Exhibit 4(i)
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TANGER PROPERTIES LIMITED PARTNERSHIP
ISSUER
AND
TANGER FACTORY OUTLET CENTERS, INC.
GUARANTOR
TO
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 24, 1997
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$75,000,000 77/8% NOTES DUE 2004
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SUPPLEMENT TO INDENTURE
DATED AS OF MARCH 1, 1996, AMONG
TANGER PROPERTIES LIMITED PARTNERSHIP (AS ISSUER),
TANGER FACTORY OUTLET CENTERS, INC. (AS GUARANTOR) AND
STATE STREET BANK AND TRUST COMPANY (AS TRUSTEE)
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SECOND SUPPLEMENTAL INDENTURE, dated as of October 24, 1997, among
TANGER PROPERTIES LIMITED PARTNERSHIP, a limited partnership duly organized and
existing under the laws of North Carolina (hereinafter called the "Issuer"),
having its principal executive office located at 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, TANGER FACTORY OUTLET CENTERS, INC., a
corporation duly organized and existing under the laws of North Carolina
(hereinafter called the "Guarantor" or the "General Partner"), having its
principal executive office located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company (hereinafter called the "Trustee"), having its Corporate Trust
Office located at 0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS
WHEREAS, the Issuer and the Guarantor executed and delivered the
Indenture (the "Original Indenture"), dated as of March 1, 1996, to the Trustee
to issue from time to time for its lawful purposes debt securities evidencing
the Issuer's senior unsecured indebtedness.
WHEREAS, Section 301 of the Original Indenture provides that by means
of a supplemental indenture the Issuer may create one or more series of its debt
securities and establish the form, terms and provisions thereof.
WHEREAS, the Issuer and the Guarantor intend by this Supplemental
Indenture to (i) create a series of Issuer's debt securities, in an aggregate
principal amount equal to $75,000,000, entitled "77/8% Notes due 2004" (the
"Notes") and (ii) establish the form and the terms and provisions of the Notes.
WHEREAS, the General Partner, on behalf of the Issuer and itself, has
approved the creation of the Notes and the form, terms and provisions thereof.
WHEREAS, the consent of Holders to the execution and delivery of this
Supplemental Indenture is not required, and all other actions required to be
taken under the Original Indenture with respect to this Supplemental Indenture
have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
Section 1.001 DEFINITIONS. Capitalized terms used but not otherwise
defined in this Supplemental Indenture shall have the meanings ascribed to them
in the Original Indenture. In addition, the following terms shall have the
meanings set forth below:
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of transactions which a majority of the Disinterested Directors of the
Issuer are required to approve under the terms of the Indenture, a member of the
Board of Directors who does not have any material direct or indirect financial
interest in or with respect to such transaction or series of transactions.
"DTC" means The Depository Trust Company.
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A
attached hereto, which represents the Notes.
"INDENTURE" means the Original Indenture as supplemented by this
Second Supplemental Indenture and as further amended, modified or supplemented
with respect to the Notes pursuant to the provisions of the Original Indenture.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer, unless
such Subsidiary is an Unrestricted Subsidiary or is designated as an
Unrestricted Subsidiary pursuant to the terms of the Indenture.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors, as provided below) and (b) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither the Issuer nor any Restricted Subsidiary is directly or
indirectly liable for any Indebtedness of such Subsidiary, (ii) no default with
respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse
of time or otherwise) any holder of any other Indebtedness of the Issuer or any
other Subsidiary to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity, (iii)
neither the Issuer nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Issuer and (iv) neither the Issuer nor any
Restricted Subsidiary has any obligation (1) to subscribe for additional shares
of Capital Stock or other equity interest in such Subsidiary or (2) to maintain
or preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board
of Directors shall be evidenced to the Trustee by filing a Board Resolution with
the Trustee giving effect to such designation. The Board of Directors may
designate any Unrestricted Subsidiary as a Restricted Subsidiary if, immediately
after giving effect to such designation, there would be no Default under the
Indenture, and the Issuer could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 1010 of the Original Indenture.
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Section 1.02 CREATION OF NOTES. In accordance with Section 301 of
the Original Indenture, the Issuer hereby creates the Notes as a separate series
of its debt securities, entitled "77/8% Notes due 2004", issued pursuant to the
Indenture. The Notes shall be limited to an aggregate principal amount equal to
$75,000,000, subject to the exceptions set forth in Section 301(2) of the
Original Indenture.
Section 1.03 FORM OF NOTES. The Notes will be issued as Registered
Securities and represented by a single Global Note, without coupons, registered
in the name of DTC or its nominee, as the case may be, subject to the provisions
of the seventh paragraph of Section 305 of the Original Indenture. So long as
DTC, or its nominee, is the registered owner of the Global Note, DTC or its
nominee, as the case may be, will be considered the sole Holder of the Notes
represented by the Global Note for all purposes under the Indenture.
Section 1.04 TERMS AND PROVISIONS OF NOTES. The Notes shall be
governed by all of the terms and provisions of the Original Indenture, as
supplemented by this Second Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest
payments in respect of the Global Note will be made by the Issuer in immediately
available funds to DTC or its nominee, as the case may be, as the Holder of the
Global Note.
(b) APPLICABILITY OF GUARANTEE. The Notes will be Guaranteed
Securities pursuant to the Original Indenture, and the Guarantee endorsed on the
Global Note and the provisions set forth in Article Sixteen, Section 1601 of the
Original Indenture shall be applicable to the Notes.
(c) ADDITIONAL COVENANTS. In addition to the covenants set forth in
the Original Indenture, the Issuer and the Guarantor hereby further covenant as
follows:
(i) LIMITATION ON CONSOLIDATION, MERGER, ETC. The Issuer will not
consolidate with or merge with or into any Corporation or partnership or
sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its assets to any other Corporation or partnership unless, after
giving pro forma effect to the consolidation, merger, sale, conveyance,
transfer, lease or other disposition, the Issuer or successor entity could
incur at least $1.00 of Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1010 of the Original Indenture.
(ii) LIMITATION ON INCURRENCE OF INDEBTEDNESS. The Issuer will not
permit any Restricted Subsidiary to incur any Indebtedness other than
Permitted Indebtedness.
(iii) LIMITATION ON DISTRIBUTIONS. The Issuer will not make any
distribution, by reduction of capital or otherwise (other than
distributions payable in securities evidencing interests in the Issuer's
capital for the purpose of acquiring interests in real property or
otherwise) unless, immediately after giving pro forma effect to such
distribution, the Issuer could incur at least $1.00 of Indebtedness (other
than Permitted Indebtedness)
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pursuant to Section 1010 of the Original Indenture; provided, however, that
the foregoing limitation shall not apply to any distribution or other
action which is necessary to maintain the General Partner's status as a
REIT under the Code, if the aggregate principal amount of all outstanding
Indebtedness of the General Partner and the Issuer on a consolidated basis
at such time is less than 60% of Adjusted Total Assets.
Notwithstanding the foregoing, the Issuer will not be prohibited from
making the payment of any distribution within 30 days of the declaration
thereof if at such date of declaration such payment would have complied
with the provisions of the immediately preceding paragraph.
(iv) LIMITATION ON TRANSACTIONS WITH AFFILIATES. The Issuer will
not, and will not permit any Subsidiary to, directly or indirectly, enter
into any transaction, or series of transactions, with an Affiliate unless
(a) such transaction, or series of transactions, is on terms that are no
less favorable than those available in an arm's-length transaction with
unrelated third parties (b) with respect to any transaction, or series of
transactions, with total consideration equal to or greater than $5.0
million, the Issuer shall have delivered an officers' certificate
certifying that such transaction, or series of transactions, complies with
clause (a) above and such transaction, or series of transactions, has been
approved by a majority of the Disinterested Directors, or in the case of
transactions included in this clause (b) for which there are no
Disinterested Directors, the Issuer shall have obtained a written opinion
from a nationally recognized investment banking, appraisal or other
appropriate expert firm to the effect that such transaction, or series of
transactions, is fair to the Issuer or Subsidiary from a financial point of
view and (c) with respect to any transaction or series of transactions with
total consideration in excess of $15.0 million, the Issuer shall obtain a
written opinion from a nationally recognized investment banking, appraisal
or other appropriate expert firm as described above.
(v) LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Issuer will not, and will not permit any
Restricted Subsidiary to, create or allow to exist any encumbrance that
would restrict the ability of a Restricted Subsidiary to (a) pay dividends
on Capital Stock, (b) pay Indebtedness owed to the Issuer or any
Subsidiary, (c) make loans or advances to the Issuer or any Subsidiary, (d)
transfer any property or assets to the Issuer or any Subsidiary or (e)
guarantee any Indebtedness of the Issuer or any Subsidiary.
(vi) LIMITATION ON SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Issuer will not permit any Restricted Subsidiary to issue any Capital
Stock (other than to the Issuer or a Restricted Subsidiary) and shall not
permit any Person (other than the Issuer or a Subsidiary) to own any
Capital Stock of any Restricted Subsidiary; PROVIDED, HOWEVER, that the
foregoing shall not prohibit the issuance or sale of all, but not less than
all, of the issued and outstanding Capital Stock of any Subsidiary owned by
the Issuer or any Subsidiary in accordance with the other provisions of the
Indenture.
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(d) COVENANT DEFEASANCE; WAIVER. The provisions of Sections 402(3)
and 1012 of the Original Indenture shall apply to the additional covenants set
forth in Section 1.04(c) hereof as if such covenants were referred to therein.
ARTICLE TWO
TRUSTEE
Section 2.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
Section 3.02 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.03 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Supplemental Indenture by the Issuer and, with respect to the Guarantee,
the Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
Section 3.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 3.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and instruments entered into and, in each case,
performed in said state.
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Section 3.06 COUNTERPARTS. This Supplemental Indenture may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger Factory Outlet Centers, Inc.,
as General Partner
By:
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Name:
Title:
Attest:
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Name:
Title:
TANGER FACTORY OUTLET CENTERS, INC.
[SEAL]
By:
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Name:
Title:
Attest:
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY
[SEAL]
By:
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Name:
Title:
Attest:
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Name:
Title:
