Exhibit 4.5
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (the "Depositary"), to the
Issuer (as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of the
Depositary (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of the Depositary), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $200,000,000
CUSIP No: 431282 AF9
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
7 1/2% NOTE DUE APRIL 15, 2018
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP, a North Carolina limited
partnership (hereinafter called the "Issuer," which term shall include any
successor partnership or entity under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
upon presentation, the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000) on April 15, 2018, and to pay interest on the outstanding
principal amount thereon from April 15, 1998, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on April 15 and October 15, in each year, commencing October 15,
1998, at the rate of 7 1/2% per annum, until the entire principal amount hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be 15 calendar days (whether or not a
Business Day) preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, which shall not be more than 15 days and
not less than 10 days prior to the date of the proposed payment, notice whereof
shall be given to Holders not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon exchange, all as more fully provided in the Indenture. Payment
of the principal of and interest on this Note or the Redemption Price (as
defined below), if any, will be made at the Office or Agency of the Issuer
maintained for that purpose in the City of New York, State of New York,
currently located c/o First Union National Bank of New York, 40 Broad Street,
5th Floor, Suite 550,
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New York, New York 10004, or elsewhere as provided in the Indenture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Issuer payment of interest may be made by (i) check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register kept for the Notes pursuant to Section 305 of the Indenture
(the "Note Register") or (ii) transfer to an account of the Person entitled
thereto located inside the United States.
This Note is one of a duly authorized issue of securities of the Issuer (herein
called the "Notes"), issued and to be issued in one or more series under an
Indenture, dated as of December 1, 1996 (herein called the "Indenture"), among
the Issuer, Highwoods Properties, Inc. and First Union National Bank (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the Notes), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee, Highwoods Properties, Inc. and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated as the "7 1/2% Notes due April 15, 2018,"
limited in aggregate principal amount to $200,000,000.
The Notes will be redeemable, in whole or from time to time in part,
at the option of the Issuer on any date (a "Redemption Date"), at a redemption
price (the "Redemption Price") equal to the greater of (i) 100% of the principal
amount of the Notes to be redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of
interest accrued to such Redemption Date) discounted to such Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 25 basis points, plus, in either case, accrued and
unpaid interest on the principal amount being redeemed to such Redemption Date;
provided that installments of interest on Notes which are due and payable on an
Interest Payment Date falling on or prior to the relevant Redemption Date shall
be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Regular Record Date
according to their terms and the provisions of the Indenture.
The following definitions apply with respect to any redemption of
the Notes:
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, (i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or
(ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
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per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Independent Investment Banker" means Morgan Stanley & Co.
Incorporated or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee after consultation with the Issuer.
"Comparable Treasury Price" means with respect to any Redemption
Date for the Notes (i) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities Inc. and NationsBanc Montgomery Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Issuer will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
If notice has been given as provided in the Indenture and funds for
the redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of any Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the security
register for such Notes, not more than 60 nor less than 30 days prior to the
date fixed for redemption. The notice of redemption will specify, among other
items, the Redemption Price and the principal amount of the Notes held by such
Holder to be redeemed.
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The Issuer will notify the Trustee at least 60 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of such Notes to be redeemed and their
redemption date. If less than all of the Notes are to be redeemed at the option
of the Issuer, the Trustee shall select, in such manner as it shall deem fair
and appropriate, such Notes to be redeemed in whole or in part.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Issuer on this Note and (b) certain restrictive covenants
and the related defaults and Events of Default applicable to the Issuer, in each
case, upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall not
have received from the Holders of a majority in principal amount of the Notes of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement of
any payment of principal hereof or any interest on or after the respective due
dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note or the
Redemption Price of this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the Office
or Agency of the Issuer in any Place of Payment where the principal of and
interest on this Note or the Redemption Price of this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar for the Notes (the "Note
Registrar") duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Trustee or the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE OR INSTRUMENTS ENTERED INTO AND, IN EACH CASE, PERFORMED IN
SAID STATE.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed this 20th day of April, 1998.
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its General
Partner
By: ___________________________________________
Ronald P. Gibson
President and Chief Executive Officer
Attest:
By:__________________________
Edward J. Fritsch
Secretary
[SEAL]
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TRUSTEE' S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated "7 1/2% Notes due April
15, 2018" referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By: ____________________________
Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
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................................................................................
(Please Print or Typewrite Name and Address, including
Zip Code, of Assignee)
................................................................................
the within Note of Highwoods/Forsyth Limited Partnership and ___________________
hereby does irrevocably constitute and appoint
................................................................................
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .........................................................................
Signature: .....................................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature
Guaranteed: ....................................................................
NOTICE Signature(s) must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
that is a member or participant in a "SIGNATURE GUARANTEE PROGRAM" (E.G., the
Securities Transfer Agents Medallion Program, the Stock Exchange Medallion
Program or the New York Stock Exchange, Inc. Medallion Signature Program).
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