amendment or the material falsity of any representation or warranty made herein shall, at the option of the Administrative Agent and/or Lenders (as determined in accordance with the Credit Agreement) after expiration of any applicable cure
period, constitute an Event of Default under the Credit Documents. 
 
11. No Novation. The parties hereto intend this Second Amendment to evidence the amendments to the terms of the existing indebtedness of the Borrowers and Guarantors to the Lenders as specifically set forth herein and
do not intend for such amendments to constitute a novation in any manner whatsoever. 
 
12. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE. 
 
13. Effect.
Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Credit Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein. 
 
14.
Counterparts. This Second Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Second Amendment to produce or account for more than one such counterpart for each of the parties hereto. Delivery by facsimile by any of the parties hereto of an executed counterpart of this Second Amendment shall be as
effective as an original executed counterpart hereof and shall be deemed a representation that an original executed counterpart hereof will be delivered. Each counterpart hereof shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns. 
 
15.
Binding Effect. This Second Amendment shall become effective at such time when all of the conditions set forth in Section 2 hereof have been satisfied or waived by the Lenders and it shall have been executed by the Borrowers, the Guarantors
and the Administrative Agent, and the Administrative Agent shall have received copies hereof (telefaxed or otherwise) which, when taken together, bear the signatures of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Guarantors, the Administrative Agent and each Lender and their respective successors and assigns. 
 
16. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in
the Credit Agreement. The interpretive. provisions set forth in Sections 1.2 and 1.3 of the Credit Agreement shall apply to this Second Amendment as though set forth herein. 
 
[Signature Pages to Follow] 
 

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IN WITNESS
WHEREOF, each of the parties hereto has caused a counterpart of this Second Amendment to be duly executed and delivered as of the date Second above written. 
 

	 BORROWERS:
	 	 	 	 HIGHWOODS REALTY LIMITED PARTNERSHIP

	 	 	 	 	 	 	 	 	 By: HIGHWOODS PROPERTIES, INC.  

	
	 	 	 	 	 	 	 HIGHWOODS PROPERTIES, INC.

	 	 	 	 	 	 	 HIGHWOODS SERVICES, INC

	 	 	 	 	 	 	 HIGHWOODS FINANCE, LLC

	 	 	 	 	 	 	 	 	 By: HIGHWOODS PROPERTIES, INC.  

	
	 	 	 	 	 	 	 HIGHWOODS/TENNESSEE HOLDINGS, L.P.

	 	 	 	 	 	 	 	 	 By: HIGHWOODS/TENNESSEE PROPERTIES, INC.

	
	 	 	 	 	 	 	 By:
	 	 /s/ Ronald P. Gibson


	 	 	 	 	 	 	 	 	 Name: Ronald P. Gibson

	 	 	 	 	 	 	 	 	 Title: President and Chief Executive Officer

	
	 GUARANTORS:
	 	 	 	 SOUTHEAST REALTY OPTIONS CORP.

	 	 	 	 	 HIGHWOODS/FLORIDA GP CORP.

	 	 	 	 	 HIGHWOODS/TENNESSEE PROPERTIES, INC.

	 	 	 	 	 ATRIUM ACQUISITION CORP.

	 	 	 	 	 1st GEARY CORP.

	 	 	 	 	 HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 	 	 By: HIGHWOODS FLORIDA GP CORP.

	
	 	 	 	 	 PINELLAS NORTHSIDE PARTNERS, LTD.

	 	 	 	 	 	 	 By: HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 	 	 By: HIGHWOODS/FLORIDA GP CORP.

	
	 	 	 	 	 PINELLAS BAY VISTA PARTNERS, LTD.

	 	 	 	 	 	 	 By: HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 	 	 By: HIGHWOODS/FLORIDA GP CORP.


 
(Signatures continued on next page) 
 









 

	 	 	 	 	 DOWNTOWN CLEARWATER TOWER, LTD.

	 	 	 	 	 	 	         By: HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 	 	                By: HIGHWOODS/FLORIDA GP CORP.

	
	 	 	 	 	 	 	 SISBROS, LTD.

	 	 	 	 	 	 	         By: HIGHWOODS/ FLORIDA
HOLDINGS, L.P.

	 	 	 	 	 	 	                By: HIGHWOODS/FLORIDA GP CORP.

	
	 	 	 	 	 	 	 SHOCKOE PLAZA INVESTORS, L.C.

	 	 	 	 	 	 	         By: HIGHWOODS REALTY LIMITED PARTNERSHIP

	 	 	 	 	 	 	                By: HIGHWOODS PROPERTIES, INC.

	
	 	 	 	 	 	 	 RC ONE LLC

	 	 	 	 	 	 	         By: HIGHWOODS SERVICES,
INC.

	
	 	 	 	 	 	 	 HPI TITLE AGENCY, LLC

	 	 	 	 	 	 	         By: HIGHWOODS REALTY LIMITED PARTNERSHIP

	 	 	 	 	 	 	                By: HIGHWOODS PROPERTIES, INC.

	
	 	 	 	 	 	 	 ALAMEDA TOWERS DEVELOPMENT COMPANY
 CHALLENGER, INC.
 GUARDIAN MANAGEMENT, INC.
 HIGHWOODS/CYPRESS
COMMONS LLC

	 	 	 	 	 	 	         By: AP SOUTHEAST
PORTFOLIO PATNERS, L.P.

	 	 	 	 	 	 	                By: AP-GP SOUTHEST PORTFOLIO PARTNERS, L.P.

	 	 	 	 	 	 	                       By: HIGHWOODS REALTY GP CORP.

	
	 	 	 	 	 	 	 HIGHWOODS/INTERLACHEN HOLDINGS, L.P.

	 	 	 	 	 	 	         By: HIGHWOODS/ FLORIDA
HOLDINGS, L.P.
                By: HIGHWOODS/FLORIDA GP CORP.

	
	 	 	 	 	 	 	 HIGHWOODS CONSTRUCTION SERVICES, LLC

	 	 	 	 	 	 	         By: HIGHWOOD SERVICES,
INC.


 
(Signatures continued on next page) 
 










	 HIGHWOODS DLF, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 HIGHWOODS DLF II, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 PAPEC RICHMOND II, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 PAPEC WESTON I, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 PAPEC WESTON II, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 PAPEC WESTON III, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 SPI SHADOW CREEK II, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 HARBORVIEW PLAZA, LLC
 By: HIGHWOODS/FLORIDA HOLDINGS, L.P.
 By: HIGHWOODS/FLORIDA GP CORP.

	
	 SPI BROOKFIELD I, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 SPI BROOKFIELD II, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 SPI BUSINESS HOLDINGS, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.

	
	 SPI CENTURY PLAZA III, LLC
 By: HIGHWOODS REALTY LIMITED PARTNERSHIP
 By: HIGHWOODS PROPERTIES, INC.










 

	 SPI JEFFERSON VILAGE, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 SPI SEVEN SPRINGS I, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 SPI TRADEPORT OFFICE III, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 SPI RALEIGH CORPORATE CENTER, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 HIGHWOODS COLONNADE, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 HIGHWOODS WELLNESS CENTER, LLC
 By: HIGHWOODS SERVICES, INC.

	
	 HIGHWOODS 3322, LLC
 By HIGHWOODS/FLORIDA HOLDINGS, L.P.
 By: HIGHWOODS/FLORIDA GP CORP.

	
	 THE J. C. NICHOLS REALTY COMPANY

	 KC CONDOR, INC.

	 NICHOLS PLAZA WEST, INC.

	 OZARK MOUNTAIN VILLAGE, INC.

	 SHADOW CREEK I, LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.

	
	 SOMEDAY, INC.

	 4551 COX ROAD LLC
 By: HIGHWOODS REALTY LIMITED
 PARTNERSHIP
 By: HIGHWOODS PROPERTIES,
INC.



 
(Signatures continued on next page) 







 

	 4600 COX ROAD LLC

	 	 	 By: HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 By: HIGHWOODS/FLORIDA GP CORP.

	
	 581 HIGHWOODS, L.P.

	 	 	 By: HIGHWOODS/FLORIDA HOLDINGS, L.P.

	 	 	 	 	 By: HIGHWOODS/FLORIDA GP CORP.

	
	 By:
	 	 	 	 /s/ Ronald P. Gibson


	 	 	 	 	 Name: Ronald P. Gibson

	 	 	 	 	 Title: President and Chief Executive Officer










 

	 LENDERS:
	 	 	 	 BANK OF AMERICA, N.A.,

	 	 	 	 	 	 	 individually in its capacity as a Lender

	 	 	 	 	 	 	 and in its capacity as Administrative
Agent

	
	 	 	 	 	 	 	 By:
	 	 /s/ Gregg Higson


	 	 	 	 	 	 	 Name:
	 	 Gregg Higson


	 	 	 	 	 	 	 Title: 
	 	 Vice President


	
	 	 	 	 	 WELLS FARGO BANK, NATIONAL ASSOCIATION

	 	 	 	 	 individually in its capacity as a Lender

	 	 	 	 	 and in its capacity as Syndication Agent

	
	 	 	 	 	 	 	 By:
	 	 /s/ John S. Misiura


	 	 	 	 	 	 	 Name: 
	 	 John S. Misiura


	 	 	 	 	 	 	 Title: 
	 	 Vice President


	
	 	 	 	 	 WACHOVIA BANK, N.A.

	 	 	 	 	 individually in its capacity as a Lender

	 	 	 	 	 and in its capacity as Documentation Agent

	
	 	 	 	 	 	 	 By:
	 	 /s/ David Hoagland


	 	 	 	 	 	 	 Name: 
	 	 David Hoagland


	 	 	 	 	 	 	 Title: 
	 	 Vice President


	
	 	 	 	 	 COMMERZBANK AG,

	 	 	 	 	 NEW YORK AND GRAND CAYMAN BRANCHES

	 	 	 	 	 individually in its capacity as a Lender

	 	 	 	 	 and as Managing Agent

	
	 	 	 	 	 	 	 By:
	 	  


	 	 	 	 	 	 	 Name: 
	 	  


	 	 	 	 	 	 	 Title: 
	 	  


	
	 	 	 	 	 PNC BANK, NATIONAL ASSOCIATION

	 	 	 	 	 individually in its capacity as a Lender

	 	 	 	 	 and as a Co-Agent

	
	 	 	 	 	 	 	 By:
	 	 /s/ Timothy P. Gleeson


	 	 	 	 	 	 	 Name: 
	 	 Timothy P. Gleeson


	 	 	 	 	 	 	 Title: 
	 	 Assistant Vice President



 
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	 AMSOUTH BANK

	 individually in its capacity as a Lender

	 and as a Co-Agent

	
	 By:
	 	 /s/ Robert W. Blair


	 Name: 
	 	 Robert W. Blair


	 Title: 
	 	 Vice President


	
	 SOUTHTRUST BANK

	 individually in its capacity as a Lender

	 and as a Co-Agent

	
	 By:
	 	 /s/ Sidney Clapp


	 Name:
	 	 Sidney Clapp


	 Title:
	 	 Assistant Vice President


	
	 CENTURA BANK

	 individually in its capacity as a Lender

	 and as a Co-Agent

	
	 By:
	 	  


	 Name: 
	 	  


	 Title: 
	 	  


	
	 BRANCH BANKING AND TRUST COMPANY

	 individually in its capacity as a Lender

	 and as a Co-Agent

	
	 By:
	 	 /s/ Holger Ebert


	 Name: 
	 	 Holger B. Ebert


	 Title: 
	 	 SVP


	
	 ERSTE BANK, NEW YORK BRANCH

	 individually in its capacity as a Lender

	
	 By:
	 	 /s/ Gregory Aptman


	 Name: 
	 	 Gregory T. Aptman


	 Title: 
	 	 Vice President


	
	 By:
	 	 /s/ Robert Suehnholz


	 Name: 
	 	 Robert R. Suehnholz


	 Title: 
	 	 First Vice President