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Exhibit 3.9
AMENDMENT NO. 4
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
This Amendment No. 4 is made effective as of December 4, 1997 by the
General Partner and the Limited Partners of Glimcher Properties Limited
Partnership, a Delaware limited partnership (the "Partnership").
RECITALS
1. The Partnership was organized pursuant to a Limited Partnership
Agreement dated as of November 30, 1993, as previously amended (the "Partnership
Agreement"). In furtherance of its business and purpose the Partnership and
Glimcher Realty Trust (the "Trust") have entered into a Securities Purchase
Agreement dated as of December 4, 1997 (the "SPA") with Partnership Acquisition
Trust II, a Delaware business trust ("Purchaser"). Capitalized terms not
otherwise defined herein or in the Partnership Agreement shall have the meanings
ascribed to them in the SPA.
2. Pursuant to the SPA, Purchaser has agreed to purchase Series C Preferred
Shares of the Trust, having an aggregate initial Liquidation Preference not to
exceed $56,000,000, for the purposes and upon the terms and conditions set forth
therein, with the proceeds from such series to be contributed (i) by the Trust
to the Partnership in exchange for a series of Preferred Interest in the
Partnership, (ii) by the Partnership to the GRT LLC in exchange for a preferred
interest therein, and (iii) by the GRT LLC to the Property Level LLC in exchange
for a preferred interest therein.
3. Pursuant to Section 6.3(b) of the Partnership Agreement, upon
contribution to the Partnership by the Trust of the proceeds from the issuance
of Preferred Shares of beneficial interest in the Trust, the Partnership shall
issue to the Trust an interest in the Partnership having designations,
preferences and rights such that the economic interests thereof are
substantially similar to the Preferred Shares.
4. Pursuant to Section 18.2(iii) of the Partnership Agreement, the General
Partner has the power, without the consent of the Limited Partners, to amend the
Partnership Agreement with respect to the issuance of additional Partnership
Interests such as those contemplated herein.
5. Pursuant to Section 16 of the Partnership Agreement, the General Partner
has been appointed as attorney-in-fact by each of the Limited Partners for
purposes, inter alia, of effecting amendments to the Partnership Agreement
adopted accordance with Section 18.
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AMENDMENT
NOW, THEREFORE, the Partnership Agreement is hereby amended as set forth in
this Amendment No. 4.
1. Creation and Issuance of Preferred Interest.
(a) Upon the issuance by the Trust pursuant to the SPA of the Series C
Preferred Shares, the Partnership is authorized, through the sole action of the
General Partner on its behalf, to create, designate and issue units ("Units") of
non-voting preferred limited partner interest (the "Series C Preferred
Interest") having the same rate of return and other terms as designated in the
Articles Supplementary creating the Series C Preferred Shares; provided, that
the aggregate Preferred Contribution (as defined below) for the Series C
Preferred Interest issued pursuant to this Amendment No. 4 shall not exceed
$56,000,000. Units of Series C Preferred Interest shall be evidenced by a
Certificate of Series C Preferred Limited Partner Interest in the form attached
as Exhibit A.
(b) There is hereby created and designated a series of Preferred Interest
known as the Series C Preferred Interest, consisting of 56,000 Units which shall
correspond to 56,000 shares of Series C Convertible Preferred Shares (the
"Series C Preferred Shares"). On the date hereof 56,000 Units of Series C
Preferred Interest are hereby issued to the Trust contemporaneously with 56,000
Series C Preferred Shares being issued pursuant to the SPA.
2. Preferred Contribution; Preferred Return.
(a) Simultaneously with the sale of Series C Preferred Shares under the
SPA, the Trust shall contribute an amount equal to the gross proceeds of such
sale (the "Preferred Contribution") to the Partnership in consideration of the
issuance of the Series C Preferred Interest.
(b) The Trust shall be entitled to receive, and the Partnership shall pay,
a return (the "Series C Preferred Return") on each Unit of Series C Preferred
Interest equal to the return applicable to each share of Series C Preferred
Shares under the Articles Supplementary. To the extent that any Series C
Preferred Return is not paid when due, the same shall accrue and compound on the
same terms and conditions as dividends on the Series C Preferred Shares accrue
and compound under the Articles Supplementary. The Series C Preferred Return
shall be due in the same amounts on the same dates as dividends on the Series C
Preferred Shares are due under the Articles Supplementary. For purposes hereof,
no effect shall be given to (i) the fact that Series C Preferred Shares may have
been canceled (except through conversion as provided in Section 6 below) or (ii)
any amendment or modification of the Articles Supplementary.
3. Application of Preferred Contribution. The gross amount of Preferred
Contribution received in respect of the Series C Preferred Interest shall be
contributed by the Partnership to the GRT LLC in exchange for a preferred
interest therein, and the Partnership shall cause the GRT LLC in turn directly
or indirectly to contribute such amount to the Property Level LLC in exchange
for a preferred interest therein.
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4. Capital Account: Allocations. A separate Capital Account shall be established
and maintained with respect to the Series C Preferred Interest, with adjustments
thereto and other allocations of Partnership items made consistent with the
Regulations and the advice of the Partnership's independent accountants.
5. Distributions.
(a) Notwithstanding any provision of the Partnership Agreement, (i) any
cash received by the Partnership as a distribution from the GRT LLC which was
received by such GRT LLC from the Property Level LLC as a distribution of Net
Cash Flow from Operations (as defined in the Operating Agreement of the Property
Level LLC) shall be applied when received to the payment of any amounts due and
owing on account of the Preferred Return with respect to the Series C Preferred
Interest, and (ii) any cash (or Series C Preferred Shares) received by the
Partnership as a distribution from the GRT LLC which was received by the GRT LLC
from the Property Level LLC as a distribution of Proceeds from Capital
Transactions (as defined in the Operating Agreement of such Property Level LLC),
or following termination and liquidation of such Property Level LLC, shall be
applied when received to the return of the Preferred Contribution, together with
any accrued and unpaid Preferred Return, with respect to the Series C Preferred
Interest. Each Series C Preferred Share distributed hereunder shall be deemed to
have a fair market value equal to its Liquidation Preference plus accrued and
unpaid dividends as determined pursuant to the Articles Supplementary.
(b) In the event any amount received by the Partnership from the GRT LLC as
Cash Flow from Operations or Proceeds from Capital Transactions and
distributable to the holder of any Series C Preferred Interest pursuant to
Section 5.1(a) is less than the amount then required to be paid by the Trust to
the holder of the Series C Preferred Shares, an amount equal to such deficiency
shall be distributed to the holder of such Series C Preferred Interest prior to
any distributions to Partners pursuant to Article 8 of the Partnership
Agreement.
(c) In the event of liquidation and dissolution of the Partnership, the
holder of any Series C Preferred Interest then outstanding shall be entitled to
receive, prior to distributions to Partners pursuant to Section 15.2 of the
Partnership Agreement, an amount equal to the Liquidation Preference plus
accrued and unpaid dividends which would be payable under the Articles
Supplementary to the holder of an equal amount of Series C Preferred Shares if
on the date of dissolution of the Partnership the Trust were to dissolve and
liquidate.
(d) Except as expressly provided herein, the holders of Series C Preferred
Interests shall not be entitled to participate in any other distributions made
by the Partnership pursuant to Section 8, Section 15 or otherwise under the
Partnership Agreement.
6. Conversion Rights and Other Terms.
(a) Pursuant to Section 6.3(b) of the Partnership Agreement, in the event
all or any portion of the Series C Preferred Shares are converted into Common
Shares of the Trust pursuant
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to the terms of the Series C Preferred Shares, an equal portion of the Series C
Preferred Interest shall be converted into 0. P. Units on the same basis as the
Series C Preferred Shares are converted into Common Shares, and such Series C
Preferred Interest shall to such extent be permanently retired and canceled for
all purposes.
(b) In the event of any redemption by the Trust of all or any portion of
the Series C Preferred Shares pursuant to the Articles Supplementary, an equal
portion of Series C Preferred Interest shall be redeemed on the same basis as
such Series C Preferred Shares and permanently retired and canceled for all
purposes.
(c) Upon any other return to the Trust or other holder of Series C
Preferred Interest of the Preferred Contribution with respect to all or any
portion of such Series C Preferred Interest (whether in cash or Series C
Preferred Shares), together with payment of any accrued and unpaid Preferred
Return applicable thereto, such Series C Preferred Interest shall to such extent
be permanently retired and canceled for all purposes.
7. Collateral Assignment of Preferred Interest. It is acknowledged and agreed
that the Series C Preferred Interest will be pledged to the purchaser of the
Series C Preferred Shares pursuant to a Collateral Assignment of Preferred
Partnership Interest (the "Collateral Assignment") for the purpose of securing
certain obligations of the Trust under the SPA.
8. Investment Representations; Transfer Restrictions.
(a) The Trust represents and warrants to the Partnership that (i) it is
acquiring the Series C Preferred Interest for its own account for investment and
not with a view towards the resale, transfer or distribution thereof, nor with
any present intention of distributing the Series C Preferred Interest, (ii) it
is an "accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act, and (iii) it understands that the issuance of the Series C
Preferred Interest is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) thereof and Rule 506 thereunder, and
that the Series C Preferred Interest will be "restricted securities" as defined
in Rule 144 under the Securities Act.
(b) The Trust covenants that it will not sell or otherwise transfer the
Series C Preferred Interest (or any interest therein) except pursuant to (i) the
Collateral Assignment, or (ii) an effective registration under the Securities
Act or in a transaction which, in the opinion of counsel in such form and by
such counsel satisfactory to the Partnership, qualifies as an exempt transaction
under the Securities Act and the rules and regulations promulgated thereunder.
(c) The certificates evidencing Units of Series C Preferred Interest shall
bear an appropriate legend reflecting the foregoing restrictions on transfer of
the Series C Preferred Interest.
9. Additional Documents and Actions. The General Partner is expressly authorized
on behalf of the Partnership to (i) execute and deliver all such other
instruments, assignments, affidavits, notices, agreements, consents,
certificates and other documents, and (ii) take all such further and
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other actions, as the General Partner shall deem necessary, advisable or
appropriate to carry out the transactions contemplated in this Amendment No. 4.
10. Construction; Limited Partnership Agreement. Consistent with Section 6.3(b)
of the Partnership Agreement, it is intended that the economic interests of the
Series C Preferred Interest shall be substantially similar to the Series C
Preferred Shares, and this Amendment No. 4 shall be construed as reasonably
required with respect to the preferences and rights of the Series C Preferred
Interest to give effect to such intent. Except as expressly provided herein or
as so reasonably required to give effect to the provisions hereof, the terms of
the Partnership Agreement shall remain in full force and effect and are hereby
ratified and confirmed.
IN WITNESS WHEREOF, the General Partner and the Limited Partners have
executed this Amendment No. 4 effective as of the date first set forth above.
GENERAL PARTNER: LIMITED PARTNERS:
Glimcher Properties Corporation Glimcher Realty Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Title: Senior Vice President
All Other Limited Partners:
By: Glimcher Properties Corporation,
pursuant to power of attorney set forth in
Section 16 of the Partnership Agreement
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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CERTIFICATE
OF
UNITS OF SERIES C PREFERRED
LIMITED PARTNER INTEREST
IN
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
Certificate No: 1 No. of Units: 56,000
Glimcher Properties Corporation, as General Partner of Glimcher Properties
Limited Partnership, a Delaware limited partnership (the "Company"), hereby
certifies that GLIMCHER REALTY TRUST is the registered owner of Fifty-Six
Thousand (56,000) Units of Series C Preferred Limited Partner Interest in the
Company. The rights, preferences and limitations of the Units are set forth in
(i) the Company's Limited Partnership Agreement dated November 30, 1993, as
previously amended, and (ii) Amendment No. 4 to Limited Partnership Agreement
dated as of December 4, 1997, (collectively, the "Agreement"), copies of which
are on file at the Company's principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
This Certificate and the Units evidenced hereby are not transferable except
in accordance with the terms of the Agreement and applicable federal and state
securities laws.
Glimcher Properties Corporation,
General Partner
Dated: December 4, 1997 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Senior Vice President
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND, ACCORDINGLY, MAY NOT BE OFFERED FOR SALE, SOLD,
ASSIGNED, OR OTHERWISE TRANSFERRED EXCEPT (I) UPON EFFECTIVE REGISTRATION OF THE
SECURITIES REPRESENTED HEREBY UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES LAWS, OR (II) UPON ACCEPTANCE BY THE ISSUER OF AN OPINION OF
COUNSEL IN SUCH FORM AND BY SUCH COUNSEL OR OF OTHER DOCUMENTATION SATISFACTORY
TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED.
