TANGER PROPERTIES LIMITED PARTNERSHIP ISSUER AND FOURTH SUPPLEMENTAL INDENTURE DATED AS OF NOVEMBER 4, 2005 $250,000,000 6.15% SENIOR NOTES DUE 2015 SUPPLEMENT TO INDENTURE DATED AS OF MARCH 1, 1996, BETWEEN TANGER PROPERTIES LIMITED PARTNERSHIP (AS...
TANGER
PROPERTIES LIMITED PARTNERSHIP
ISSUER
AND
U.S.
BANK
NATIONAL ASSOCIATION
_______________________________
DATED
AS OF NOVEMBER 4, 2005
______________________________
$250,000,000
6.15% SENIOR NOTES DUE 2015
_________________________________
SUPPLEMENT
TO INDENTURE
DATED
AS OF MARCH 1, 1996, BETWEEN
TANGER
PROPERTIES LIMITED PARTNERSHIP (AS ISSUER) AND
U.S.
BANK NATIONAL ASSOCIATION (AS TRUSTEE)
FOURTH
SUPPLEMENTAL INDENTURE, dated as of November 4, 2005, between TANGER
PROPERTIES LIMITED PARTNERSHIP, a limited partnership duly organized and
existing under the laws of North Carolina (hereinafter called the “Issuer”),
having its principal executive office located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, and U.S. BANK NATIONAL ASSOCIATION,
a
national banking association (hereinafter called the “Trustee”),
having its Corporate Trust Office located at Xxx Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS
WHEREAS,
the Issuer executed and delivered the Indenture (the “Original
Indenture”),
dated
as of March 1, 1996, to the Trustee to issue from time to time for its
lawful purposes debt securities evidencing the Issuer’s senior Unsecured
Indebtedness.
WHEREAS,
Section 301 of the Original Indenture provides that by means of a
supplemental indenture the Issuer may create one or more series of its debt
securities and establish the form, terms and provisions thereof.
WHEREAS,
the Issuer intends by this Supplemental Indenture to (i) create a series of
Issuer’s debt securities, in an aggregate principal amount equal to
$250,000,000, entitled 6.15% Senior Notes due 2015 (the “Notes”)
and
(ii) establish the form and the terms and provisions of the
Notes.
WHEREAS,
the Board of Directors of Tanger Factory Outlet Centers, Inc. (the “Company”),
the
sole owner of Tanger GP Trust who is the sole general partner of the Issuer,
has
approved the creation of the Notes and the form, terms and provisions
thereof.
WHEREAS,
the consent of Holders to the execution and delivery of this Supplemental
Indenture is not required, and all other actions required to be taken under
the
Original Indenture with respect to this Supplemental Indenture have been
taken.
NOW,
THEREFORE IT IS AGREED:
ARTICLE
ONE
DEFINITIONS,
CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
Section
1.1 Definitions.
Capitalized terms used but not otherwise defined in this Fourth Supplemental
Indenture shall have the meanings ascribed to them in the Original Indenture.
In
addition, the following terms shall have the following meanings to be equally
applicable to both the singular and the plural forms of the terms set forth
below:
“COMPARABLE
TREASURY ISSUE”
means,
with respect to any redemption or acceleration date for the Notes, the United
States Treasury security selected by the Independent Investment Banker as having
a maturity comparable to the remaining term of the Notes to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes to be
redeemed.
“COMPARABLE
TREASURY
PRICE”
means,
with respect to any redemption or acceleration date for the Notes: (a) the
average of four Reference Treasury Dealer Quotations for such redemption or
acceleration date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four but
more than one such Reference Treasury Dealer Quotations for such redemption
or
acceleration date, the average of all such quotations, or (c) if the Trustee
obtains only one such Reference Treasury Dealer Quotation for such redemption
or
acceleration date, that Reference Treasury Dealer Quotation.
“DTC”
means
The Depository Trust Company.
“GAAP”
means generally accepted accounting principles, as in effect from time to time,
as used in the United States applied on a consistent basis.
“GLOBAL
NOTE” means a single fully-registered global note in book-entry form, without
coupons, substantially in the form of Exhibit A attached hereto, which
represents the Notes.
“INDENTURE”
means the Original Indenture as supplemented by this Fourth Supplemental
Indenture and as further amended, modified or supplemented with respect to
the
Notes pursuant to the provisions of the Original Indenture.
“INDEPENDENT
INVESTMENT BANKER” means, with respect to any redemption or acceleration date
for the Notes, Banc of America Securities LLC and its successors or Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and its successors (whichever
shall be appointed by the Trustee after consultation with the Issuer) or, if
both such firms or the respective successors, if any, to such firms, as the
case
may be, are unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by
the
Trustee after consultation with the Issuer.
“INTERCOMPANY
DEBT” means indebtedness owed by the Company, Issuer or any Subsidiary solely to
the Company, Issuer or any Subsidiary.
“MATURITY
DATE,” when used with respect to any Note, means the date on which the principal
of such Note or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
“REFERENCE
TREASURY DEALER” means with respect to any redemption or acceleration date for
the Notes, Banc of America Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated and their respective successors (provided, however,
that if any such firm or any such successor, as the case may be, ceases to
be a
primary U.S. Government securities dealer in The City of New York (a “Primary
Treasury Dealer”), the Trustee, after consultation with the Issuer, shall
substitute therefor another Primary Treasury Dealer) and two other Primary
Treasury Dealers selected by the Trustee after consultation with the
Issuer.
“REFERENCE
TREASURY DEALER QUOTATIONS” means, with respect to each Reference Treasury
Dealer and any redemption or acceleration date for the Notes, the average,
as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding such
redemption date.
“STATED
MATURITY” when used with respect to any Note or any installment of principal
thereof or interest thereon, means the date specified in such Note or a coupon
representing such installment of interest as the fixed date on which the
principal of such Note or such installment of principal or interest is due
and
payable.
“SUBSIDIARY”
means any entity of which at the time of determination the Issuer or one or
more
other Subsidiaries owns or controls, directly or indirectly, more than 50%
of
the shares of Voting Stock. The foregoing definition of “Subsidiary” shall only
be applicable with respect to the covenants and other definitions set forth
herein.
“TOTAL
UNENCUMBERED ASSETS” as of any date means Total Assets minus the value of any
properties of the Issuer and its Subsidiaries that are encumbered by any
mortgage, charge, pledge, lien, security interest, trust deed, deed of trust,
deed to secure debt, security agreement, or other encumbrance of any kind (other
than those relating to Intercompany Debt), including the value of any stock
of
any Subsidiary that is so encumbered determined on a consolidated basis in
accordance with GAAP. For purposes of this definition, the value of each
property shall be equal to the purchase price or cost of each such property
(original cost plus capital improvements) and the value of any stock subject
to
any encumbrance shall be determined by reference to the value of the properties
owned by the Issuer of such stock as aforesaid.
“TREASURY
RATE” means, with respect to any redemption or acceleration date for the Notes:
(a) the yield, under the heading that represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Maturity Date of the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding to the nearest month) or
(b)
if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date. The Treasury Rate shall be calculated
by the Issuer and certificated to the Trustee in writing on the third Business
Day preceding the applicable redemption or acceleration date.
“UNSECURED
INDEBTEDNESS”
means Indebtedness of the Issuer or any Subsidiary that is not secured by any
mortgage, pledge, lien, charge, encumbrance or security interest of any kind
upon any property of the Issuer or any Subsidiary.
Section
1.2 Creation
of Notes.
In
accordance with Section 301 of the Original Indenture, the Issuer hereby
creates the Notes as a separate series of its debt securities, entitled “6.15%
Senior Notes due 2015,” issued pursuant to the Indenture. The Notes shall
initially be limited to an aggregate principal amount equal to $250,000,000,
subject to the exceptions set forth in Section 301(2) of the Original
Indenture and section 1.4(f) hereof.
Section
1.3 Form
of Notes.
The
Notes will be issued as registered securities and represented by a single Global
Note, without coupons, registered in the name of DTC or its nominee, as the
case
may be, subject to the provisions of the seventh paragraph of Section 305 of
the
Original Indenture. So long as DTC, or its nominee, is the registered owner
of
the Global Note, DTC or its nominee, as the case may be, will be considered
the
sole Holder of the Notes represented by the Global Note for all purposes under
the Indenture.
Section
1.4 Terms
and Provisions of Notes.
The
Notes shall be governed by all of the terms and provisions of the Original
Indenture, as supplemented by this Fourth Supplemental Indenture, and in
particular, the following provisions shall be terms of the Notes:
(a) Registration
and Form.
The
Notes shall be issuable as registered securities as provided in Section 1.3
of
this Fourth Supplemental Indenture. The Notes shall be issued and may be
transferred only in minimum denominations of $1,000 and integral multiples
of
1,000 in excess thereof.
(b) Payment
of Principal and Interest.
All
payments of principal and interest in respect of the Global Note will be made
by
the Issuer in immediately available funds to DTC or its nominee, as the case
may
be, as the Holder of the Global Note. The Notes shall mature, and the unpaid
principal thereon, shall be payable, on November 15, 2015, subject to the
provisions of the Original Indenture. The rate per anum at which interest shall
be payable on the Notes shall be 6.15%. Interest on the Notes will be payable
semi-annually in arrears on each May 15 and November 15, commencing May 15,
2006
(each, an “Interest
Payment Date”)
and on
the Stated Maturity as specified in Section 1.4(b) hereof, to the Persons in
whose names the Notes are registered in the Security Register applicable to
the
Notes at the close of business on the 15th
calendar
day immediately prior to such payment date regardless of whether such payment
date is a Business Day (each a “Regular
Record Date”).
Interest on the Notes shall be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Notes shall accrue from November 4,
2005.
(c) Sinking
Fund, Redemption or Repayment.
No
sinking fund shall be provided for the Notes and the Notes shall not be
repayable at the option of the Holders thereof prior to Stated Maturity.
(d) Redemption
at the Option of the Issuer.
(1) The
Notes
will be redeemable at any time in whole, or from time to time in part, at the
option of the Issuer on any date at a Redemption Price equal to the greater
of
(i) 100% of the principal amount of the Notes to be redeemed, and (ii) the
sum
of the present values as of the date of redemption or accelerated payment of
the
remaining scheduled payments of principal of and interest on the Notes to be
redeemed (exclusive of interest accrued to the applicable redemption or
acceleration date) discounted to such redemption or acceleration date on a
semiannual basis, assuming a 360-day year consisting of twelve 30-day months,
at
the Treasury Rate plus 25 basis points, plus, in the case of both clauses (i)
and (ii) above, any accrued and unpaid interest on the principal amount of
the
notes being redeemed to such Redemption Date. Notwithstanding the foregoing,
installments of interest on Notes that are due and payable on an Interest
Payment Date falling on or prior to the relevant Redemption Date will be payable
to the persons who were the Holders of the Notes registered as such at the
close
of business on the relevant Regular Record Dates according to the terms and
provisions of the Indenture.
(2) Notice
of
any redemption by the Issuer will be mailed at least 30 days but no more than
60
days before the Redemption Date to each Holder of Notes to be redeemed. The
notice of redemption will specify among other things, the Redemption Price
and
principal amount of the Notes held by the Holder to be redeemed.
(3) If
the
Issuer chooses to redeem less than all of the Notes of a series, the Issuer
will
notify the Trustee at least 45 days prior to giving notice of redemption, or
a
shorter period as may be satisfactory to the Trustee, of the aggregate principal
amount of Notes of the series to be redeemed, if less than all of the Notes
of
that series are to be redeemed, and their Redemption Date. The Trustee will
select, in the manner it deems fair and appropriate, no less than 60 days prior
to the Redemption Date, the Notes of that series to be redeemed in whole or
in
part.
(4) Unless
the Issuer defaults in payment of the Redemption Price, on and after any
Redemption Date interest will cease to accrue on the Notes or portions thereof
called for redemption
(e) Defeasance;
Covenant Defeasance; Waiver.
The
provisions for defeasance in Section 402(2) of the Original Indenture for
covenant defeasance in Sections 402(3) and 1012 of the Original Indenture shall
apply to the Notes (including, without limitation, to the covenants set forth
in
Article Two hereof and Article Ten of the Original Indenture as if such
covenants were referred to therein).
(f) Further
Issues.
The
Issuer may, from time to time, without the consent of the Holders, create and
issue further securities having the same terms and conditions as the Notes
in
all respects, except for issue date and issue price. Additional Notes issued
in
this manner shall be consolidated with and shall form a single series with
the
previously outstanding Notes. Notice of any such issuance shall be given to
the
Trustee and a new supplemental indenture shall be executed in connection with
the issuance of such securities.
ARTICLE
TWO
COVENANTS
FOR BENEFIT OF HOLDERS OF NOTES
Section
2.1 Additional
Covenants.
In
addition to the covenants set forth in the Original Indenture, the Issuer hereby
further covenants as follows:
(a) Maintenance
of Total Unencumbered Assets.
The
Issuer will maintain at all times Total Unencumbered Assets of not less than
135% of the aggregate outstanding principal amount of the Unsecured Debt of
the
Issuer and its Subsidiaries, computed on a consolidated basis in accordance
with
GAAP.
Section
2.2 Amendment
of Existing Covenants.
The
Issuer hereby amends Section 1010(b) of the Original Indenture and replaces
it
in its entirety with the following:
(a) Debt
Service Coverage.
In
addition to the other limitations set forth in Section 1010 of the Original
Indenture, the Issuer will not, and will not permit any Subsidiary to, incur
any
Indebtedness if, for the period consisting of the four consecutive fiscal
quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred, the ratio of Consolidated Income Available
for
Debt Service to the Annual Service Charge shall have been less than 1.5 to
1, on
a pro forma basis after giving effect to the incurrence of such Indebtedness
and
to the application of the proceeds therefrom, and calculated on the assumption
that (i) such Indebtedness and any other Indebtedness incurred by the Issuer
or
its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other
Indebtedness, had occurred at the beginning of such period, (ii) the repayment
or retirement of any other Indebtedness by the Issuer or its Subsidiaries since
the first day of such four-quarter period had been incurred, redeemed or retired
at the beginning of such period (except that, in making such computation, the
amount of Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during such period),
and (iii) any income earned as result of any increased Adjusted Total Assets
since the end of such four-quarter period had been earned, or an annualized
basis, during such period, and (iv) in the case of an acquisition or disposition
by the Issuer of any Subsidiary of any asset or group of assets since the first
day of such four-quarter period, including, without limitation, by merger,
stock
purchase or sale, or asset purchase or sale, such acquisition or disposition
or
any related repayment of Indebtedness had occurred as of the first day of such
period with the appropriate adjustments with respect to such acquisition or
disposition being included in such pro forma calculation.
ARTICLE
THREE
TRUSTEE
SECTION
1.01. Trustee.
The
Trustee is appointed as the principal paying agent, transfer agent and registrar
for the Notes and for the purposes of Section 1002 of the Indenture. The
Notes may be presented for payment at the Corporate Trust Office of the Trustee
or at any other agency as may be appointed from time to time by the Issuer
in
The City of New York.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Issuer. The recitals of fact contained herein shall be taken
as
the statements solely of the Issuer, and the Trustee assumes no responsibility
for the correctness thereof.
ARTICLE
FOUR
MISCELLANEOUS
PROVISIONS
Section
4.1 Ratification
of Original Indenture.
This
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and as supplemented and modified hereby,
the Original Indenture is in all respects ratified and confirmed, and the
Original Indenture and this Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
Section
4.2 Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section
4.3 Successors
and Assigns.
All
covenants and agreements in this Supplemental Indenture by the Issuer shall
bind
its respective successors and assigns, whether so expressed or not.
Section
4.4 Separability
Clause.
In case
any one or more of the provisions contained in this Supplemental Indenture
shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
Section
4.5 Governing
Law.
This
Supplemental Indenture shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and instruments
entered into and, in each case, performed in said state. This Fourth
Supplemental Indenture is subject to the provisions of the Trust Indenture
Act
of 1939, as amended, that are required to be part of this Fourth Supplemental
Indenture and shall, to the extent applicable, be governed by such
provisions.
Section
4.6 Counterparts.
This
Supplemental Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above
written.
TANGER
PROPERTIES LIMITED PARTNERSHIP,
as
ISSUER
By: Tanger
GP
Trust, as General Partner
By: ________________________________
Name: Xxxxxxx
X. Xxxxxx
|
Title:
|
Chairman
of the Board and Chief Executive
Officer
|
Attest:
________________________________
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION,
as
TRUSTEE
By: ________________________________
Name:
Title:
[SEAL]
Attest:
Attest:
________________________________
Name:
Title:
