Exhibit 4.1
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TANGER PROPERTIES LIMITED PARTNERSHIP
ISSUER
AND
TANGER FACTORY OUTLET CENTERS, INC.
GUARANTOR
TO
STATE STREET BANK AND TRUST COMPANY
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THIRD SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 2001
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$100,000,000 9-1/8% SENIOR NOTES DUE 2008
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SUPPLEMENT TO INDENTURE
DATED AS OF MARCH 1, 1996, AMONG
TANGER PROPERTIES LIMITED PARTNERSHIP (AS ISSUER),
TANGER FACTORY OUTLET CENTERS, INC. (AS GUARANTOR) AND
STATE STREET BANK AND TRUST COMPANY (AS TRUSTEE)
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THIRD SUPPLEMENTAL INDENTURE, dated as of February 15, 2001, among TANGER
PROPERTIES LIMITED PARTNERSHIP, a limited partnership duly organized and
existing under the laws of North Carolina (hereinafter called the "Issuer"),
having its principal executive office located at 3200 Northline Avenue, Suite
360, Greensboro, North Carolina 27408, TANGER FACTORY OUTLET CENTERS, INC., a
corporation duly organized and existing under the laws of North Carolina
(hereinafter called the "Guarantor"), having its principal executive office
located at 3200 Northline Avenue, Suite 360, Greensboro, North Carolina 27408,
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
2 Avenue de Lafayette, 6th Floor, Boston, Massachusetts 02111.
RECITALS
WHEREAS, the Issuer and the Guarantor executed and delivered the Indenture
(the "Original Indenture"), dated as of March 1, 1996, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing the
Issuer's senior unsecured indebtedness.
WHEREAS, Section 301 of the Original Indenture provides that by means of a
supplemental indenture the Issuer may create one or more series of its debt
securities and establish the form, terms and provisions thereof.
WHEREAS, the Issuer and the Guarantor intend by this Supplemental
Indenture to (i) create a series of Issuer's debt securities, in an aggregate
principal amount equal to $100,000,000, entitled "9-1/8% Senior Notes due 2008"
(the "Notes") and (ii) establish the form and the terms and provisions of the
Notes.
WHEREAS, the Issuer and the Guarantor have 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 Supplemental Indenture shall have the meanings ascribed to them in the
Original Indenture. In addition, the following terms shall have the meanings set
forth below:
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
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"DISINTERESTED DIRECTOR" means, with respect to any transaction or series
of transactions which a majority of the Disinterested Directors of the Issuer
are required to approve under the terms of the Indenture, a member of the Board
of Directors who does not have any material direct or indirect financial
interest in or with respect to such transaction or series of transactions.
"DTC" means The Depository Trust Company.
"GLOBAL NOTE" means a single fully-registered global note in book-entry
form, without coupons, substantially in the form of Exhibit A attached hereto,
which represents the Notes.
"INDENTURE" means the Original Indenture as supplemented by this Third
Supplemental Indenture and as further amended, modified or supplemented with
respect to the Notes pursuant to the provisions of the Original Indenture.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer, unless such
Subsidiary is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of the Indenture.
"UNRESTRICTED SUBSIDIARY" means (1) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors, as provided below) and (2) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (a) neither the Issuer nor any Restricted Subsidiary is directly or
indirectly liable for any Indebtedness of such Subsidiary, (b) no default with
respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse
of time or otherwise) any holder of any other Indebtedness of the Issuer or any
other Subsidiary to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity, (c)
neither the Issuer nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Issuer and (d) neither the Issuer nor any
Restricted Subsidiary has any obligation (1) to subscribe for additional shares
of Capital Stock or other equity interest in such Subsidiary or (2) to maintain
or preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board
of Directors shall be evidenced to the Trustee by filing a Board Resolution with
the Trustee giving effect to such designation. The Board of Directors may
designate any Unrestricted Subsidiary as a Restricted Subsidiary if, immediately
after giving effect to such designation, there would be no Default under the
Indenture, and the Issuer could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 1010 of the Original Indenture.
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 "9-1/8% Senior Notes due 2008", issued pursuant to
the Indenture. The Notes shall initially be limited to an aggregate principal
amount equal to $100,000,000, subject to the exceptions set forth in Section
301(2) of the Original Indenture.
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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 Third Supplemental Indenture, and in particular, the following provisions
shall be terms of the Notes:
(a) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest payments in
respect of the Global Note will be made by the Issuer in immediately available
funds to DTC or its nominee, as the case may be, as the Holder of the Global
Note.
(b) APPLICABILITY OF GUARANTEE. The Notes will be Guaranteed Securities
pursuant to the Original Indenture, and the Guarantee endorsed on the Global
Note and the provisions set forth in Article Sixteen, Section 1601 of the
Original Indenture shall be applicable to the Notes.
(c) ADDITIONAL COVENANTS. In addition to the covenants set forth in the
Original Indenture, the Issuer and the Guarantor hereby further covenant as
follows:
(i) LIMITATION ON CONSOLIDATION, MERGER, ETC. The Issuer will not
consolidate with or merge with or into any corporation or
partnership or sell, convey, transfer, lease or otherwise dispose of
all or substantially all of its assets to any corporation or
partnership unless, after giving pro forma effect to the
consolidation, merger, sale, conveyance, transfer, lease or other
disposition, the Issuer or successor entity could incur at least
$1.00 of Indebtedness (other than Permitted Indebtedness) pursuant
to Section 1010 of the Original Indenture.
(ii) LIMITATION ON INCURRENCE OF INDEBTEDNESS. The Issuer will not
permit any Restricted Subsidiary to incur any Indebtedness other
than Permitted Indebtedness.
(iii) LIMITATION ON DISTRIBUTIONS. The Issuer will not make any
distribution, by reduction of capital or otherwise (other than
distributions payable in securities evidencing interests in the
Issuer's capital for the purpose of acquiring interests in real
property or otherwise) unless, immediately after giving pro forma
effect to such distribution, the Issuer could incur at least $1.00
of Indebtedness (other than Permitted Indebtedness) pursuant to
Section 1010 of the Original Indenture; provided, however, that the
foregoing limitation shall not apply to any distribution or other
action which is necessary to maintain the Guarantor's status as a
REIT under the Code, if the aggregate principal amount of all
outstanding Indebtedness of the Guarantor and the Issuer on a
consolidated basis at such time is less than 60% of Adjusted Total
Assets.
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Notwithstanding the foregoing, the Issuer will not be prohibited
from making the payment of any distribution within 30 days of the
declaration thereof if at such date of declaration such payment
would have complied with the provisions of the immediately preceding
paragraph.
(iv) LIMITATION ON TRANSACTIONS WITH AFFILIATES. The Issuer will
not, and will not permit any Subsidiary to, directly or indirectly,
enter into any transaction, or series of transactions, with an
Affiliate unless (1) such transaction, or series of transactions, is
on terms that are no less favorable than those available in an
arm's-length transaction with unrelated third parties, (2) with
respect to any transaction, or series of transactions, with total
consideration equal to or greater than $5.0 million, the Issuer
shall have delivered an officers' certificate certifying that such
transaction, or series of transactions, complies with clause (1)
above and such transaction, or series of transactions, has been
approved by a majority of the Disinterested Directors, or in the
case of transactions included in this clause (2) for which there are
no Disinterested Directors, the Issuer shall have obtained a written
opinion from a nationally recognized investment banking, appraisal
or other appropriate expert firm to the effect that such
transaction, or series of transactions, is fair to the Issuer or
Subsidiary from a financial point of view and (3) with respect to
any transaction or series of transactions with total consideration
in excess of $15.0 million, the Issuer shall obtain a written
opinion from a nationally recognized investment banking, appraisal
or other appropriate expert firm as described above.
(v) LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Issuer will not, and will not permit
any Restricted Subsidiary to, create or allow to exist any
encumbrance that would restrict the ability of a Restricted
Subsidiary to (1) pay dividends on Capital Stock, (2) pay
Indebtedness owed to the Issuer or any Subsidiary, (3) make loans or
advances to the Issuer or any Subsidiary, (4) transfer any property
or assets to the Issuer or any Subsidiary, or (5) guarantee any
Indebtedness of the Issuer or any Subsidiary.
(vi) LIMITATION ON SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Issuer will not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Issuer or a Restricted Subsidiary)
and shall not permit any Person (other than the Issuer or a
Subsidiary) to own any Capital Stock of any Restricted Subsidiary;
PROVIDED, HOWEVER, that the foregoing shall not prohibit the
issuance or sale of all, but not less than all, of the issued and
outstanding Capital Stock of any Subsidiary owned by the Issuer or
any Subsidiary in accordance with the other provisions of the
Indenture.
(d) COVENANT DEFEASANCE; WAIVER. The provisions of Sections 402(3)
and 1012 of the Original Indenture shall apply to the additional covenants set
forth in Section 1.4(c) hereof as if such covenants were referred to therein.
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ARTICLE TWO
TRUSTEE
Section 2.1 TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Issuer. The recitals of fact
contained herein shall be taken as the statements solely of the Issuer, and the
Trustee assumes no responsibility for the correctness thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1 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 3.2 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 3.3 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the Issuer and, with respect to the Guarantee, the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
Section 3.4 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 3.5 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.
Section 3.6 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger GP Trust, as General Partner
By: /s/ Stanley K. Tanger
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Name: Stanley K. Tanger
Title: Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Virginia R. Summerell
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Name: Virginia R. Summerell
Title: Secretary
TANGER FACTORY OUTLET CENTERS, INC.
[SEAL]
By: /s/ Stanley K. Tanger
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Name: Stanley K. Tanger
Title: Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Rochelle G. Simpson
Name: Rochelle G. Simpson
Title: Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
[SEAL]
By: /s/ Gary Dougherty
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Name: Gary Dougherty
Title: Vice President
Attest:
/s/ Paul G. Grenier
Name: Paul G. Grenier
Title: Secretary