FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT to the Loan Agreement referred to below (the
"First Amendment"), is made and entered into as of this 22nd day of May, 1997,
by and between TANGER PROPERTIES LIMITED PARTNERSHIP, a North Carolina limited
partnership (which, together with its Subsidiaries from time to time, is
referred to as the "Debtor"), and SOUTHTRUST BANK OF ALABAMA, NATIONAL
ASSOCIATION, a national banking association (the "Bank").
WITNESSETH:
WHEREAS, Debtor and Bank are parties to a Loan Agreement dated as of
November 18, 1996 (as amended, restated or otherwise modified, the "Loan
Agreement"); and,
WHEREAS, the Debtor has requested that the Bank amend the Loan
Agreement to increase the Commitment Amount thereunder to Twenty Million Dollars
($20,000,000), and the Bank has agreed to do so, but only on the terms and
conditions set forth below in this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged by the parties, and of the mutual
promises contained herein, the parties hereto agree as follows effective on and
after the date hereof:
SECTION 1. Definitions. (a) Capitalized terms not otherwise defined in
this First Amendment shall have the meanings ascribed thereto in the Loan
Agreement.
(b) "EFFECTIVE DATE" means the date of this Amendment or such later
Business Day upon which each condition described below shall be satisfied or
waived in a manner acceptable to the Bank.
(c) Section 1.1 of the Loan Agreement is hereby amended by deleting the
defined term "Commitment Amount" and substituting the following in lieu thereof:
"COMMITMENT AMOUNT" shall mean the amount not less than $20,000,000 as
set forth on Exhibit "A" hereto, as amended from time to time.
SECTION 2. Modifications to Loan Agreement. The parties hereto agree
that the Loan Agreement is modified as follows:
(a) Section 2.10 of the Loan Agreement is hereby amended by deleting it
in its entirety and substituting the following in lieu thereof:
"Section 2.10. Commitment Fee; Credit Fee. Debtor agrees to pay to Bank
(a) on the date hereof and on each anniversary of the date hereof, in advance an
annual commitment fee of 0.25% of Commitment Amount, (b) on the closing date of
any increase, in advance an annual commitment fee of 0.25% of the increase
amount, and (c) in arrears due ten days after receipt of invoice from the
Bank, prepared as of the last day of December, March, June and September and on
the Termination Date, commencing December 31, 1996, a quarterly credit fee equal
to 0.125% per annum of the average unused portion of the Commitment Amount. The
commitment fees payable pursuant to (a) and (b) shall be pro-rated in the event
that the remaining term of the Loan is less than one (1) year.
(b) Section 9.3 of the Loan Agreement is hereby amended to provide
notices to the Bank shall be given to :
SouthTrust Bank of Alabama, National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attention: Florida Corporate Office
(c) Exhibit "A" and Exhibit "B are hereby deleted in their entirety and
Exhibit "A" , Exhibit "B" , and Exhibit "C" attached hereto shall be substituted
in lieu thereof.
SECTION 3. Conditions. The effectiveness of this First Amendment shall
be conditioned upon delivery to the Bank of the following items:
(a) Promissory Note. The Debtor shall issue and deliver to the
Bank, in exchange for the Promissory Note issued on November 18, 1996, a duly
executed Promissory Note payable to the Bank, in the amount of the Commitment as
increased hereby.
(b) Up-front Fees. The Bank shall receive on the Effective
Date an up-front commitment fee equal to $6,250 based on one-quarter of one
percent (1/4%) of the Five Million Dollars ($5,000,000) increase as calculated
annually, pro-rata for the period from the Effective Date to November 18, 1997,
the anniversary of the Commitment.
(c) Certificate of the Borrower. The Bank shall have received
a certificate dated as of the Effective Date from the Debtor, in form and
substance satisfactory to the Bank, certifying on behalf of the Debtor that all
representations and warranties of the Debtor contained in this Amendment and the
Loan Documents to the extent applicable as of the Effective Date are true and
correct in all material respects; that the Debtor is not in violation of any of
the covenants contained in the other Loan Documents; that, after giving effect
to the transactions contemplated by this Amendment, no Default or Event of
Default has occurred and is continuing; and that the Debtor has satisfied each
of the closing conditions regarding the First Amendment to be satisfied thereby.
(d) Certificate of Secretary. The Bank shall have received a
certificate of the secretary or assistant secretary of the Debtor certifying on
behalf of the Debtor that the articles of incorporation and bylaws of the Debtor
delivered to the Bank on November 18, 1996 have not been repealed, revoked,
rescinded or amended in any respect; that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Debtor, authorizing the execution, delivery and performance of this Amendment
and the continued effectiveness of the other Loan Documents; and as to the
incumbency and genuineness of the signature of each officer of the Debtor
executing Loan Documents to which the Debtor is a party.
(e) Opinion of Counsel. The Bank shall have received a
favorable opinion of counsel to the Debtor, dated as of the Effective Date and
addressed to the Bank, in form and substance satisfactory to the Bank.
(f) Additional Items. Receipt by the Bank of any other
document or instrument reasonably requested by it in connection with the
execution of this First Amendment.
SECTION 4. Limited Amendment. Except as expressly amended herein, the
Loan Agreement and each other Loan Documents shall continue to be, and shall
remain, in full force and effect. This First Amendment shall not be deemed (a)
to be a waiver of, or consent to, or a modification or amendment of, any other
term or condition of the Loan Agreement or any other Loan Documents or (b) to
prejudice any other right or rights which the Bank may now have or may have in
the future under or in connection with the Loan Agreement or the Loan Documents
or any of the instruments or agreements referred to therein, as the same may be
amended, restated or otherwise modified from time to time.
SECTION 5. Representations and Warranties. By its execution hereof, the
Debtor hereby certifies on behalf of itself that each of the representations and
warranties set forth in the Loan Agreement and the other Loan Documents is true
and correct to the extent applicable as of the date hereof as if fully set forth
herein and that as of the date hereof no Default or Event of Default has
occurred and is continuing.
SECTION 6. Expenses. The Debtor shall pay all closing costs in
connection with the preparation, execution and delivery of this First Amendment
and any related documents, including, without limitation, the reasonable
attorney's fees incurred by the Bank.
SECTION 7. Counterparts. This First Amendment may be executed in
separate counterparts, each of which when executed and delivered is an original
but all of which taken together constitute one and the same instrument.
SECTION 8. Miscellaneous. This First Amendment contains the final,
complete, and exclusive expression of the understanding between the parties
regarding the transaction contemplated by it. A waiver or modification of any
provisions of this First Amendment is valid only if the waiver or modification
is in writing and signed by each party. The failure or delay by the Bank to
exercise any right, power or privilege under this First Amendment will not
operate as a waiver of any such right, power or privilege. The titles and
headings preceding the text of the sections of this First Amendment have been
inserted solely for convenience of reference and do not affect this agreement's
meaning or effect. Debtor may not assign its interest in the Loan Agreement, as
modified by the First Amendment, without the prior written approval of the Bank,
and this First Amendment binds the successors and assigns of the parties.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date set forth above.
DEBTOR: BANK:
TANGER PROPERTIES LIMITED SOUTHTRUST BANK OF ALABAMA,
PARTNERSHIP NATIONAL ASSOCIATION
By: TANGER FACTORY OUTLET
CENTERS, INC.
By:____________________________ By:________________________________
Xxxxxxx X. Xxxxxx Name:___________________________
Chairman of the Board Title:__________________________
Chief Executive Officer
STATE OF_____________________
COUNTY OF____________________
The foregoing First Amendment was sworn to and subscribed before me
this _____ day of May, 1997, by Xxxxxxx X. Xxxxxx, who is personally known to
me, as Chairman of the Board and Chief Executive Officer of Tanger Factory
Outlet Centers, Inc., General Partner of Tanger Properties Limited Partnership.
---------------------------------
Print Name:
Notary Public, State of ______
My Commission Number is:
My Commission Expires:
Exhibit A
Commitment Amount
$20,000,000.00
Exhibit B
Form of Note
PROMISSORY NOTE
PRINCIPAL AMOUNT: $20,000,000.00 Date of Note: May 22, 1997
PROMISE TO PAY. TANGER PROPERTIES LIMITED PARTNERSHIP, a North Carolina Limited
Partnership ("Debtor") promises to pay to the order of SOUTHTRUST BANK OF
ALABAMA, NATIONAL ASSOCIATION ("Bank"), in lawful money of the United States of
America the sum of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000) or such other
or lesser amounts as may be reflected from time to time on the books and records
of Bank as evidencing the aggregate unpaid principal balance of loan advances
made to Debtor on a multiple advance basis as provided below, together with
simple interest assessed at the Prime Rate or LIBOR Adjusted Rate as selected by
Debtor pursuant to the Loan Agreement (defined below), commencing on the date
hereof and continuing until this Note is paid in full, or until default under
this Note with interest thereafter being subject to the default interest rate
provisions set forth herein. This Note is issued pursuant to, and entitled to
the benefits of, that certain Loan Agreement dated as of November 18, 1996, and
First Amendment to Loan Agreement of even date herewith between Debtor and the
Bank, as the same may be amended, modified, or restated from time to time (as so
amended, modified, or restated, the "Loan Agreement"). This Note is further
entitled to the benefits of the Guaranty, as defined in the Loan Agreement.
MULTIPLE ADVANCE LOAN. This Note contemplates multiple loan advances. Debtor is
entitled to borrow, repay, and borrow again, provided, that the aggregate of all
loan advances outstanding at any time shall not exceed the principal amount
listed above, and provided further that the provisions of the Loan Agreement
shall govern the conditions and provisions of borrowings and repayments
hereunder. Debtor agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person or (b) credited to any
of Debtor's deposit accounts with Bank in accordance with the instructions of an
authorized person. The unpaid principal balance owing on this Note at any time
may be evidenced by endorsements on this Note or by Bank's internal records,
including daily computer print-outs.
PAYMENT. Debtor will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on the Termination Date as defined in the Loan
Agreement. In addition, Debtor will pay monthly payments of accrued unpaid
interest beginning June 15, 1997 and all subsequent interest payments are due on
the same day of each month after that until this Note is paid in full. Interest
on this Note is computed on a 365/360 simple interest basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Debtor will pay Bank at the
address shown in the Loan Agreement, or at such other place as Bank may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs and late charges.
PREPAYMENT. Debtor may prepay this Note in whole or in part at any time subject
to the terms and provisions of the Loan Agreement. If Debtor prepays this Note
in full, or if Bank accelerates payment, Debtor understands that, unless
otherwise required by law, any prepaid fees or charges will not be subject to
rebate and will be earned by Bank at the time this Note is signed.
LATE CHARGE. If Debtor fails to pay any payment under this Note in full within
10 days of when due, Debtor agrees to pay Bank a late payment fee in an amount
equal to 3.000% of the unpaid amount of the payment, or U.S. $25.00, whichever
is greater, with a maximum of $200.00. Late charges will not be assessed
following declaration of default and acceleration of maturity of this Note.
DEFAULT. The following actions and/or inactions shall constitute Events of
Default under this Note: The occurrence of an Event of Default under the Loan
Agreement.
BANK'S RIGHTS UPON DEFAULT. Should any one or more Events of Default occur or
exist under this Note as provided above, Bank shall have the right, at its sole
option, to declare formally this Note to be in default and to accelerate the
maturity and insist upon immediate payment in full of the unpaid principal
balance then outstanding under this Note, plus accrued interest, together with
reasonable attorneys' fees, costs, expenses and other fees and charges as
provided in the Loan Agreement.
INTEREST AFTER DEFAULT. If Bank declares this Note to be in default, based upon
an Event of Default, Bank has the right prospectively to adjust and fix the
simple interest rate under this Note until this Note is paid in full, to
eighteen (18%) percent per annum (the "Post-Default Rate").
ATTORNEYS' FEES. If Bank refers this Note to an attorney for collection, or
files suit against Debtor to collect this Note, or if Debtor files for
bankruptcy or other relief from creditors, Debtor agrees to pay Bank's
reasonable attorneys' fees in an amount not exceeding 25.000% of the unpaid debt
then owing under this Note.
NSF CHECK CHARGES. In the event that Debtor makes any payment under this Note by
check and Debtor's check is returned to Bank unpaid due to nonsufficient funds
in the deposit account, Debtor agrees to pay Bank an additional NSF check charge
equal to $15.00.
FINANCIAL STATEMENTS. Debtor agrees to provide Bank with such financial
statements and other related information at such frequencies and in such detail
as Bank may reasonably request as set forth in the Loan Agreement.
GOVERNING LAW. Debtor agrees that this Note and the loan evidenced hereby shall
be governed under the laws of the State of Alabama.
WAIVERS. To the extent permitted by applicable law, Debtor and each guarantor of
this Note hereby waive presentment for payment, protest, notice of protest and
notice of nonpayment, and severally agree that their obligations and liabilities
to Bank hereunder shall be on a "solidary" or "joint and several" basis. Debtor
and each guarantor further severally agree that discharge or release
of any party who is or may be liable to Bank for the indebtedness represented
hereby shall not have the effect of releasing any other party or parties, who
shall remain liable to Bank. Debtor and each guarantor additionally agree the
Bank's acceptance of payment other than in accordance with the terms of this
Note, or Bank's subsequent agreement to extend or modify such repayment terms,
or Bank's failure or delay in exercising any rights or remedies granted to Bank
shall likewise not have the effect of releasing Debtor or any other party or
parties from their respective obligations to Bank, or of releasing any
collateral that directly or indirectly secures repayment hereof. In addition,
any failure or delay on the part of Bank to exercise any of the rights and
remedies granted to Bank shall not have the effect of waiving any of Bank's
rights and remedies. Any partial exercise of any rights and/or remedies granted
to Bank shall furthermore not be construed as a waiver of any other rights and
remedies; it being Debtor's intent and agreement that Bank's rights and remedies
shall be cumulative in nature. Debtor and each guarantor further agree that,
should any Event of Default occur or exist under this Note, any waiver or
forbearance on the part of Bank to pursue the rights and remedies available to
Bank, shall be binding upon Bank only to the extent that Bank specifically
agrees to any such waiver or forbearance in writing. A waiver or forbearance on
the part of Bank as to one default event shall not be construed as a waiver or
forbearance as to any other default. Debtor and each guarantor of this Note
further agree that any late charges provided for under this Note will not be
charges for deferral of time for payment and will not and are not intended to
compensate Bank for a grace or cure period, and no such deferral, grace or cure
period has or will be granted to Debtor in return for the imposition of any late
charge. Debtor recognizes that Debtor's failure to make timely payment of
amounts due under this Note will result in damages to Bank, including but not
limited to Bank's loss of the use of amounts due, and Debtor agrees that any
late charges imposed by Bank hereunder will represent reasonable compensation to
Bank for such damages.
SUCCESSORS AND ASSIGNS LIABLE. Debtor's and each guarantor's obligations and
agreements under this Note shall be binding upon Debtor's and each guarantor's
respective successors, heirs, legatees, devisees, administrators, executors and
assigns. The rights and remedies granted to Bank under this Note shall inure to
the benefit of Bank's successors and assigns, as well as to any subsequent
holder or holders of this Note.
CAPTION HEADINGS. Caption headings of the sections of this Note are for
convenience purposes only and are not to be used to interpret or to define their
provisions. In this Note, whenever the context so requires, the singular
includes the plural and the plural also includes the singular.
SEVERABILITY. If any provision of this Note is held to be invalid, illegal or
unenforceable by any court, that provision shall be deleted from this Note and
the balance of this Note shall be interpreted as if the deleted provision never
existed.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER HEREBY
WAIVES THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY BANK OR BORROWER AGAINST THE OTHER TO THE EXTENT PERMITTED BY
APPLICABLE LAW.
BORROWER:
TANGER PROPERTIES LIMITED PARTNERSHIP
By: TANGER FACTORY OUTLET CENTERS, INC.
By: ______________________________
Xxxxxxx X. Xxxxxx
Chairman of Board
Chief Executive Officer
STATE OF_________________________
COUNTY OF________________________
The foregoing Promissory Note was sworn to and subscribed before me this
day of , 1997, by Xxxxxxx X. Xxxxxx, who is
personally known to me, as Chairman of the Board and Chief Executive Officer of
Tanger Factory Outlet Centers, Inc., general partner of Tanger Properties
Limited Partnership.
__________________________________
Print Name:
Notary Public, State of___________
My Commission Number is:
My Commission Expires:
Exhibit C
Termination Date
April 30, 1999
