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LOAN AGREEMENT
dated as of
October 14, 1996
Between
TANGER PROPERTIES LIMITED PARTNERSHIP
and
FIRST NATIONAL BANK OF COMMERCE
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1
LOAN AGREEMENT
THIS LOAN AGREEMENT dated as of October 14, 1996, 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"), FIRST NATIONAL BANK OF COMMERCE (sometimes herein referred to as
"First NBC"), a national banking association (the "Agent"), as Agent for Banks,
and FIRST NATIONAL BANK OF COMMERCE, a national banking association and the
other lenders listed on Exhibit "A" attached hereto, as amended from time to
time (each a "Bank" and collectively the "Banks").
W I T N E S S E T H:
WHEREAS, Debtor applied for the issuance of a commitment for a line of
credit, and Banks have agreed to provide such credit facility to Debtor subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereunder set
forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Defined Terms. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Adjusted Unencumbered Assets" shall mean 100% of Debtor's
non-operating cash and cash equivalents which are not subject
to any lien, or security interest, plus 60% of Debtor's income
earning Undepreciated Real Estate Assets which are not subject
to any Encumbrance.
"Affiliate" of any specified Person means (i) any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person
or (ii) any other Person that owns, directly or indirectly,
10% or more of such specified Person's Voting Stock or any
executive officer, director, manager or trustee of any such
specified Person or other Person or, with respect to any
natural person, any person having a relationship with such
person by blood, marriage or adoption not more remote than
first cousin. For the purposes of this definition, "control",
when used with respect to any specified Person, means the
power to direct
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the management and policies of such Person, directly or
indirectly, whether through the ownership of Voting Stock, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Fee" shall mean an annual sum as set forth on Exhibit
"B" hereto, as amended or modified from time to time.
"Agent" shall mean First National Bank of Commerce, a national
banking association, and its successors as agent for the Banks
hereunder.
"Agreement" shall mean this Loan Agreement, as the same may
from time to time be amended, modified or supplemented and in
effect.
"Applicable Increment" shall mean, with respect to the
applicable Interest Period, the number of basis points to be
added to the LIBOR Rate to calculate the LIBOR Adjusted Rate,
as determined under Section 2.14.
"Applicable Percentage" shall mean, as to each Bank, the
percentage obtained by dividing (a) the sum specified in the
Commitment of that Bank by (b) the Commitment Amount, and
multiplying the resulting quotient by 100, as such percentage
may be adjusted by assignments permitted by Section 9.8 or by
amendments to this Agreement to change such Bank's Commitment
or the aggregate of all Banks' Commitments. The initial
Applicable Percentage of each Bank is set forth opposite the
name of that Bank on Exhibit "A".
"Banks" shall mean the banks and other financial institutions
now or hereafter parties to this Agreement for whom Agent
serves as Agent in accordance with the terms of this
Agreement.
"Business Day" means a day other than a Saturday, Sunday or
legal holiday for commercial banks under the laws of the State
of Louisiana or a day on which national banks are authorized
to be closed in New Orleans, Louisiana, and if such day
relates to a Conversion to, or Continuation of, or Advance
subject to, the LIBOR Adjusted Rate, shall also be a day on
which dealings in Dollar deposits are carried out in the
interbank market selected by Agent for purposes of setting the
LIBOR Rate.
"Centers" shall mean Tanger Factory Outlet Centers, Inc., a
North Carolina corporation, the sole general partner of
Debtor.
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"Commitment" shall mean the agreement by each Bank to Debtor
to make Loans in accordance with the provisions of Article II
hereof in an aggregate principal amount not to exceed such
Bank's Applicable Percentage of the Commitment Amount, and the
term "Commitments" shall mean the aggregate amount specified
in the Commitment of all Banks.
"Commitment Amount" shall mean the amount not less than
$15,000,000.00 as set forth on Exhibit "C" hereto, as amended
from time to time.
"Continue", "Continuation" and "Continued" shall mean the
continuation pursuant to Section 2.7 hereof of the LIBOR
Adjusted Rate or the Prime Rate accruing on the Notes from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall mean a
conversion pursuant to Section 2.7 hereof of the interest rate
then accruing on the Notes to the LIBOR Adjusted Rate or to
the Prime Rate.
"Debt" shall mean 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 Encumbrance 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 which would be reflected on a consolidated
balance sheet as a capitalized 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 also includes, to the
extent not otherwise included, any obligation to be liable
for, or to pay, as obligor, guarantor or otherwise (other than
for purposes of collection in the ordinary course of
business), indebtedness of another person.
"Debt Service" shall mean regularly scheduled principal and
interest payments, exclusive of balloon maturity payments on
all Liabilities, and the current portion of all long-term
leases or lease agreements required to be capitalized under
GAAP.
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"Debt Service Coverage Ratio" as calculated quarterly for the
most recent four quarters then ending shall mean (a) EBITDA
divided by (b) Debt Service.
"Debtor" shall mean Tanger Properties Limited Partnership, a
North Carolina limited partnership, together with its
successors and assigns and together with its Subsidiaries from
time to time.
"Default" shall mean an event which with the giving of notice
or the lapse of time (or both) would constitute an Event of
Default hereunder.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean Debtor's income before minority interest
plus interest, taxes, depreciation, and amortization, all
determined in accordance with GAAP consistently applied,
calculated quarterly on a rolling four-quarters basis
"Encumbrances" shall mean individually, collectively and
interchangeably any and all presently existing and/or future
mortgages or liens (other than those that are fully bonded by
deposit of cash or by commercial surety reasonably acceptable
to Agent) or similar charges, contractual and/or statutory
charges on real property.
"Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"),
the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 49 U.S.C. Section 6901, et
seq., any similar laws or laws relating to the environment
enacted in any State in which Debtor owns real properties, and
any applicable Governmental Requirements or regulations
adopted pursuant to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Liabilities" shall have the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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"Eurodollar Rate Reserve Percentage" of each Bank for any
Interest Period means the reserve percentage applicable during
such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement)
for member banks of the Federal Reserve System with deposits
exceeding $1,000,000,000 with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a
term equal to such Interest Period.
"Event of Default" shall mean individually, collectively and
interchangeably any of the Events of Default set forth below
in Section 7.1 hereof.
"Funds from Operations" for any period shall mean the Net
Income of the Debtor and its Subsidiaries for such period
before giving effect to depreciation and amortization uniquely
significant to real estate, gains or losses from extraordinary
items, gains or losses on sales of real estate, gains or
losses with respect to the disposition of investments in
marketable securities and any provision/benefit for income
taxes for such period, plus the allocable portion, based on
the Debtor's ownership interest, of funds from operations of
unconsolidated joint ventures, all determined on a consistent
basis.
"GAAP" shall mean, at any time, accounting principles
generally accepted in the United States as then in effect.
"Governmental Requirement" shall mean any applicable state,
federal or local law, statute, ordinance, code, rule,
regulation, order or decree.
"Guaranty" shall mean an unconditional continuing guaranty of
the Indebtedness executed by Centers.
"Hazardous Materials" shall mean
(i) any "hazardous waste" in quantities as defined by either
the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
ss. 6901 et seq.), or any similar laws or laws relating to the
environment enacted in any State in which Debtor owns real
property, as amended from time to time, and regulations
promulgated thereunder;
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(ii) any "hazardous substance" in quantities as defined by
either the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. ss. 9601 et seq.)
("CERCLA") or any similar laws or laws relating to the
environment enacted in any State in which Debtor owns real
property, as amended from time to time, and regulations
promulgated thereunder;
(iii) any "regulated substance" as that term is defined
under the Resource Conservation and Recovery Act, 42 U.S.C.
ss. 6991 et seq.;
(iv) asbestos in violation of Governmental Requirement;
(v) polychlorinated biphenyls in violation of Governmental
Requirement;
(vi) any substance the presence of which on Debtor's
properties is prohibited by Governmental Requirement from time
to time in force and effect relating to such properties; and
(vii) any other substance which by any such rule or
regulation requires special handling in its collection,
storage, treatment or disposal.
"Hazardous Materials Contamination" shall mean the
contamination in quantities in violation of any applicable
Governmental Requirement (whether presently existing or
hereafter occurring) in, on, or under any of the Debtor's
properties, including the improvements thereon, by Hazardous
Materials.
"Indebtedness" shall mean, at any time, the indebtedness of
Debtor evidenced by the Notes in principal, interest, costs,
expenses and reasonable attorneys' fees and all other fees and
charges, together with all other indebtedness and costs and
expenses for which Debtor is responsible under this Agreement
or any of the Related Documents.
"Interest Period" shall mean in connection with each Advance
for which the LIBOR Adjusted Rate is applicable, a period of
one, two, three, four or six months as selected by the Debtor
in the notice of borrowing, or to Continue, or to Convert for
such Advance subject to the following:
(i) the initial Interest Period for any Advance shall
commence on
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the date of such Advance;
(ii) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if
any Interest Period in respect of an Advance would otherwise
expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding
Business Day;
(iii) any Interest Period in respect of an Advance which
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall,
subject to clause (iv) below, end on the last Business Day of
a calendar month;
(iv) no Interest Period shall extend beyond the Termination
Date.
"LIBOR Event" shall have the meaning specified in Section
2.8(a) hereof.
"LIBOR Adjusted Rate" shall mean with respect to the
applicable Interest Period, the per annum rate of interest
equal to the Applicable Increment added to the LIBOR Rate.
"LIBOR Rate" shall mean with respect to the applicable
Interest Period, the annual rate of interest (rounded upward
to the nearest whole multiple of 1/100 of 1%, if such rate is
not such a multiple) determined by Agent, at or before 10:00
a.m. New Orleans time on the first day of such Interest
Period, to be the annual rate of interest at which deposits of
Dollars are offered by prime banks in whatever London
interbank market may be selected by Agent in its sole
discretion, acting in good faith, at the time of determination
and in accordance with the then existing practice in such
market for delivery on the first day of such Interest Period
in immediately available funds and having a maturity equal to
such Interest Period in an amount equal (or as nearly equal as
may be) to the applicable Loans.
"LIBOR Rate Loans" shall mean the portion of the Loans bearing
interest calculated on the basis of the LIBOR Adjusted Rate.
"Loans" shall mean collectively and individually the loans
made by Banks to Debtor pursuant to this Agreement.
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"Majority Banks" shall mean Banks whose combined Applicable
Percentages is greater than or equal to fifty percent (50%) of
the aggregate amount of Commitments.
"Material Adverse Change" shall mean, with respect to Debtor,
an event which causes a material adverse effect on the
business, assets, operations or condition (financial or
otherwise) of Debtor.
"Net Income" for any period shall mean the amount of
consolidated net income (or loss) of the Debtor and its
Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Net Operating Income" for any period shall mean Net Income of
the Debtor (i) plus amounts which have been deducted for (a)
interest on Debt of the Debtor (b) provision for taxes of the
Debtor based on income, (c) amortization of debt discount, (d)
depreciation and amortization, (e) the effect of any noncash
charge resulting from a change in accounting principles in
determining Net Income for such period, (f) amortization of
deferred charges and (g) provisions for or realized losses on
properties and (ii) less amounts which have been included for
gains on properties.
"Net Worth" shall mean, at any time, the sum obtained by
subtracting Total Liabilities from Total Assets.
"Notes" shall mean those certain promissory notes made by
Debtor evidencing the Loans, in the form of Exhibit "D"
hereto, together with any and all extensions, renewals,
modifications and substitutions therefor.
"Person" means any individual, partnership, firm, corporation,
association, joint venture, joint stock company, trust,
unincorporated organization or other entity, or any
governmental or political subdivision or agency, department,
or instrumentality thereof.
"Prime Rate" shall mean the per annum rate of interest equal
to 1/4% less than the annual rate of interest established from
time to time by Citibank, N.A. as its "prime" or "base"
lending rate, whether or not that rate is published, and which
is not necessarily the lowest rate charged by such bank, such
rate to be adjusted automatically on and as of the effective
date of any change in such Prime Rate. In the event Citibank,
N.A. fails or ceases to publish a prime or base rate or is
dissolved, merged, or otherwise is not in existence, Agent
shall select another large bank in New York City as the basis
for computation of
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the Prime Rate.
"Prime Rate Loans" shall mean the portion of the Loans bearing
interest calculated on the basis of the Prime Rate.
"Related Documents" shall mean and include individually,
collectively, interchangeably and without limitation the
Notes, the Guaranty, and all promissory notes, credit
agreements, loan agreements, guaranties, and all other
instruments and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
"Secured Debt" shall mean any Debt secured by any Encumbrance
or by any security interest, lien, privilege, or charge on any
personal property.
"Subsidiaries" shall mean at any date with respect to any
Person all the corporations of which such Person at such date,
directly or indirectly, owns 50% or more of the outstanding
capital stock (excluding directors' qualifying shares) and all
partnerships, limited liability companies, or other entities
of which such Person at such date, directly or indirectly,
owns 50% or more of the partnership, limited liability
company, or other equity interests.
"TL/TA Ratio" shall mean, at any time, the ratio of Total
Liabilities to Total Assets.
"Termination Date" shall mean the earlier to occur of (i) the
date set forth on Exhibit "E" hereto, as amended from time to
time, or (ii) the date of termination of the Loans pursuant to
Article VII hereof.
"Total Assets" shall mean, at any date, the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of
Debtor determined in accordance with GAAP (but excluding
intangibles and accounts receivables).
"Total Committed Unsecured Debt" shall mean, at any time, all
of Debtor's unsecured Debt that is outstanding and all Debt
which Debtor has the option (whether or not such option is
subject to the satisfaction of conditions) to borrow or
request be advanced.
"Total Liabilities" shall mean, at any date, the sum, after
eliminating inter-company items, of all liabilities
(including, without limitation, deferred taxes) other than
minority interests, of Debtor at such date,
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determined in accordance with GAAP consistently applied.
"Undepreciated Real Estate Assets" as of any date shall mean
the cost (original cost plus capital improvements) of real
estate assets of the Debtor on such date, before depreciation
and amortization determined in accordance with GAAP.
"Voting Stock" means stock having general voting power under
ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees (or persons
performing similar functions), provided that stock that
carries only the right to vote conditionally on the happening
of an event shall not be considered Voting Stock.
Section 1.2. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
GAAP.
ARTICLE II
LOANS
Section 2.1. The Commitments. Subject to the terms and conditions of
this Agreement, each Bank agrees, severally but not jointly, to extend credit to
Debtor during the period from the date hereof until the Termination Date by
making Loans (each funding of which is herein referred to as an "Advance", and
collectively as "Advances") pro rata in accordance with such Bank's Applicable
Percentage to Debtor from time to time during the period from the date hereof to
and including the Termination Date; provided, that in the event, at any time,
and from time to time, the sum of outstanding Loans exceeds the Commitment
Amount, Debtor shall prepay the Loans by such an amount to cause the sum of the
Loans outstanding to equal the Commitment Amount. Within the limits of the
Commitments to Debtor hereunder and subject to the terms and conditions of this
Agreement, Debtor may borrow Advances, repay Advances, and reborrow Advances,
and each Bank shall only be obligated to lend Debtor an amount which will not
cause its Applicable Percentage of the Commitment Amount to be exceeded and
which will not cause all Loans to exceed the Commitment Amount.
Section 2.2. The Loans. Debtor's obligation to repay the Loans made by
Banks shall be evidenced by the Notes, one of which shall be payable to the
order of each Bank in the principal sum of its Applicable Percentage of the
Commitment Amount, with a final maturity of the Termination Date and bearing
interest at the applicable LIBOR Adjusted Rate, or the Prime Rate, as set forth
herein as in effect from time to time, and which shall be substantially in the
form of Exhibit "D" hereto.
Section 2.3. Interest. Interest on the Notes shall be payable in
arrears on the fifteenth day of
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each calendar month commencing November 15, 1996, and on the Termination Date.
Interest on the Notes will be computed on a 365/360 simple interest basis.
Interest shall accrue on the unpaid principal amount of the Loans for the period
from and including the Closing Date to the date the Loans shall be paid in full
at the following rates per annum:
(a) during each period a portion of the Loan is subject
to a Prime Rate election by Debtor, at the Prime Rate
from time to time in effect computed on the
outstanding balance of such portion;
(b) during each period a portion of the Loan is subject
to a LIBOR Rate election by Debtor, the LIBOR
Adjusted Rate for such Interest Period computed on
the outstanding balance of such portion.
Notwithstanding the foregoing, Debtor will pay to Banks interest at the
applicable Post-Default Rate as defined in the Notes on any principal of the
Loans, or on any other amount payable by Debtor hereunder to Banks, which shall
not be paid in full when due (whether at stated maturity, by acceleration or
otherwise), for the period from and including the due date thereof to the date
the same is paid in full, which interest shall be due and payable on demand.
Section 2.4. Principal Repayment. Principal and all accrued and unpaid
interest shall be payable on the Termination Date; provided, however, in the
event at any time the aggregate outstanding principal amounts of the Loans to
Debtor causes the Commitment Amount to be exceeded, Debtor shall immediately
prepay the Notes in an amount necessary to cause the aggregate principal amount
of its unpaid Loans to not exceed equal the Commitment Amount.
Section 2.5. Apportionment of Payments.
(a) Aggregate principal and interest payments on Loans shall
be apportioned among all outstanding Loans, in each case proportionately to each
Bank's respective Applicable Percentage. Agent shall promptly distribute to each
Bank, at its address set forth opposite its name on Exhibit "A" hereto or at
such other address as such Bank may request in writing, its Applicable
Percentage of all payments received by Agent and the commitment fees and credit
fees of such Bank when received by Agent pursuant to Section 2.13.
(b) If a Bank shall obtain payment of any principal of or
interest on any Loans made by it under this Agreement, or on other Indebtedness
then due to Bank hereunder, through the exercise of any right of set-off,
banker's lien, counterclaim or similar right, or otherwise, (it being understood
that no such right is granted herein) it shall promptly purchase from the other
Banks participations in the Loans made or other Indebtedness held by the other
Banks in such amounts, and make such other adjustments from time to time as
shall be equitable to the end that all the Banks shall share the benefit of such
payment (net of any expenses which may be incurred by such Bank in obtaining or
preserving such benefit) pro rata, based on said
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Bank's Applicable Percentage in accordance with the unpaid principal and
interest on the Indebtedness then due to each of them. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Debtor agrees, to the fullest extent it may effectively do so
under applicable law, that any Bank so purchasing a participation in the Loans
made or other Indebtedness held by other Banks may exercise all rights with
respect to such participation as fully as if such Bank were a direct holder of
Loans or other Indebtedness in the amount of such participation. Nothing
contained herein shall require any Bank to exercise any such right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any obligation of the Debtor other than the
Indebtedness.
Section 2.6. Additional Interest. Debtor shall pay to Banks, so long as
Banks shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurodollar Liabilities, additional interest on
the unpaid principal amount of the LIBOR Rate Loans which shall be determined
based on reserves actually maintained by Banks pursuant to the requirements
imposed by Regulation D of such Board of Governors with respect to Eurocurrency
Liabilities, for so long as any LIBOR Rate Loans are outstanding at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the LIBOR Rate for the Interest Period in effect from (ii) the rate obtained by
dividing such LIBOR Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of Banks for such Interest Period, payable promptly, and in
any event within 10 Business Days after Debtor receives notice of such
additional interest from Agent as provided below. Such additional interest
payable to Banks shall be determined by Agent after the end of each Interest
Period and Agent shall notify Debtor of such additional amount (such notice to
include the calculation of such additional interest, which calculation shall be
conclusive in the absence of error). Notwithstanding the above, such additional
interest shall be no greater than the amount which would be payable if Agent
were the sole participant in the Loans for the Commitment Amount.
Section 2.7. Rate and Interest Period Elections. Not later than 3:00
p.m. (New Orleans time) on the day before the date of Debtor's request for an
Advance, Debtor shall provide Agent with a written notice specifying the Prime
Rate or the LIBOR Adjusted Rate as the applicable interest rate to accrue under
portions of the Loan in an amount not less than that set forth on Exhibit "F".
In the event Debtor chooses the LIBOR Adjusted Rate it shall also designate the
applicable Interest Period of one, two, three, four, or six months. If for any
reason Debtor fails to select an interest rate for all or any portion of the
Loan or fails to continue the LIBOR Adjusted Rate beyond the Interest Period
selected, such portion or portions shall bear interest at the Prime Rate from
time to time in effect.
From time to time, Debtor shall have the right to convert to the LIBOR
Adjusted Rate, provided (i) Debtor may not select an Interest Period having a
maturity as of the date of Conversion later than the Termination Date, and (ii)
the LIBOR Adjusted Rate shall remain in effect, and may not be Converted, until
the end of the applicable Interest Period selected.
Notices by Debtor to Agent of Conversions and Continuations and of the
duration of
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subsequent Interest Periods shall be irrevocable and binding on Debtor and
shall be effective only
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if received by Agent not later than 3:00 p.m. (New Orleans time) on the day
before the first day of such Interest Period. Each such notice of Conversion or
Continuation shall specify (a) the dollar amount of the portion of the Loan
(which shall be not less than the applicable minimum set forth on Exhibit "F"
hereto) to be Converted or Continued; (b) whether the applicable interest rate
on such portion of the Loan is to be Converted or Continued to the Prime Rate or
the LIBOR Adjusted Rate; (c) the effective date of Conversion or Continuation
(which shall be a Business Day); and (d) the Interest Period, if the LIBOR
Adjusted Rate is chosen. In the event that Debtor fails to properly or timely
Convert or Continue, such portion of the Loan will be automatically Converted to
the Prime Rate at the end of the then current Interest Period (if LIBOR Adjusted
Rate is in effect). Notwithstanding the above, so long as First NBC is the sole
Bank, requests for Advances made no later than 10:00 a.m. (New Orleans time)
shall be funded on the same Business Day, provided the Prime Rate election is
made with respect to such Advances.
Section 2.8. Change in Law; Increased Costs; Etc.
(a) Change of Law. If at any time Agent determines in good faith
(which ------------- determination shall be conclusive
absent manifest error) that any change in any applicable
law, rule or regulation or in the interpretation,
application or administration thereof makes it unlawful, or
any Governmental Authority asserts that it is unlawful, for
Banks to fund or maintain the Loans at the LIBOR Adjusted
Rate (any of the foregoing determinations being a "LIBOR
Event"), then the obligation of Banks hereunder to fund or
maintain LIBOR Rate Loans shall be suspended as long as such
LIBOR Event shall continue. Upon the occurrence of any LIBOR
Event, and at any time thereafter so long as such LIBOR
Event shall continue, Agent may exercise its aforesaid
option by giving written notice thereof to Debtor, and the
applicable portions of the Loan shall thereafter bear
interest at the Prime Rate.
(b) Increased Costs.
(1) If, after the date hereof, due to either (i) the
introduction of or any change in or in the interpretation of
any law of regulation or (ii) the compliance with any
guideline or request from any Governmental Authority
(whether or not having the force of law), or (iii) other
acts or occurrences, there shall be any increase in the cost
to Banks of agreeing to fund or maintain the Loans at the
LIBOR Adjusted Rate (except to the extent already included
in the determination of the applicable LIBOR Adjusted Rate)
then Debtor shall from time to time, upon demand by Agent,
pay Agent such additional amounts sufficient to compensate
Banks for such increased cost (provided, however, such
amount shall not be greater than the amount which would be
due if Agent were the sole Bank) and may make an alternate
Interest election for the portion of the Loan then subject
to the LIBOR Adjusted Rate, to be effective at the
termination of the then current Interest Period. Any
obligation of any Bank hereunder
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to fund or continue the LIBOR Adjusted Rate
applicable to any portion of the Loans shall be
suspended as long as the events giving rise to such
increased costs shall continue, and the applicable
portion of the Loans shall thereafter bear interest
at the Prime Rate. Any request for payment under this
Section 2.8(b) will be submitted to Debtor by Agent
identifying with reasonable specificity the basis for
and the amount of such interest cost, which
information shall be conclusive and binding for all
purposes, absent manifest error.
(2) Banks shall use their best efforts (consistent
with its internal policies and legal and regulatory
restrictions) to avoid or minimize any additional
amounts that otherwise would be payable pursuant to
this Section 2.8(b); provided that no such change or
action shall be required to be made or taken if, in
the reasonable judgment of Agent, such change would
be disadvantageous to Banks.
(c) Funding Losses.
(1) Debtor will indemnify Banks against, and
reimburse Banks on demand for, any net loss, cost or
expense incurred or sustained by Banks (including,
without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits
or other funds acquired by Banks to fund or maintain
the Loans at the LIBOR Adjusted Rate) as a result of
any payment, prepayment by Debtor (whether authorized
or required hereunder) of all or a portion of the
LIBOR Rate Loans on a day other than the last day of
an Interest Period.
(2) In connection with any demand for payment under
this Section 2.8(c), Agent shall deliver to Debtor a
statement reasonably setting forth the amount and
manner of determining such net loss, cost or expense,
which statement shall be conclusive and binding for
all purposes, absent error.
Section 2.9. Manner and Notice of Borrowing Under the Commitments.
Requests for Advances under the Commitments may be made by Debtor in person, in
writing or through telephone calls to Agent and such requests shall be fully
authorized by Debtor if made by any one of the persons designated by Debtor in
writing to Agent. Debtor shall promptly confirm in writing all requests made in
person or by telephone; provided, however, that failure to do so shall not
relieve Debtor of the obligation to repay such Advance. Agent shall have the
right, but not the obligation, to verify any telephone requests by calling the
person who made the request at the telephone number designated by each of Debtor
in writing to Agent. Requests for Advances must be in a minimum amount as set
forth on Exhibit "F" hereto, and be received by not later than 3:00 p.m. New
Orleans time on the day before the proposed Advance. Promptly after receipt of
such request by Agent, Agent shall notify each Bank of the proposed borrowing.
Each Bank shall make the amount of its Applicable Percentage of the Advance
requested available to Agent not later than 10:00 a.m. (New Orleans time) the
date of the requested Advance, in same day Dollars,
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at the Agent's main office at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx. Not
later than 3:00 p.m. (New Orleans time) on the date of the proposed Advance,
assuming all conditions of this Agreement for such Advance has been satisfied,
Agent will (a) fund such Advance in the case of (y) below, or (b) commence to
wire transfer such Advance in the case of (z) below. The amount thereof shall
(y) be credited by Agent to the checking account maintained in the name of
Debtor with Agent and the credit advice resulting therefrom shall be mailed to
Debtor or (z) at the request of Debtor, Agent shall wire transfer the amount of
the Advance as designated in writing from time to time by Debtor. Agent's copy
of such credit advice indicating such deposit to the account of Debtor or
Agent's receipt of a federal funds wire transfer number shall be deemed
conclusive evidence of Debtor's indebtedness to Banks in connection with such
borrowing. The aggregate outstanding amount of principal and interest due by
Debtor at any given time under the Commitments shall be and constitute the
indebtedness of Debtor to the Banks under the Notes. When each Advance is made
by Banks to Debtor hereunder, Debtor shall be deemed to have renewed and
reissued its Notes for the amount of the Advance plus all amounts due by Debtor
to Banks under its Commitment immediately prior to such Advance.
Section 2.10. Non-Receipt of Funds by the Agent. Unless Agent shall
have been notified by the Debtor prior to the date on which the Debtor is to
make a payment to the Agent for the account of one or more of the Banks, (such
payment being herein called the "Required Payment"), that the Debtor does not
intend to make the Required Payment to the Agent, the Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption (but
shall not be obligated to) make the amount thereof available to the intended
recipient on such date and, if the Debtor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on demand, pay to the
Agent the amount made available by Agent together with interest thereon, for
each day commencing on the date such amount was so made available by Agent until
the date such amount is paid to Agent, at the Prime Rate.
Section 2.11. Several Obligations. First NBC is obligated to make Loans
to Debtor in the maximum amount of $15,000,000.00, subject to the terms and
conditions hereof. The failure of any Bank to make any Loan in excess of
$15,000,000.00 to be made by it on the date specified therefor shall not relieve
any other Bank of its obligation to make its Loan on such date, but neither the
Agent nor any Bank shall be responsible or liable for the failure of any other
Bank to make a Loan to be made by such other Bank. Notwithstanding anything
contained herein to the contrary, (a) no Bank shall be required to make or
maintain Loans at any time outstanding if, as a result, the total Loans made by
such Bank shall exceed such Bank's Applicable Percentage of the Commitment
Amount and (b) if a Bank fails to make a Loan as and when required hereunder,
then upon such subsequent event which would otherwise result in funds being
repaid to the defaulting Bank, the amount which would have been paid to the
defaulting Bank shall be divided among the non-defaulting Banks ratably
according to their respective Applicable Percentages until the Indebtedness of
each Bank (including the defaulting Bank) is equal to such Bank's Applicable
Percentage of the total Loans.
Section 2.12. Additional Cost of Loans. If any legislative authority, other
governmental authority, court, central bank or any other authority to which any
Bank is subject, shall at any time impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, capital adequacy or similar
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requirement against assets of, deposits with or for the account of, or credit
extended by, such Bank, or shall impose on any Bank any law, regulation, rule,
directive, instruction, guideline, requirement, judgment, decision or condition
of any type or kind whatsoever affecting the Indebtedness or the obligation of
Banks to make a Loan, and the result of any of the foregoing is to increase,
directly or indirectly, the cost to any Bank of making or maintaining the
Indebtedness to Debtor, or to reduce, directly or indirectly, the amount of the
sum received or receivable by any Bank under this Agreement or under the Notes,
then Debtor shall become obligated to each such Bank for all such amounts as
will compensate such Bank for such increased cost or reduction in revenues
incurred as a result thereof provided, however, the amount of such obligation
shall not be greater than the amount that would be payable if Agent were the
sole Bank. Each Bank will promptly notify Agent, and Agent will promptly notify
Debtor of any event of which it has knowledge, occurring after the date hereof,
which will entitle any Bank to compensation pursuant to this Section 2.12. A
certificate of Agent claiming compensation under this Section 2.12 and setting
forth the additional amount or amounts to be paid to it hereunder and the
reasons therefor shall be conclusive in the absence of error. Thereafter, Debtor
shall pay to the Agent, upon demand from time to time any amounts necessary to
compensate the applicable Bank for such increased cost of reduction in revenues
incurred as a result of any such events. In the event that Debtor cancels this
Agreement and the Commitment because it believes such costs to be excessive and
repays the Indebtedness in full prior to the due date of the next annual
commitment fee, Debtor shall not be liable for such additional commitment fee;
provided, in no event shall Debtor be entitled to a refund of any amounts
previously paid as commitment fee.
Section 2.13. Commitment Fee; Credit Fee; Agency Fee. Debtor agrees to
pay to Agent, for the pro rata benefit of the Banks (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, and (b) in arrears due ten days after receipt of
invoice from Agent prepared as of the last day of December, March, June, and
September, commencing December 31, 1996, a quarterly credit fee equal to 0.125%
per annum of the average unused portion of the Commitment Amount. Debtor further
agrees to pay to Agent on the date hereof and on each anniversary of the date
hereof, in advance, the Agency Fee and on any date on which an additional Bank
is added a pro-rata portion of any increase in the Agency Fee for the remainder
of such annual period.
Section 2.14. Calculation of the Applicable Increment. The Applicable
Increment shall be determined for each Interest Period on the first day of such
Interest Period as follows:
If Debtor's TL/TA ratio is greater than or equal to 0.5, the Applicable
Increment shall be 175 basis points;
If Debtor's TL/TA ratio is less than 0.5 but equal to or greater than 0.4,
the Applicable Increment shall be 165 basis points;
If Debtor's TL/TA ratio is less than 0.4, the Applicable Increment shall be
150 basis points.
Debtor's TL/TA ratio shall be determined as of the most recently reported
Financial Statement
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provided pursuant to Section 5.1 hereof.
Section 2.15. Debtor's Right to Terminate. At any time Debtor may
prepay the Loans in full and, at Debtor's option, terminate the Loans and this
Agreement by written notice to Agent without termination fee or penalty (other
than any payments due as a result of prepaying a LIBOR Rate Loan prior to the
termination of the then applicable Interest Period) or obligation to pay further
amounts of any kind to Agent or Banks.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to Loans. The obligation of any Bank to
make any Loan hereunder shall be subject to the satisfaction and the continued
satisfaction of the following conditions precedent:
(a) Debtor shall have executed and delivered to Agent this
Agreement, the Notes, the Guaranty and all other documents
required by this Agreement;
(b) The representations and warranties of Debtor as set forth
herein, or any Loan Document furnished to Agent in connection
herewith, shall be and remain true and correct (except for any
changes permitted under this Agreement or as to which Agent
has previously consented in writing);
(c) Agent shall have received as of the execution of this
Agreement a favorable legal opinion of general counsel to
Debtor and Centers in form, scope and substance satisfactory
to Agent;
(d) Agent shall have received certified resolutions of the general
partner of Debtor authorizing the execution of all documents
contemplated hereby;
(e) Agent shall have received certified resolutions of Centers
authorizing the execution of the Guaranty;
(f) Agent shall have received all fees, charges and expenses which
are due and payable as specified in this Agreement;
(g) No Default or Event of Default shall exist or shall result
from the making of a Loan;
(h) Debtor shall have provided Agent with all financial
statements, reports and certificates required by this
Agreement;
(i) Agent's counsel shall have reviewed the partnership agreement
of Debtor and shall be satisfied with the validity, due
authorization and enforceability of all Loan Documents;
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(j) Agent shall have received the commitment fee for the first
twelve months of the Loans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Debtor represents and warrants to Agent and to the Banks as follows:
Section 4.1. Authority. Debtor is a North Carolina limited partnership,
duly formed, validly existing and in good standing under the laws of the State
of North Carolina and is duly qualified and in good standing as a foreign
corporation in all jurisdictions where the failure to qualify would have an
adverse effect upon the ability of Debtor to perform its obligations under this
Agreement and all Related Documents. Debtor has the power to enter into this
Agreement and the Related Documents and to issue the Notes. Debtor has the
partnership power to perform its obligations hereunder and under the Related
Documents. The making and performance by Debtor of this Agreement and the
Related Documents have been duly authorized by all necessary partnership action,
and do not and will not violate any provision of any law, rule, regulation,
order, writ, judgment, decree, determination or award presently in effect having
applicability to Debtor or the agreement of limited partnership of Debtor. The
making and performance by Debtor of this Agreement and the Related Documents to
which it is a party do not and will not result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement
or instrument to which Debtor is a party or by which Debtor may be bound or
affected, or result in, or require, the creation or imposition of any mortgage,
deed of trust, pledge, lien, security interest or other charge or encumbrance of
any nature (other than as contemplated by the Related Documents) upon or with
respect to any of the properties now owned or hereafter acquired by Debtor, and
Debtor is not in default under or in violation of any such order, writ,
judgment, decree, determination, award, indenture, agreement or instrument. Each
of this Agreement and the Related Documents to which Debtor is a party
constitute legal, valid and binding obligations of Debtor, enforceable in
accordance with their terms.
Section 4.2. Financial Statements. The balance sheet of Debtor as of
the date thereof, and the related statements of income and retained earnings for
the year then ended, copies of which have been delivered to Agent, are complete
and correct and fairly present the financial condition of Debtor as of the date
thereof. Said financial statements were prepared in conformity with GAAP applied
on a basis consistent with the preceding year. No Material Adverse Change has
occurred since said date in the financial position or in the result of
operations of Debtor in its business taken as a whole.
Section 4.3. Litigation. Other than as has been disclosed previously to
Agent in writing, there are no legal actions, suits or proceedings pending or
threatened against or affecting Debtor or any of its properties before any court
or administrative agency (federal, state or local), which, if determined
adversely to Debtor would constitute a Material Adverse Change to it, and there
are no judgments or decrees affecting Debtor or its properties which are or may
become an Encumbrance against such properties.
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Section 4.4. Approvals. No authorization, consent, approval or formal
exemption of, nor any filing or registration with, any governmental body or
regulatory authority (federal, state or local), and no vote, consent or approval
of the shareholders of Debtor is or will be required in connection with the
execution and delivery by Debtor of the Agreement, the Notes, or the Related
Documents or the performance by Debtor of its obligations hereunder and under
the Notes and the Related Documents.
Section 4.5. Licenses. Debtor possesses adequate franchises, licenses
and permits to own its properties and to carry on its business as presently
conducted.
Section 4.6. Adverse Agreements. Debtor is not a party to any agreement
or instrument, or subject to any charter or other restriction, materially and
adversely affecting its business, properties, assets, or operations or its
condition (financial or otherwise), and Debtor is not in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which it is a party,
which default would constitute a Material Adverse Change to Debtor.
Section 4.7. Default or Event of Default. No Default or Event of
Default hereunder has occurred or is continuing or will occur as a result of the
giving effect hereto.
Section 4.8. Employee Benefit Plans. Each employee benefit plan as to
which Debtor may have any liability complies in all material respects with all
applicable requirements of law and regulations, and (i) no Reportable Event (as
defined in ERISA) has occurred with respect to any such plan, (ii) Debtor has
not withdrawn from any such plan or initiated steps to do so, and (iii) no steps
have been taken to terminate any such plan.
Section 4.9. Information. All information heretofore or
contemporaneously herewith furnished by Debtor to Agent for the purposes of or
in connection with this Agreement or any transaction contemplated hereby is, and
all information hereafter furnished by or on behalf of Debtor to Agent will be,
true and accurate in every material respect on the date as of which such
information is dated or certified; and none of such information is or will be
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Section 4.10. Environmental Matters. Except as may have been disclosed
in writing to Agent prior to the date hereof, no properties of Debtor has ever
been, and ever will be so long as this Agreement remains in effect, used for the
generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Materials, except in compliance with such Environmental
Laws. Except as may have been disclosed in writing by Debtor to Agent, Debtor
represents and warrants that it is in compliance with all Environmental Laws
affecting it and its properties.
Section 4.11. Employer Identification Number; Name. Debtor's employer
identification number is 00-0000000. Debtor has consistently utilized the name
"Tanger Properties Limited Partnership."
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Section 4.12. Survival of Representations and Warranties. Debtor
understands and agrees that Banks are relying upon the above representations and
warranties in making the above referenced Loans to Debtor. Debtor further agrees
that the foregoing representations and warranties shall be continuing in nature
and shall remain in full force and effect until such time as the Indebtedness
shall be paid in full, or until this Agreement shall be terminated, whichever is
the last to occur.
Section 4.13. No Margin Stock. Debtor is not engaged, and will not
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. No part of the proceeds of the Loans
hereunder will be used for "purchasing" or "carrying" "margin stock" as so
defined or for any purpose which violates, or which would be inconsistent with,
the provisions of the Regulations of such Board of Governors.
ARTICLE V
AFFIRMATIVE COVENANTS
Debtor, covenants and agrees in favor of Agent as follows:
Section 5.1. Financial Statements. Debtor, will furnish or cause to
be furnished to Agent:
(a) within forty-five (45) days following the end of each calendar
quarter commencing December 31, 1996, financial statements
consisting of the balance sheets of Debtor as of the end of
such quarter, and statements of income and statements of cash
flow of Debtor for such quarter and for the fiscal year
through such quarter, all certified by the Managing General
Partner of Debtor, as having been prepared in accordance with
GAAP consistently applied,
(b) within forty-five (45) days following the end of each calendar
quarter commencing December 31, 1996, consolidating financial
statements of Debtor and Centers consisting of balance sheets
of Debtor and Centers as of the end of such quarter, and
statements of income and statements of cash flow of Debtor and
Centers for such quarter and for the fiscal year through such
quarter, all certified by the Managing General Partner of
Debtor and the Chief Financial Officer of Centers as having
been prepared in accordance with GAAP consistently applied,
(c) as soon as available and in any event within one hundred
twenty (120) days following the end of each fiscal year
commencing beginning with the fiscal year ending December 31,
1996, and each fiscal year thereafter, consolidating financial
statements of Debtor and Centers consisting of a balance sheet
as
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at the end of such fiscal year and
statements of income, and statement of cash flow for
such fiscal year, setting forth in each case in
comparative form the corresponding figures for the
preceding fiscal year, all certified by the Managing
General Partner of Debtor and the Chief Financial
Officer of Centers as having been prepared in
accordance with GAAP consistently applied,
(d) as soon as available and in any event within one hundred
twenty (120) days following the close of fiscal year of Debtor
audited, consolidated and consolidating financial statements
of Debtor and Centers consisting of a balance sheet as at the
end of such fiscal year and statements of income, and
statement of cash flow for such fiscal year, setting forth in
each case in comparative form the corresponding figures for
the preceding fiscal year, certified by independent public
accountants of recognized standing acceptable to Agent, and
(e) within forty-five (45) days after the end of each calendar
quarter, a certificate signed by the Managing General Partner
of Debtor and the Chief Financial Officer of Centers
certifying that it has reviewed this Agreement and to the best
of its knowledge no Default or Event of Default has occurred,
or if such Default or Event of Default has occurred,
specifying the nature and extent thereof, and that all
financial covenants in this Agreement have been met, and
providing a computation of all financial covenants contained
herein.
Section 5.2. Notice of Default; Litigation; ERISA Matters. Debtor will
give written notice to Agent as soon as reasonably possible and in no event more
than five (5) Business Days of (i) the occurrence of any Default or Event of
Default hereunder of which it has knowledge, (ii) the filing of any actions,
suits or proceedings against Debtor in any court or before any governmental
authority or tribunal of which it has knowledge which could cause a Material
Adverse Change with respect to Debtor, (iii) the occurrence of a reportable
event under, or the institution of steps by Debtor to withdraw from, or the
institution of any steps to terminate, any employee benefit plan as to which
Debtor may have liability, or (iv) the occurrence of any other action, event or
condition of any nature of which Debtor has knowledge and in good faith believes
may cause, or lead to, or result in, any Material Adverse Change to Debtor.
Section 5.3. Maintenance of Partnership Existence and Properties.
Debtor will (i) continue to engage in the business presently being operated by
it; (ii) maintain its partnership existence and good standing in each
jurisdiction in which it is required to be qualified; (iii) keep and maintain
all franchises, licenses and properties necessary in the conduct of its business
in good order and condition; and (iv) duly observe and conform to all material
requirements of any governmental authorities relative to the conduct of its
business or the operation of its properties or assets.
Section 5.4. Taxes. Debtor shall pay or cause to be paid when due, all
taxes, local and special assessments, and governmental and other charges of
every type and description, that may
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from time to time be imposed, assessed and levied Debtor and its properties.
Debtor further agrees to furnish Agent with evidence that such taxes,
assessments, and governmental and other charges due by Debtor have been paid in
full and in a timely manner. Debtor may withhold any such payment or elect to
contest any lien if Debtor is in good faith conducting an appropriate proceeding
to contest the obligation to pay.
Section 5.5. Required Insurance. Debtor shall maintain insurance with
insurance companies in such amounts and against such risks as is usually carried
by owners of similar businesses and properties in the same general areas in
which each of its properties is located, including, but not limited to property,
liability, business interruption, and flood insurance, and as shall be
reasonably satisfactory to Agent.
Debtor agrees, if requested by Agent to provide Agent with originals or
certified copies of such policies of insurance. Debtor further agrees, if
requested by Agent to furnish Agent with copies of all renewal notices and, if
requested by Agent, with copies of receipts for paid premium.
Section 5.6. Payment and Performance. Debtor shall duly and punctually
pay and perform its obligations under the Notes, this Agreement (as the same may
at any time be amended or modified and in effect) and under each of the Related
Documents, in accordance with the terms hereof and thereof.
Section 5.7. Compliance with Environmental Laws. Debtor shall comply
with and shall cause all of its employees, agents, invitees or sublessees to
comply with all Environmental Laws with respect to the disposal of industrial
refuse or waste, and/or the discharge, procession, treatment, removal,
transportation, storage and handling of Hazardous Materials, and pay immediately
when due from Debtor the cost of removal of any such from, and keep its
properties free of any lien imposed pursuant to any such laws, rules,
regulations or orders.
Regardless of whether any Event of Default hereunder shall have
occurred and be continuing, Debtor (i) releases and waives any present or future
claims against Agent for indemnity or contribution in the event Debtor becomes
liable for remediation costs under any Environmental Laws, and (ii) agrees to
defend, indemnify and hold harmless Agent from any and all liabilities
(including strict liability), actions, demands, penalties, losses, costs or
expenses (including, without limitation, reasonable attorneys fees and remedial
costs), suits, administrative orders, agency demand letters, costs of any
settlement or judgment and claims of any and every kind whatsoever which may now
or in the future (whether before or after the termination of this Agreement) be
paid, incurred, or suffered by, or asserted against Agent by any person or
entity or governmental agency for, with respect to, or as a direct or indirect
result of, the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, or release from or onto the property of Debtor of any
hazardous materials, wastes or conditions regulated by any Environmental Laws,
contamination resulting therefrom, or arising out of, or resulting from, the
environmental condition of such property or the applicability of any
Environmental Laws not caused by Agent, Agent's employees or agents (the costs
and/or liabilities described in (i) and (ii) above being hereinafter referred to
as the "Liabilities"). The covenants and indemnities contained in this Section
5.7 shall survive termination
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of this Agreement.
Section 5.8. Further Assurances. Debtor will, at any time and from time
to time, execute and deliver such further instruments and take such further
action as may reasonably be requested by Agent, in order to cure any defects in
the execution and delivery of, or to comply with or accomplish the covenants and
agreements contained in this Agreement or the Loan Documents.
Section 5.9. Financial Covenants. Debtor shall comply with the
following covenants and ratios:
(a) Debtor will not permit its ratio of Debt to Total Assets to
exceed 0.6:1.0.
(b) Debtor will not permit its ratio of its Secured Debt to Total
Assets to exceed 0.4:1.0.
(c) Debtor will maintain its Debt Service Ratio at not less than
2.0:1.0, computed on a rolling four-quarter average.
(d) Debtor shall maintain Adjusted Unencumbered Assets equal to
its Total Committed Unsecured Debt.
(e) Debtor shall maintain Net Worth, inclusive of minority
interests, equal to or in excess of $120,000,000.00.
(f) Debtor shall not declare or pay (or set aside reserves for
payment of) any dividends or distributions or make any
shareholder/affiliate loans; provided, however, that Debtor
may make distributions to its partners in any fiscal year
period not in excess of its Funds from Operations, measured as
of the end of each of Debtor's fiscal years.
Section 5.10. Operations. Debtor shall conduct its business affairs in
a reasonable and prudent manner and in compliance with all applicable federal,
state and municipal laws, ordinances, rules and regulations respecting its
properties, charters, businesses and operations, including compliance with all
minimum funding standards and other requirements of ERISA of 1974, and other
laws applicable to any employee benefit plans which they may have.
Section 5.11. Employee Benefit Plans. So long as this Agreement remains
in effect, Debtor will maintain each employee benefit plan as to which they may
have any liability, in compliance with all applicable requirements of law and
regulations.
Section 5.12 Use of Proceeds. Debtor shall use the proceeds of the
Loans solely for construction of additional factory outlet centers, acquisition
of existing factory outlet centers, expansion phases of existing centers, and
for general working capital purposes.
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ARTICLE VI
NEGATIVE COVENANTS
Debtor agrees in favor of Agent as follows:
Section 6.1. Limitations on Fundamental Changes. Without the prior
written consent of Agent, Debtor shall not change the nature of its business, or
form any subsidiary the effect of which would have a material adverse effect on
Debtor's financial condition, nor shall it enter into any transaction of merger
or consolidation the effect of which would have a material adverse effect on
Debtor's financial condition, or liquidate or dissolve itself (or suffer any
liquidation or dissolution).
Section 6.2. Disposition of Assets. Except for leases with tenants in
the ordinary course of business, Debtor shall not convey, sell, lease, assign,
transfer or otherwise dispose of, any of its properties whether now owned or
hereafter acquired except property disposed of in the ordinary course of
business, provided that, if such property is to be replaced, the net cash
proceeds of each such transaction are applied to obtain a replacement item or
items within 30 days of the disposition thereof. Without limitation of other
transfers that may be deemed to be in the ordinary course of business for the
purposes hereof, the transfer during any annual period, commencing on the date
hereof or any anniversary hereof, of (a) properties having an aggregate value
less than the lesser of (i) $30,000,000.00 or (ii) 10% of Total Assets, or (b)
outparcels of developed or acquired factory outlet centers, shall be deemed to
be in the ordinary course of business.
Section 6.3. Other Agreements. Debtor will not enter into any agreement
containing any provision which would be violated or breached by the performance
of its obligations hereunder or under any instrument or document delivered or to
be delivered by it hereunder or in connection herewith.
Section 6.4. Transactions with Affiliates. Debtor will not enter into
any agreement with any Affiliates or Subsidiaries except to the extent that such
agreements are commercially reasonable which provide for terms which would
normally be obtainable in an arm's length transaction with an unrelated third
party.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1. Events of Default. The occurrence of any one or more of
the following shall constitute an Event of Default:
Default Under the Indebtedness. Should Debtor default in the payment of
principal or interest under the Indebtedness of Debtor and such default shall
not be cured within ten days of the occurrence thereof.
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Default Under this Agreement. Should Debtor violate or fail to comply
fully with any of the terms and conditions of, or default under, this Agreement
and such default not be cured within thirty days after Debtor has knowledge of
the occurrence thereof (provided, however, that no cure period shall be
available for a default in the obligation to maintain insurance coverages
required hereby) (provided further, however, if such default cannot with due
diligence be cured within said 30 days and further provided that Debtor shall
have promptly commenced to cure said default within such 30 days and diligently
pursues the same to completion Borrower shall have an additional reasonable
period of time in which to cure said default).
Default Under the Guaranty. Should Centers default in the terms of the
Guaranty, or should Centers assert the invalidity, unenforceability, or
uncollectability of the Guaranty and such default not be cured within thirty
days after Centers have knowledge of the occurrence thereof (provided, however,
if such default cannot with due diligence be cured within said 30 days and
further provided that Centers shall have promptly commenced to cure said default
within such 30 days and diligently pursues the same to completion Centers shall
have an additional reasonable period of time in which to cure said default).
Default Under Other Agreements. Should any event of default occur or
exist under any of the Related Documents or should Debtor violate, or fail to
comply fully with, any terms and conditions of any of the Related Documents and
such default not be cured within thirty days of the occurrence thereof
(provided, however, that no cure period shall be available for a default in the
obligation to maintain insurance coverages required thereby)(provided further,
however, if such default cannot with due diligence be cured within said 30 days
and further provided that Debtor shall have promptly commenced to cure said
default within such 30 days and diligently pursues the same to completion Debtor
shall have an additional reasonable period of time in which to cure said
default.
Default in Favor of Third Parties. The Debtor or Centers shall fail to
make any payment of principal of or interest on (i) any recourse Debt of the
Debtor or Centers of $5,000,000 or more in the aggregate (other than any Debt
under this Agreement, the Notes, or the Related Documents) within the applicable
cure period; or (ii) any non-recourse Indebtedness of the Debtor or Centers of
$10,000,000 or more in the aggregate (other than Debt under this Agreement, the
Notes, or the Related Documents) within the applicable cure period; and if the
effect of such failure described in subclause (i) or (ii) is to accelerate, or
to permit the holder of such aggregate Debt or any other Person to accelerate,
the maturity of such Debt; or such Debt shall be required to be prepaid (other
than by a regularly scheduled required prepayment) in whole or in part prior to
its stated maturity.
Management. Should a change occur in Debtor's Management Team
(hereinafter defined) and Agent in its reasonable judgment shall determine that
such change may lead to a Material Adverse Change in Debtor. As used herein,
Debtor's Management Team shall mean any of the President or Chairman of the
Board of Centers or the senior financial or operating officers of the Debtor.
Debtor shall have thirty days after notice from Agent of default to cure any
default under this subparagraph.
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Insolvency. The following occurrences, in addition to the failure or
suspension of Debtor or Centers, shall constitute an Event of Default hereunder:
(a) Filing by Debtor or Centers of a voluntary petition or any
answer seeking reorganization, arrangement, readjustment of
its debts or for any other relief under any applicable
bankruptcy act or law, or under any other insolvency act or
law, now or hereafter existing, or any action by Debtor or
Centers consenting to, approving of, or acquiescing in, any
such petition or proceeding; the application by Debtor for, or
the appointment by consent or acquiescence of, a receiver or
trustee of Debtor or Centers for all or a substantial part of
the property of any such person; the inability of Debtor or
Centers or the admission by Debtor or Centers in writing, of
its inability to pay its debts as they mature (the term
"acquiescence" means the failure to file a petition or motion
in opposition to such petition or proceeding or to vacate or
discharge any order, judgment or decree providing for such
appointment within sixty (60) days after the appointment of a
receiver or trustee); or
(b) Filing of an involuntary petition against Debtor or Centers in
bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under any
applicable bankruptcy act or law, or under any other
insolvency act or law, now or hereafter existing and such
petition remains undismissed or unanswered for a period of
sixty (60) days from such filing; or the insolvency
appointment of a receiver or trustee of Debtor or Centers for
all or a substantial part of the property of any such Person
and such appointment remains unvacated or unopposed for a
period of sixty (60) days from such appointment, execution or
similar process against any substantial part of the property
of Debtor and such warrant remains unbonded or undismissed for
a period of sixty (60) days from notice to Debtor of its
issuance.
Dissolution Proceedings. Should proceedings for the dissolution or
appointment of a liquidator of Debtor or Centers be commenced by Debtor or
Centers.
False Statements. Should any representation or warranty of Debtor made
in connection with the Indebtedness prove to be incorrect or misleading in any
material respect when made or reaffirmed.
Material Adverse Change. Should a Material Adverse Change with respect
to Debtor or Centers occur at any time and not be cured within 30 days of the
occurrence thereof.
REIT. Should Centers lose its tax status as a REIT, or should Centers
fail to keep and maintain all franchises, licenses and properties necessary in
the conduct of its business, or shall fail to continue in its business as
presently conducted, or should Centers acquire or create any
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additional subsidiaries or Affiliates, or should Centers fail to distribute to
the Debtor the net proceeds of any public offerings of stock or securities or
any other proceeds obtained by Centers in any public or private offerings.
Upon the occurrence of an Event of Default, the Commitment of Banks
under this Agreement will terminate immediately (including any obligation to
make any further Loans to or for the account of Debtor), and, at Banks' option,
the Notes and all Indebtedness of Debtor will become immediately due and
payable, all without notice of any kind to Debtor, except that in the case of
type described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional.
Section 7.2. Waivers by Debtor. Except as otherwise provided for in
this Agreement and by applicable law, as pertains to the Indebtedness Debtor
waives presentment, demand and protest and notice of presentment, dishonor,
notice of intent to accelerate, notice of acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, extension or renewal of
any or all commercial paper, accounts, contract rights, documents, instruments,
chattel paper and guaranties at any time held by Agent on which Debtor may in
any way be liable and hereby ratify and confirm whatever Agent may do in this
regard.
ARTICLE VIII
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THE AGENT
Section 8.1. Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the Notes and Related Documents with such powers as are specifically
delegated to the Agent by the terms hereof and thereof, together with such other
powers as are reasonably incidental thereto. Each Bank specifically acknowledges
that it shall have no right to enforce the Guaranty, which shall be enforced
solely by the Agent. The Agent (the "Agent" as used in this Article VIII shall
include reference to its officers, shareholders, directors, employees and
agents) (a) shall not have any duties or responsibilities except those expressly
set forth in this Agreement and the Related Documents and shall not by reason of
this Agreement or any Related Document be a trustee or fiduciary for any Bank;
(b) shall not be responsible to any Bank for any recitals, statements,
representations or warranties contained in this Agreement or any Related
Document, or in any certificate or other document referred to or provided for
in, or received by any of them under, this Agreement or any Related Document, or
the value, validity, effectiveness, genuineness, enforceability, execution,
filing, registration, collectibility, recording, perfection, existence or
sufficiency of this Agreement or any Related Document or any other document
referred to or provided for herein or therein or any property covered thereby or
for any failure by any Person to perform any of its obligations hereunder or
thereunder, and shall not have any duty to inquire into or pass on any of the
foregoing matters; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any Related Document
except to the extent requested by the Majority Banks; (d) shall not be
responsible for any mistake of law or fact or any action taken or omitted to be
taken hereunder or under any Related Document or any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, including, without limitation, pursuant to its own
negligence, except for its own gross negligence or willful misconduct; (e) shall
not be bound by or obligated to recognize any agreement among or between the
Debtor and any Bank, regardless of whether the Agent has knowledge of the
existence of any such agreement or the terms and provisions thereof; (f) shall
not be charged with notice or knowledge of any fact or information not herein
set out or provided to the Agent in accordance with the terms of this Agreement
or any Related Document; (g) shall not be responsible for any delay, error,
omission or default of any mail, telegraph, cable or wireless agency or
operator; and (h) shall not be responsible for the acts or edicts of any
governmental authority. The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
Section 8.2. Reliance. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel (which may be counsel for the
Debtor), independent accountants and other experts selected by the Agent. The
Agent shall not be required in any way to determine the identity or authority of
any Person delivering or executing the same. As to any matters not expressly
provided for by this Agreement or any Related Document, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
thereunder, and in accordance with instructions of the Majority Banks, and any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks. The Agent shall have the authority to execute
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releases of the Guaranty of Centers and any obligation of Debtor under this
Agreement, the Notes, or the Related Documents on behalf of the Banks without
the joinder of any Bank. If any order, writ, judgment or decree shall be made or
entered by any court affecting the rights, duties and obligations of the Agent
under this Agreement or any Related Document, then and in any of such events the
Agent is authorized, in its sole discretion, to rely upon and comply with such
order, writ, judgment or decree which it is advised by legal counsel of its own
choosing is binding upon it under the terms of this Agreement, the relevant loan
document or otherwise; and if the Agent complies with any such order, writ,
judgment or decree, then it shall not be liable to any Bank or to any other
Person by reason of such compliance even though such order, writ, judgment or
decree may be subsequently reversed, modified, annulled, satisfied or vacated.
Section 8.3. Defaults. The Agent shall not be deemed to have knowledge of
the occurrence of a Default (other than the non-payment of principal or interest
on Loans) unless it has received notice from a Bank or Debtor specifying such
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a Notice of Default, the Agent shall give prompt notice
thereof to the Banks (and shall give each Bank prompt notice of each such
non-payment). The Agent shall (subject to Section 8.7 hereof) take such action
with respect to such Notice of Default as shall be directed by the Majority
Banks and within its rights under the Loan Documents and at law or in equity,
provided that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, permitted hereby with respect to such Notice of Default as
it shall deem advisable in the best interest of the Banks and within its rights
under the loan documents, at law or in equity.
Section 8.4. Rights as a Bank. With respect to its Commitment and the
Loans made, First NBC, in its capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not acting in its agency capacity, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the First NBC, in its
capacity as a Bank. The Agent may (without having to account therefor to any
Bank) accept deposits from, send money to and generally engage in any kind of
banking, trust, letter of credit, agency or other business with the Debtor (and
any of its affiliates) as if it were not acting as Agent, and the Agent may
accept fees and other considerations from the Debtor (in addition to the fees
heretofore agreed to between the Debtor and the Agent) for services not in
connection with this Agreement or otherwise without having to account for the
same to the Banks.
Section 8.5. Indemnification. The Banks agree to indemnify the Agent,
each (to the extent not reimbursed by Debtor under this Agreement, but without
limiting the obligations of the Debtor under this Agreement), ratably, in
accordance with each Bank's Applicable Percentage, for any and all expenses,
obligations, losses, damages, penalties, actions, judgments, suits, expenses or
disbursements of any kind and nature whatsoever, regardless of whether caused in
whole or in part by negligence of Agent, which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any Related Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, but without limitation, the costs and expenses which the Debtor is
obligated to pay under this Agreement), interest, penalties, attorney's fees and
amounts paid in settlement, but excluding,
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unless a Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents; provided that no Bank shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct of the Agent.
The obligations of the Banks under this Section 8.5 shall survive the
termination of this Agreement and the repayment of the Indebtedness.
Section 8.6. Non-Reliance on Agent and Other Banks. Each Bank agrees
that it has received current financial information with respect to the Debtor
and that it has, independently and without reliance on the Agent or any other
Bank and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Debtor and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the Related
Documents. The Agent shall not be required to keep itself informed as to the
performance or observance by any Person of this Agreement or any of the
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Debtor or any Person. Except for
notices, reports and other documents and information expressly required to be
furnished to the Bank by the Agent hereunder or under the Related Documents, the
Agent shall not have any duty or responsibility to provide
any Bank with any credit or other information concerning the affairs, financial
condition or business of the Debtor or any other Person (or any of their
Affiliates) which may come into the possession of the Agent.
Section 8.7. Failure to Act. Except for action expressly required by
the Agent hereunder or under the Related Documents, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder or thereunder unless
it shall receive further assurances to its satisfaction by the Banks of their
indemnification obligations under Section 8.5 hereof against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
Section 8.8. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Debtor, and the
Agent may be removed at any time with cause by the Banks holding Applicable
Percentages equal to or greater than seventy-five percent (75%). Upon any such
resignation or removal, (i) the Majority Banks without the consent of the Debtor
shall have the right to appoint a successor Agent so long as such successor
Agent is also a Bank at the time of such appointment and (ii) the Majority Banks
shall have the right to appoint a successor Agent that is not a Bank at the time
of such appointment so long as the Debtor consents to such appointment (which
consent shall not be unreasonably withheld). If no successor Agent shall have
been so appointed by the Majority Banks and accepted such appointment within
thirty (30) days after the retiring Agent's giving of notice of resignation or
the removal of the retiring Agent by Banks holding Applicable Percentages equal
to or greater than seventy-five percent (75%), then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, subject to consent of Debtor if
such successor Agent is not then a Bank. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights,
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powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations or Agent hereunder and under
any other Loan Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VIII shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent.
Section 8.9. No Partnership. Neither the execution and delivery of this
Agreement nor any of the Related Documents nor any interest the Banks, the Agent
or any of them may now or hereafter have in all or any part of the Indebtedness
shall create or be construed as creating a partnership, joint venture or other
joint enterprise between the Banks or among the Banks and the Agent. The
relationship between the Banks, on the one hand, and the Agent, on the other, is
and shall be that of principals and Agent only, and nothing in this Agreement or
any of the Related Documents shall be construed to constitute the Agent as
Trustee or other fiduciary for any Bank or to impose upon the Agent any duty,
responsibility or obligation other than those expressly provided for herein and
therein.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. No Waiver; Modification in Writing. No failure or delay on
the part of Agent in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. No amendment,
modification or waiver of any provision of this Agreement or of the Notes, nor
consent to any departure by Debtor therefrom, shall in any event be effective
unless the same shall be in writing signed by or on behalf of Agent and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice to or demand on Debtor in any
case shall entitle Debtor to any other or further notice or demand in similar or
other circumstances.
Section 9.2. Payment on Non-Business Day. Whenever any payment to be
made hereunder or on account of the Notes shall be scheduled to become due on a
day which is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
computing interest and fees payable hereunder or on account of the Notes.
Section 9.3. Addresses for Notices. All notices and communications
provided for hereunder shall be in writing and, shall be mailed, by certified
mail, return receipt requested, or delivered as set forth below unless any
person named below shall notify the others in writing of another address, in
which case notices and communications shall be mailed, by certified mail, return
receipt requested, or delivered to such other address.
If to Agent:
First National Agent
of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Real Estate Department
If to Banks:
At their address as set forth on Exhibit "A" hereto
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If to Debtor:
Tanger Properties Limited Partnership
c/o Tanger Factory Outlet Centers, Inc.
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
With copy to:
Xxxxxx Xxx Firm
P. O. Box 2958
000 X. Xxxxxxxxx Xxx.
Xxxxxxxxxx, X.X. 00000
Attn: R. Xxxxx Xxxxxxx
Section 9.4. Fees and Expenses. Debtor agrees to pay all fees, costs
and expenses of Agent in connection with the preparation, execution and delivery
of this Agreement and all Related Documents to be executed in connection
herewith and subsequent modifications or amendments to any of the foregoing,
including without limitation, the reasonable fees and disbursements of counsel
to Agent, and to pay all costs and expenses of Agent in connection with the
enforcement of this Agreement, the Notes or the Related Documents, including
reasonable legal fees and disbursements arising in connection therewith.
Section 9.5. Governing Law Jurisdiction. (a) This Agreement and the
Notes shall be deemed to be contracts made under the laws of the State of
Louisiana and for all purposes shall be construed in accordance with the laws of
said State. (b) DEBTOR, AGENT AND BANKS HEREBY IRREVOCABLY CONSENT TO THE
JURISDICTION OF THE STATE COURTS OF LOUISIANA AND THE FEDERAL COURTS IN
LOUISIANA AND AGREE THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR BROUGHT TO
ENFORCE THE PROVISIONS OF THE NOTES, THIS AGREEMENT AND/OR THE RELATED DOCUMENTS
SHALL BE BROUGHT IN ANY SUCH COURT IN LOUISIANA HAVING SUBJECT MATTER
JURISDICTION; PROVIDED HOWEVER, AT THE ELECTION OF AGENT, ANY SUCH ACTION OR
PROCEEDING MAY BE BROUGHT IN THE STATE COURTS OF NORTH CAROLINA AND THE FEDERAL
COURTS IN NORTH CAROLINA.
Section 9.6. WAIVER OF JURY TRIAL. To the extent permitted by
applicable law, DEBTOR, AGENT, AND BANKS HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH DEBTOR, AGENT, OR ANY BANK MAY BE PARTIES, ARISING
OUT OF OR IN ANY WAY PERTAINING TO (i) THE NOTES, (ii) THIS AGREEMENT, OR (iii)
ANY RELATED DOCUMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO
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ARE NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY DEBTOR, BANKS, AND AGENT AND DEBTOR, AGENT, AND BANKS HEREBY
REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. DEBTOR, AGENT, AND BANKS EACH FURTHER REPRESENT THAT IT HAS
BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
Section 9.7. Severability. If a court of competent jurisdiction finds
any provision of this Agreement to be invalid or unenforceable as to any person
or circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all
other respects shall remain valid and enforceable.
Section 9.8. Consent to Loan Participation; Sales and Assignments (a)
Debtor agrees that any Bank may sell or transfer, whether now or later, one or
more participation interests in the Indebtedness of Debtor arising pursuant to
this Agreement to one or more purchasers. Agent and each Bank may provide,
without any limitation whatsoever, to any one or more purchasers, or potential
purchasers, any information or knowledge Agent or such Bank may have about
Debtor or about any other matter relating to such Indebtedness, and Debtor
hereby waives any rights to privacy they may have with respect to such matters.
Debtor additionally waives any and all notices of sale of participation
interests, as well as all notices of any repurchase of such participation
interests. Debtor agrees that the purchasers of any such participation interest
will be considered as the absolute owners of such interests in such
Indebtedness.
(b) Each original Bank may assign to other Banks or other Persons
that has a short-term unsecured debt rating of at least P-1 from Xxxxx'x
Investor Service or A-1 from Standard & Poor Rating Group, in amounts not less
than $5,000,000.00, whether related or unrelated to such Bank, all or a portion
of its interest, rights and obligations under this Agreement; provided, however,
that (i) the consent of Agent and, provided no Event of Default is continuing,
the Debtor, shall be required prior to any transfer becoming effective, which
consents will not be unreasonably withheld, delayed or conditioned, (ii) other
than in the case of an assignment to another Bank (that is, at the time of the
assignment, a party hereto) the Agent and Debtor must give prior written
consent, which written consent shall not be unreasonably withheld; (iii) the
parties to each such assignment shall execute and deliver to the Agent for its
acceptance an Assignment and Acceptance in form satisfactory to Agent (each an
"Assignment and Acceptance"), together with any Note or Notes subject to such
assignment and an administrative fee of $3,000 paid by the assignee (for which
the Debtor will have no liability); and (iv) each such assignment shall be of a
constant, and not of a varying, percentage of all of the assigning Banks' rights
and obligations under this Agreement. Upon such execution, delivery and
acceptance, from and after the effective date specified in each Assignment and
Acceptance, (a) the assignee thereunder shall be a party hereto and, to the
extent
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provided in such Assignment and Acceptance, have the rights and obligations of
the Bank hereunder and (b) the Bank hereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto). Notwithstanding anything
contained in this Agreement to the contrary, any Bank may at any time assign all
or any portion of its rights under this Agreement and the Notes issued to it as
collateral to a Federal Reserve Bank; provided that no such assignment shall
release such Bank from any of its obligations hereunder; provided further such
Federal Reserve Bank shall not be considered a Bank for purposes of this
Agreement or the Related Documents.
(c) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such Bank
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any of the other Related Documents or the
execution, legality, validity enforceability, genuineness, sufficiency or value
of this Agreement or any of the Related Documents or any other instrument or
document furnished pursuant thereto; (ii) such Bank assignor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Debtor or the performance or observance by the Debtor
of any of its obligations under this Agreement or any of the other Related
Documents or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 5.1 hereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will independently and without reliance upon the Agent, such
Bank assignor and any other Bank, based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the Related Documents; (v)
such assignee appoints and authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all obligations set by the terms
of this Agreement and the Related Documents as are required to be performed by
it as Bank.
(d) The entries in the records of the Agent as to each Assignment
and Acceptance delivered to it and the names and addresses of the Banks and
Commitments of, and principal amount of the Loans owing to, each Bank from time
to time shall be conclusive, in the absence of manifest error, and the Debtor,
the Agent and the Banks may treat each Person, the name of which is recorded in
the books and records of Agent as the Bank hereunder for all purposes of this
Agreement and the Related Documents.
(e) Upon the Agent's receipt of an Assignment and Acceptance
executed by an assigning
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Bank and the assignee thereunder, together with any Note or Notes subject to
such assignment, and the written consent of Debtor and Agent to such assignment,
if required, the Agent shall, if such Assignment and Acceptance has been
completed with blanks appropriately filled, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in its records and
(iii) give prompt notice thereof to the Debtor. Within five (5) Business Days
after receipt of Notice, the Debtor, at its own expense, shall execute and
deliver to the Agent, in exchange for the surrendered Note, new Notes to the
order of such assignee in an amount equal to the Loans, (if applicable) assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained interests hereunder, new Notes to the order of the assigning Bank in an
amount equal to the Loans, (if applicable) retained by it hereunder. Such new
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
the Notes surrendered. Thereafter, such surrendered Notes shall be marked
renewed and substituted and the originals thereof delivered to the Debtor (with
copies, certified by the Debtor as true, correct and complete, to be retained by
the Agent).
(f) Each Bank's right to sell a participation under Section 9.8
(a), and Debtor's consent given with respect to Section 9.8(b), is conditioned
on the following: (i) any transferee of information must protect and maintain
all disclosed information, including but not limited to tenant names and sales
data, confidential and such information may be used for no other purpose other
than evaluating the purchase of participation interests; (ii) every transferee
must execute an appropriate confidentiality/use agreement prior to Agent or a
Bank, as the case may be, delivering to such transferee any information; and
(iii) Agent or such Bank, as the case may be, must provide Debtor a copy of such
signed confidentiality/use agreement prior to making disclosure to such
transferee.
Section 9.9 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit
of the Debtor, the Agent and the Banks and their respective successors and
assigns; provided, however, that the Debtor may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of all of
the Banks, and any such assignment or transfer without such a consent shall be
null and void.
Section 9. 10. Headings. Article and Section headings used in this
Agreement are for convenience only and shall not affect the construction of this
Agreement.
Section 9.11. Counterparts. This Agreement may be executed in
counterparts and different parties hereto may execute different counterparts,
but all counterparts together shall constitute a single document.
Section 9. 12 Amendments. This Agreement may be amended from time to
time, but only in writing, by Agent and Debtor, including amendments to modify
the aggregate amount of the Commitments and to admit additional Banks as parties
to this Agreement (in addition to the provisions of Section 9.8 hereof regarding
assignments of existing interests) provided, however, any
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such amendments shall not require Debtor providing additional resolutions or
opinions of counsel unless such amendment involves an increase in the Commitment
Amount and a related amendment to the Guaranty to increase the guaranty amount,
in which case Banks and Agent may require additional resolutions and opinions .
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DEBTOR:
TANGER PROPERTIES LIMITED
PARTNERSHIP
BY: TANGER FACTORY OUTLET
CENTERS, INC.
General Partner
By: _______________________________
Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
Chief Executive Officer
AGENT:
FIRST NATIONAL AGENT OF COMMERCE
By: ________________________________
Xxxxx X. Xxxxxx
Title: Vice President
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BANKS:
FIRST NATIONAL BANK OF COMMERCE
By: ___________________________________
Xxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
Banks Commitment Applicable Address for
Percentage Notes
First National $15,000,000.00 100% 000 Xxxxxxx Xxxxxx
Xxxx xx Xxx Xxxxxxx, XX 00000
Commerce Attn: Xxxxx X. Xxxxxx
Real Xxxxxx Xxxxxxxxxx
-00-
-00-
XXXXXXX X
The Agency Fee shall be the sum of $2,000 per annum (pro-rated as set forth
in Section 2.13, as applicable) for each Bank other than First National Bank of
Commerce.
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EXHIBIT C
Commitment Amount
$15,000,000.00
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EXHIBIT D
Form of Note
PROMISSORY NOTE
PRINCIPAL AMOUNT: [AMOUNT OF BANK'S COMMITMENT] DATE OF NOTE:
PROMISE TO PAY. TANGER PROPERTIES LIMITED PARTNERSHIP, a North Carolina
Limited Partnership ("Debtor") promises to pay to the order of [name of
Bank]("Bank"), in lawful money of the United States of America the sum of
[amount of Bank's Commitment] AND NO/100 DOLLARS ($[amount in numerals]) 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 Section 2.7 of 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 one of the
Notes issued pursuant to, and entitled to the benefits of, that certain Loan
Agreement dated as of October 14, 1996 between Debtor, First National Bank of
Commerce, as agent (the "Agent"), and the banks party thereto from time to time,
as the same may be amended, modified, or restated from time to time (as so
amended, modified, or restated, the "Loan Agreement"). Bank shall act
exclusively through Agent with respect to all rights and terms of this Note.
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 [first monthly date after date of Note] 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.
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Debtor will pay First National Bank of Commerce, as Agent under the Loan
Agreement, and its successors as Agent, at the address shown in the Loan
Agreement, or at such other place as Agent 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 Agent 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 my 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
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under the laws of the State of Louisiana. Specifically, this business or
commercial Note is subject to La. R.S. 9:3509 et seq.
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 all pleas of division and discussion, 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 that 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.
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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, AGENT 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
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EXHIBIT E
Termination Date
June 30, 1998
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EXHIBIT F
Minimum Advance
LIBOR Rate Loans __________________________________$500,000.00
Prime Rate Loans ___________________________________$100,000.00
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of October 14, 1996 (the "Guaranty"),
is given by TANGER FACTORY OUTLET CENTERS, INC., a North Carolina corporation
(the "Guarantor"); and extended to FIRST NATIONAL BANK OF COMMERCE, a national
banking association, with its principal offices located in New Orleans,
Louisiana, in its capacity as agent under the Loan Agreement (defined below) (in
such capacity, the "Agent") and in favor of each bank or other institution
(each, a "Bank" and collectively, the "Banks") now or hereafter party to the
Loan Agreement, for the benefit of TANGER PROPERTIES LIMITED PARTNERSHIP, a
limited partnership organized under the laws of the State of North Carolina (the
"Debtor").
RECITALS:
1. The Banks have agreed to make loans (the "Loans") of up to
$15,000,000.00 to Debtor pursuant to the terms and conditions of notes executed
pursuant to the Loan Agreement dated even date herewith among Debtor, Agent, and
Banks (as amended, modified, renewed or extended from time to time, the "Loan
Agreement") as amended, modified, renewed, or extended from time to time (the
"Notes"). All of the definitions used in the Notes and the Loan Agreement are
hereby incorporated herein by reference and shall have the meaning set forth in
the Notes and the Loan Agreement unless otherwise defined herein. References
herein to the "Loans" and to the "Related Documents" refer to the Loans defined
above and to the Related Documents as defined in the Loan Agreement.
2. The Guarantor is the sole general partner of the Debtor.
3. Without this Guaranty the Banks would be unwilling to make
the Loans to Debtor.
4. Because of the direct benefit to the Guarantor from the loans to the
Debtor, the Guarantor agrees to guarantee to the Banks the obligations of the
Debtor as set forth herein.
NOW THEREFORE, in consideration of the Banks entering into the Loan
Agreement and making the Loans to Debtor, and subject to the covenants and
conditions of Item 19 below:
1. Guaranty of Payment. The Guarantor hereby unconditionally guarantees
to the Agent and the Banks the payment, when due, by acceleration or otherwise,
of the Indebtedness. For the purposes hereof, the term "Indebtedness" shall
include any and all indebtedness of the Debtor to the Agent and the Banks
evidenced by the Notes and the Loan Agreement and the Related Documents or
arising in connection with the Loans, including without limitation, all
principal, interest, fees and expenses, whether existing now or arising
hereafter, as such Notes, Loan Agreement and Related Documents may be modified,
extended, or renewed from time to time. The guaranty of the Guarantor as set
forth in this section is a guaranty of payment and not of collection.
2. Guaranty of Performance. The Guarantor additionally unconditionally
guarantees to the Agent and the Banks the timely performance of all other
obligations of the Debtor under the Loan Agreement and all of the Related
Documents.
1
In the event of the occurrence of an Event of Default as defined in the
Loan Agreement relating to any of the foregoing conditions, and without the
necessity of any notice from the Agent or the Banks to the Guarantor, the
Guarantor agrees to indemnify and hold the Agent and the Banks harmless from any
and all loss, cost, liability or expense the Agent and the Banks may suffer by
reason of any such event. The Agent and the Banks shall accept performance by
the Guarantor of the Debtor's obligations under the Loan Agreement and the
Related Documents, and so long as all of said obligations are being performed by
the Debtor or the Guarantor, the Agent and the Bank will make the Loan proceeds
available under the terms of the Loan Agreement, the Notes, and the Related
Documents. The obligation and liability of the Guarantor under this Section 2
shall not be limited or restricted by the existence of (or limitation on) the
guaranty of payment under Section 1.
3. Subordination. Upon the occurrence and during the continuance of any
Event of Default as defined in the Loan Agreement, no payments shall be made by
Debtor or received by the Guarantor on any indebtedness, now or hereafter
existing, of the Debtor to the Guarantor.
4. Waiver of Rights. The Guarantor expressly waives: (a) notice of
acceptance of this Guaranty by the Banks and of all extensions of credit
pursuant to the Loan Agreement, the Notes, and the Related Documents to the
Debtor by the Banks; (b) presentment and demand for payment of any of the
Indebtedness; (c) protest and notice of dishonor or of default to the Guarantor
or to any other party with respect to the Indebtedness; (d) demand for payment
under this Guaranty; and (e) any right to assert against the Agent or the Banks,
as a defense, counterclaim, set-off, or cross-claim any defense (legal or
equitable), set-off, counterclaim or claim which the Guarantor may now or
hereafter have against the Agent or the Banks or the Debtor, but such waiver
shall not prevent the Guarantor from asserting against the Agent or the Banks in
a separate action, any claim, action, cause of action, or demand that the
Guarantor might have, whether or not arising out of this Guaranty.
5. Primary Liability of the Guarantor. The Guarantor agrees that this
Guaranty may be enforced by the Agent for the benefit of the Banks and Guarantor
waives all rights of division and discussion. The Guarantor further agrees that
nothing contained herein shall prevent the Agent, for the benefit of the Banks,
from suing on the Note or from exercising any other rights available to it under
the Notes, the Loan Agreement, or any other instrument evidencing the
Indebtedness if neither the Debtor nor the Guarantor timely performs the
obligations of the Debtor thereunder, and the exercise of any of the aforesaid
rights shall not constitute a discharge of any of the Guarantor's obligations
hereunder; it being the purpose and intent of the Guarantor that the Guarantor's
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances. Neither the Guarantor's obligations under the Guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Debtor or any co-guarantor or by
reason of the Debtor's or any co-guarantor's bankruptcy or insolvency. The
Guarantor acknowledges that the term "Indebtedness" as used herein includes any
payments made by the Debtor to the Banks and subsequently recovered by the
Debtor or a trustee for the Debtor pursuant to the Debtor's bankruptcy or
insolvency. At any time the Agent, for the benefit of the Banks, is entitled to
exercise its remedies hereunder, it may in its discretion elect to demand
payment or performance. the event the Agent, for the benefit of the Banks,
elects to demand performance,
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it shall at all times thereafter have the right to demand payment until all of
the Indebtedness has been paid in full. In the event the Agent, for the benefit
of the Banks, elect to demand payment, it shall at all times thereafter have the
right to demand performance until all of the Indebtedness has been paid in full.
6. Waiver of Subrogation Rights. The Guarantor agrees that (i) during
the period prior to the payment in full of the Indebtedness the Guarantor shall
have no rights of subrogation, reimbursement, contribution or indemnity
whatsoever against Debtor for the Guarantor's payment to the Agent or any Bank
of the Guarantor's obligation under this Guaranty (hereinafter referred to as
the "Rights"), and (ii) the Guarantor waives and renounces but only during the
period set forth in (i) above any Rights the Guarantor has or may have against
the Debtor for the Guarantor's payment to the Agent or any Bank of Guarantor's
obligations under this Guaranty. This waiver is expressly intended to prevent
the existence of any claim (as defined in the Bankruptcy Code) in respect of
such Rights by the Guarantor and to prevent the Guarantor from being a creditor
of Debtor due to such Rights unless the Bank has received payment in full of the
Indebtedness.
7. Attorney's Fees and Costs of Collection. If at any time or times
hereafter the Agent or the Banks employ counsel to pursue collection, to
intervene, to xxx for enforcement of the terms hereof or of the Loan Agreement,
the Notes, or the Related Documents, or to file a petition, complaint, answer,
motion or other pleading in any suit or proceeding relating to this Guaranty or
the Loan Agreement, the Notes, or the Related Documents, then in such event, all
of the reasonable attorneys' fees relating thereto shall be an additional
liability of the Guarantor to the Agent and the Banks, payable on demand.
8. Term of Guaranty; Warranties. This Guaranty shall continue in full
force and effect until the Indebtedness is fully paid. This Guaranty covers the
Indebtedness whether presently outstanding or arising subsequent to the date
hereof including all amounts advanced by the Banks in stages or installments and
all revolving credit loans and advances made pursuant to the Loan Agreement, the
Notes, or the Related Documents. The Guarantor warrants and represents to the
Agent and the Banks, (i) that this Guaranty is binding upon and enforceable
against the Guarantor, in accordance with its terms, (ii) that the execution and
delivery of this Guaranty do not violate or constitute a breach of any agreement
to which the Guarantor is a party or of any applicable laws, (iii) that there is
no litigation, claim, action or proceeding pending, or to the best knowledge of
the Guarantor, threatened against the Guarantor which would materially adversely
affect the financial condition of the Guarantor or its ability to fulfill its
obligations hereunder. Guarantor agrees to submit annually to the Agent current
financial statements in the same form and with the same substance and level of
detail required of the Debtor pursuant to the Loan Agreement. Guarantor agrees
to promptly inform the Agent of the adverse determination of any litigation,
claim, action or proceeding or the institution of any litigation, claim, action
or proceeding against Guarantor which does or could materially adversely affect
the financial condition of the Guarantor or its ability to fulfill its
obligations hereunder. This Guaranty is binding on and enforceable against the
Guarantor, its successors and assigns. The Guarantor represents and warrants
that (i) it is a corporation duly organized, existing and in good standing under
the laws of the State of North Carolina, with stock outstanding that has been
duly and validly issued, (ii) it has the corporate power, authority and legal
right to carry on the business now being conducted by it and to engage in the
transactions
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contemplated by this Guaranty and the Loan Documents, and (iii) the execution
and delivery of this Guaranty and the performance and observance of the
provisions hereof have been duly authorized by all necessary corporate and, if
required, stockholder action.
9. Further Representations and Warranties. The Guarantor further
represents to the Agent and the Banks that the Guarantor has knowledge of the
Debtor's financial condition and affairs and represents and agrees that it will
keep so informed while this Guaranty is in force. The Guarantor agrees that the
Agent and the Banks will have no obligation to investigate the financial
condition or affairs of the Debtor for the benefit of the Guarantor nor to
advise the Guarantor of any fact respecting, or any change in, the financial
condition or affairs of the Debtor which might come to the knowledge of the
Agent and the Banks at any time, whether or not the Agent and the Banks know or
believe or have reason to know or believe that any such fact or change is
unknown to the Guarantor or might (or does) materially increase the risk of the
Guarantor as guarantor or might (or would) affect the willingness of the
Guarantor to continue as guarantor with respect to the Indebtedness.
10. Additional Liability of the Guarantor. If the Guarantor is or
becomes liable for any indebtedness owing by the Debtor to the Agent and the
Banks by endorsement or otherwise than under this Guaranty, such liability shall
not be in any manner impaired or reduced hereby but shall have all and the same
force and effect it would have had if this Guaranty had not existed and the
Guarantor's liability hereunder shall not be in any manner impaired or reduced
thereby.
11. Cumulative Rights. All rights of the Agent and the Banks hereunder
or otherwise arising under any documents executed in connection with the
Indebtedness are separate and cumulative and may be pursued separately,
successively or concurrently, or not pursued, without affecting or limiting any
other right of the Agent and the Banks and without affecting or impairing the
liability of the Guarantor.
12. Usury. Notwithstanding any other provisions herein contained, no
provision of this Guaranty shall require or permit the collection from the
Guarantor of interest in excess of the maximum rate or amount that the Guarantor
may be required or permitted to pay pursuant to any applicable law.
13. Multiple Counterparts; Pronouns; Captions; Severability. This
Guaranty may be executed in multiple counterparts, each of which shall be deemed
an original but all of which shall constitute but one and the same document. The
pronouns used in this instrument shall be construed as masculine, feminine or
neuter as the occasion may require. Captions are for reference only and in no
way limit the terms of this Guaranty. Invalidation of any one or more of the
provisions of this Guaranty shall in no way affect any of the other provisions
hereof, which shall remain in full force and effect.
14. Bank Assigns. This Guaranty is intended for and shall inure to the
benefit of the Agent and each Bank and each and every person who shall from time
to time be or become the "Agent" under the Loan Agreement or the owner or holder
of any of the Indebtedness, and each and every reference herein to the "Agent"
shall include successors and assigns of First National Bank
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of Commerce in such capacity and every reference herein to "Bank" shall include
and refer to each and every successor or assignee of the Bank at any time
holding or owning any part of or interest in any part of the Indebtedness.
This Guaranty shall be transferable and negotiable with the same force
and effect, and to the same extent, that the Indebtedness is transferable and
negotiable, it being understood and stipulated that upon assignment or transfer
by the Agent of its rights and duties under the Loan Agreement or by any Bank of
any of the Indebtedness, the successor Agent under the Loan Agreement, or the
legal holder or owner of said Indebtedness (or a part thereof or interest
therein thus transferred or assigned by the Bank), as the case may be, shall
(except as otherwise stipulated by the Bank in its assignment) have and may
exercise all of the rights granted to the Agent or such Bank under this Guaranty
to the extent of that part of or interest in the Indebtedness thus assigned or
transferred to said person. The Guarantor expressly waives notice of transfer or
assignment of the Indebtedness, or any part thereof, or of the rights of the
Agent or such Bank hereunder. Failure to give notice will not affect the
liability of the Guarantor hereunder.
15. Application of Payments. The Banks may apply any payments received
by it from any source against that portion of the Indebtedness (principal,
interest, court costs, attorneys' fees or other) in such priority and fashion as
it may deem appropriate.
16. Notices. All notices required to be given hereunder shall be in
writing and shall be deemed served at the earlier of (i) receipt or (ii)
seventy-two (72) hours after deposit in registered, certified or first-class
United States mail, postage prepaid, or (iii) upon delivery when deposited with
Federal Express, Airborne Express, or other similar courier providing next-day
deliveries, in each case, addressed to the parties at the following addresses,
or such other addresses as may from time to time be designated by written notice
given as herein required:
to the Guarantor:
Tanger Factory Outlet Centers, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx [zip 27408]
X.X. Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
and Xx. Xxxxxxxx Xxxxxxx
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to the Agent or the Banks:
Mr. Xxxxx Xxxxxx
First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxxxxxx
Xxx Xxxxxxx, XX 00000
Personal delivery to any officer, agent or employee of a party at its address
herein shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of changed address of which no notice has been
received shall also constitute receipt. Notwithstanding the foregoing, no notice
of change of address shall be effective until the date of receipt thereof. This
section shall not be construed in any way to affect or impair any waiver of
notice of demand herein provided or to require giving of notice or demand to or
upon the Guarantor in any situation or for any reason.
17. Governing Law. This Guaranty shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws and judicial decisions of the State of Louisiana. The Guarantor, the Agent,
and the Banks agree that any dispute arising out of this Guaranty shall be
subject to the jurisdiction of both the state and federal courts in the States
of Louisiana or North Carolina, and acknowledges that Agent shall have the sole
and complete discretion regarding the selection of which of the two
jurisdictions in which it will elect to bring suit. For that purpose, the
Guarantor hereby submits to the jurisdiction of the state and federal courts of
the States of Louisiana and North Carolina. The Agent and the Banks agree that
they will not seek to enforce this Guaranty in any other jurisdiction, so long
as Guarantor is domiciled in North Carolina and is subject to service of process
in the State of Louisiana. The Guarantor further agrees to accept service of
process out of any of the before mentioned courts in such dispute by registered
or certified mail addressed to the Guarantor.
18. Federal Tax Identification Number. The Guarantor hereby certifies
to the Bank that the Guarantor's federal tax identification number is
00-0000000.
19. Bank Covenants. Notwithstanding any other provisions of this
Guaranty by accepting this Guaranty Agent and each Bank warrants, covenants and
agrees as follows: (a) no Bank may enforce any rights under this Guaranty
directly, but all rights hereunder shall be enforced solely by and through the
Agent; (b) such Bank will not authorize or direct Agent, on its behalf, to
institute an action against the Guarantor or exercise any of such Bank's
remedies under this Guaranty unless and until an Event of Default (as defined in
the Loan Agreement) has occurred and is continuing; (c) the Loan may be prepaid
in full without penalty (other than any payments due as a result of prepaying a
LIBOR Rate Loan (as defined in the Loan Agreement) prior to the termination of
the then applicable Interest Period (as defined in the Loan Agreement)) at any
time during which an Event of Default has occurred and is continuing; and (d)
such Bank will not authorize or direct Agent, on its behalf, to enforce its
rights against the Guarantor, unless in the same proceeding, the Agent shall
also seek recovery (unless Agent is prohibited, temporarily or permanently, by
bankruptcy, dissolutions, injunction inability to achieve service of
process or other similar legal
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impediment) from the Debtor of any outstanding balance due on the
Indebtedness. Nothing herein shall limit Banks' rights against Guarantor to
pursue only a deficiency judgment or otherwise obligate Banks to take actions
other than as set forth above.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty under seal
as of the day and year first above written.
TANGER FACTORY OUTLET CENTERS, INC.
[CORPORATE SEAL]
BY: _____________________________________
ATTEST: Xxxxxxx X. Xxxxxx
Chairman of the Board
Chief Executive Officer
-------------------------
Secretary
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PROMISSORY NOTE
PRINCIPAL AMOUNT: $15,000,000.00 DATE OF NOTE: OCTOBER 14, 1996
PROMISE TO PAY. TANGER PROPERTIES LIMITED PARTNERSHIP, a North Carolina Limited
Partnership ("Debtor") promises to pay to the order of First National Bank of
Commerce ("Bank"), in lawful money of the United States of America the sum of
FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00) 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 Section 2.7 of 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 one of the Notes issued pursuant
to, and entitled to the benefits of, that certain Loan Agreement dated as of
October 14, 1996 between Debtor, First National Bank of Commerce, as agent (the
"Agent"), and the banks party thereto from time to time, as the same may be
amended, modified, or restated from time to time (as so amended, modified, or
restated, the "Loan Agreement"). Bank shall act exclusively through Agent with
respect to all rights and terms of this Note. 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 November 15, 1996, 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 First National
Bank of Commerce, as Agent under the Loan Agreement, and its successors as
Agent, at the address shown in the Loan Agreement, or at such other place as
Agent 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.
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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 Agent 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 my 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 Louisiana. Specifically, this
business or commercial Note is subject to La. R.S. 9:3509 et seq.
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 all pleas of division and discussion, and severally
agree that their obligations and liabilities to Bank
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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 that 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.
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PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BANK, AGENT AND
BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM BROUGHT BY BANK, AGENT 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
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