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Maryland
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001-13100
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56-1871668
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(State or other jurisdiction
of incorporation or organization)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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North Carolina
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000-21731
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56-1869557
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(State or other jurisdiction
of incorporation or organization)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange on Which Registered
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Common Stock, $.01 par value, of
Highwoods Properties, Inc. |
HIW
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New York Stock Exchange
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Item 1.01.
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Entry into a Material Definitive Agreement.
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Item 2.03.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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Item 8.01.
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Other Events.
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Item 9.01.
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Financial Statements and Exhibits.
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4.1
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4.2
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5
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8
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23.1
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23.2
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99.1
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99.2
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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HIGHWOODS PROPERTIES, INC.
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By:
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/s/ Jeffrey D. Miller
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Jeffrey D. Miller
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Executive Vice President, General Counsel and Secretary
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HIGHWOODS REALTY LIMITED PARTNERSHIP
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By: Highwoods Properties, Inc., its general partner
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By:
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/s/ Jeffrey D. Miller
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Jeffrey D. Miller
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Executive Vice President, General Counsel and Secretary
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REGISTERED
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PRINCIPAL AMOUNT
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No.: 1
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$400,000,000
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CUSIP No: 431282 AT9
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HIGHWOODS REALTY LIMITED PARTNERSHIP
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By:
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Highwoods Properties, Inc., its General Partner
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By:
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Theodore J. Klinck
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President and Chief Executive Officer
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By:
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Jeffrey D. Miller
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Executive Vice President, General Counsel and Secretary
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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Paul E. Vaden
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Vice President
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1.
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The Notes shall constitute one series of Securities having the title 2.600% Notes due February 1, 2031 (the “Notes”).
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2.
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The Notes will initially be limited to $400,000,000 aggregate principal amount. We may in the future, without the consent of the Holders, increase the principal amount of the Notes by issuing additional Notes on the same terms and conditions.
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3.
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The Notes shall be issued at 100% of the principal amount thereof.
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4.
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The Notes will mature on February 1, 2031 (the “Maturity Date”), subject to prior redemption at the option of the Issuer as described in paragraph 7 below.
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5.
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The rate at which the Notes shall bear interest shall be 2.600% per annum. The date from which such interest shall accrue shall be August 13, 2020. The Interest Payment Dates on which interest will be payable shall be February 1 and August 1 in each year, beginning February 1, 2021; the Regular Record Date for the interest payable on the Notes on any Interest Payment Date shall be the 15th calendar day prior to each Interest Payment Date regardless of whether such day is a Business Day.
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6.
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The Notes will be issued only in fully registered form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
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7.
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The Notes will be redeemable at the Issuer’s option and in its sole discretion, at any time in whole or from time to time in part, on any date (a “Redemption Date”). Before November 1, 2030 (a date that is three months prior to the Maturity Date, the “Par Call Date”), the Issuer may redeem the Notes at a redemption price equal to the sum of: (i) the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date; and (ii) the Make-Whole Amount, if any, with respect to such Notes. If the Notes are redeemed on or after the Par Call Date, the Issuer may redeem the Notes at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the principal amount of the Notes to be redeemed to, but excluding, the Redemption Date.
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8.
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The Issuer shall not be obligated to redeem, repay or purchase Notes pursuant to any sinking fund or analogous provision or at the option of a Holder thereof.
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9.
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The principal of, premium, if any, or interest on the Notes may not be paid in a currency other than U.S. Dollars.
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10.
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The Notes are issuable only as Registered Securities and will be represented by a permanent global security (the “Global Note”) without coupons registered in the name of The Depository Trust Company (“DTC”) or its nominee. DTC or its nominee will credit, on its book-entry registration and transfer system, the respective amounts of Notes represented by the Global Note. Ownership of beneficial interest in the Global Note will be limited to institutions that have accounts with DTC or its nominee (“Participants”) and to persons that may hold interests through Participants. DTC shall be the depositary of the Global Note. The form of the Global Note, attached hereto, is hereby approved. Beneficial owners of interests in the Global Note may not exchange such interests for certificated Notes other than in the manner provided in Section 305 of the Indenture.
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11.
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The Notes are not Guaranteed Securities.
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12.
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The Issuer shall not pay Additional Amounts (as contemplated by Section 1004 of the Indenture) on the Notes.
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13.
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Other than as set forth herein, there shall be no deletions from, modifications or additions to the Events of Default or the covenants of the Issuer with respect to the Notes from those set forth in the Indenture. Notwithstanding the foregoing, solely for purposes of the Notes:
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a.
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Section 1012 of the Indenture is hereby deemed to be amended and restated in its entirety as follows: “The Issuer will maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of all outstanding Unsecured Debt of the Issuer.”
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b.
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The definition of “Total Unencumbered Assets” under Section 101 of the Indenture is hereby deemed to be amended and restated in its entirety as follows: “Total Unencumbered Assets” means the sum of (i) those Undepreciated Real Estate Assets not subject to an encumbrance and (ii) all other assets of the Issuer and its Subsidiaries not subject to an encumbrance determined in accordance with GAAP (but excluding intangibles and accounts receivable); provided, however, that all investments by the Issuer and its Subsidiaries in unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities are excluded from the calculation of Total Unencumbered Assets to the extent that such investments would have otherwise been included.”
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c.
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The second paragraph of Section 1014 of the Indenture is hereby deemed to be amended and restated in its entirety as follows: “The Issuer will also in any event (unless available
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d.
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Effective upon the time that all Securities issued under the Indenture prior to the date of this Certificate are no longer Outstanding, Section 501(5) of the Indenture shall automatically be amended and restated in its entirety as follows:
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i.
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“(5) default under any evidence of recourse Indebtedness of the Issuer or under any mortgage, indenture or other instrument of the Issuer (including a default with respect to Securities of any series other than the Notes) under which there may be issued or by which there may be secured any recourse Indebtedness of the Issuer (or by any Subsidiary, the repayment of which the Issuer has guaranteed or for which the Issuer is directly responsible or liable as obligor or guarantor), whether such Indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $25,000,000 of such Indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such Indebtedness in an aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such Indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 10% in principal amount of the Notes a written notice specifying such default and requiring the Issuer to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or”
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e.
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The definition of “Indebtedness” under Section 101 of the Indenture is hereby deemed to be amended and restated in its entirety as follows: “Indebtedness” means any indebtedness, whether or not contingent, in respect of (i) borrowed money evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable or (iv) any lease of property as lessee which would be reflected on a consolidated balance sheet as a financing lease in accordance with GAAP, in the case of items of indebtedness under (i) through (iii) above to the extent that any such items (other than letters of credit) would appear as a liability on a consolidated balance sheet in accordance with GAAP, and
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f.
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The definition of “Undepreciated Real Estate Assets” under Section 101 of the Indenture is hereby deemed to be amended and restated in its entirety as follows: “Undepreciated Real Estate Assets” means as of any date the cost (original cost plus capital improvements) of real estate assets and the right of use assets associated with a financing lease in accordance with GAAP of the Issuer and its Subsidiaries on such date, before depreciation and amortization, all determined on a consolidated basis in accordance with GAAP; provided, however, that “Undepreciated Real Estate Assets” shall not include the right of use assets associated with an operating lease in accordance with GAAP.”
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14.
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Holders shall have no special rights in addition to those provided in the Indenture or this Certificate upon the occurrence of any particular events.
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15.
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The place where the principal of, premium, if any, and interest on the Notes shall be payable and the Notes may be surrendered for registration of transfer or exchange and where notices or demands to or upon the Issuer in respect of the Notes and the Indenture may be served shall be U.S. Bank National Association (as successor in interest to Wachovia Bank, N.A. as merged with and into First Union National Bank of North Carolina), 100 Wall Street, Suite 1600, New York, New York 10005.
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16.
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This Officers’ Certificate shall constitute the Officers’ Certificate referenced under Section 301 of the Indenture.
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17.
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Any communication sent to Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative), in English. The Issuer agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
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/s/Theodore J. Klinck
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Theodore J. Klinck
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President and Chief Executive Officer
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/s/ Jeffrey D. Miller
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Jeffrey D. Miller
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Executive Vice President, General Counsel and Secretary
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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/s/ Paul Vaden
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Paul Vaden
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Vice President
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DLA Piper LLP (US)
1251 Avenue of the Americas,
27th Floor
New York, New York 10020-1104
www.dlapiper.com
T 212.335.4500
F 212.335.4501
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(a)
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the Certificate of Limited Partnership of the Operating Partnership, together with all amendments thereto, as certified by the Secretary of State of the State of North Carolina as of January 28, 2020 and by the Secretary of the Company, as the general partner of the Operating Partnership, as of the date hereof;
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(b)
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the Second Restated Agreement of Limited Partnership of the Operating Partnership, together with all amendments and supplements thereto, as certified by the Secretary of the Company, as general partner of the Operating Partnership, as of the date hereof;
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(c)
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copies of resolutions duly adopted by the Board of Directors of the Company on November 4, 1996, January 29, 2020 and July 28, 2020 as certified by the Secretary of the Company as of the date hereof;
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(d)
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the Registration Statement;
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(e)
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the Operating Partnership’s prospectus supplement, dated July 30, 2020, as filed with the Commission on July 31, 2020, pursuant to Rule 424(b) under the Securities Act, together with the base prospectus, dated February 4, 2020 (collectively, the “Final Prospectus”);
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(f)
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an executed copy of the Underwriting Agreement;
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(g)
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an executed copy of the Indenture;
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(h)
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the form of the definitive global note representing the Notes;
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(i)
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an executed copy of the certificate of the Secretary of the Company, dated the date hereof, as to certain factual matters;
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(j)
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the certificate of the Secretary of State of the State of North Carolina as to the existence of the Operating Partnership in the State of North Carolina dated July 29, 2020 (the “North Carolina Certificate”); and
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(k)
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such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
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1.
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the Operating Partnership is a limited partnership duly formed and validly existing under the laws of the State of North Carolina, and has the requisite partnership power to issue the Notes; and
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2.
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the Notes have been duly authorized for issuance by the Operating Partnership, and when executed by the Operating Partnership and authenticated by the Trustee in the manner provided in the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered against payment of the purchase price therefor as provided in the Underwriting Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Operating Partnership under New York law, enforceable against the Operating Partnership under New York law in accordance with their terms.
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1.
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the Company’s Amended and Restated Charter, dated as of May 16, 2008, as amended;
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2.
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the Second Restated Agreement of Limited Partnership of the Operating Partnership, dated January 1, 2000, as amended;
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3.
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the Company’s taxable REIT subsidiary election with respect to Highwoods Services, Inc.;
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4.
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the Registration Statement, the prospectus filed as a part of the Registration Statement (the “Prospectus”) and the Prospectus Supplement; and
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5.
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such other documents as we have deemed necessary or appropriate for purposes of this opinion.
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1.
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each of the documents referred to above has been duly authorized, executed, and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended;
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Vinson & Elkins LLP Attorneys at Law
Austin Beijing Dallas Dubai Hong Kong Houston London
New York Richmond Riyadh San Francisco Tokyo Washington
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2200 Pennsylvania Avenue NW, Suite 500 West
Washington, DC 20037-1701
Tel +1.202.639.6500 Fax +1.202.639.6604 velaw.com
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August 13, 2020 Page 2
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2.
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during its taxable year ending December 31, 2020, and future taxable years, the Company will operate in a manner that will make the representations contained in a certificate, dated the date hereof and executed by a duly appointed officer of the Company (the “Officer’s Certificate”), true for such years, without regard to any qualifications as to knowledge or belief;
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3.
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the Company will not make any amendments to its organizational documents after the date of this opinion that would affect the Company’s qualification as a real estate investment trust (a “REIT”) for any taxable year;
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4.
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no action will be taken by the Company after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based; and
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5.
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the Company qualified to be taxed as a REIT under the Code (as defined below) for its taxable years prior to its taxable year ended December 31, 2006.
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August 13, 2020 Page 3
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Title of
Security
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CUSIP Number
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Principal Amount Outstanding
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Tender Cap (Principal Amount)
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Reference U.S. Treasury Security
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Bloomberg Reference Page (1)
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Fixed Spread (basis points)
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Early Tender Premium (per $1,000) (2)
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Principal Amount Tendered at Early Tender Deadline
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3.20% Notes
due 2021
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431282 AN2
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$300,000,000
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$150,000,000
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2.375% UST due 4/15/2021
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FIT3
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20 bps
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$30.00
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$222,588,000
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(1)
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The applicable page on Bloomberg from which the Dealer Manager will quote the bid-side price of the reference U.S. Treasury Security. In the above table, “UST” denotes a U.S. Treasury Security.
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(2)
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The Total Consideration (as defined below) for Notes validly tendered prior to or at the Early Tender Deadline (as defined below) and accepted for purchase is calculated using the Fixed Spread (as specified above) and is inclusive of the Early Tender Premium (as defined below).
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(1)
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In the above table, “UST” denotes a U.S. Treasury Security.
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(2)
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The Total Consideration (as defined below) for Notes validly tendered prior to or at the Early Tender Deadline (as defined below) and accepted for purchase is calculated using the Fixed Spread (as specified above) and is inclusive of the Early Tender Premium (as defined below).
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