EXHIBIT 10.124
AMENDMENT NO. 9
TO LIMITED PARTNERSHIP AGREEMENT OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
This Amendment No. 9 is made effective as of May 9, 2008 (the "Effective
Date") by the General Partner (defined below) and the Limited Partners of
Glimcher Properties Limited Partnership, a Delaware limited partnership (the
"Partnership").
RECITALS
1. The Partnership is governed pursuant to a Limited Partnership Agreement
dated as of November 30, 1993, as previously amended and supplemented (the
"Partnership Agreement").
2. The Partnership Agreement requires Glimcher Properties Corporation, the
sole general partner of the Partnership (the "General Partner"), to, among other
actions, obtain the written consent of a majority of the Limited Partners of the
Partnership prior to taking certain actions on behalf of the Partnership.
3. Pursuant to Section 18.1 of the Partnership Agreement, the General
Partner has the power to amend the Partnership Agreement without the Consent of
the Limited Partners, provided the Limited Partners (excluding the limited
partnership holdings of Glimcher Realty Trust), as of the effective date and
time of the amendment, own, in the aggregate, less than ten percent (10%) of the
Partnership Interests.
4. As of the Effective Date, the Limited Partners (excluding the limited
partnership holdings of Glimcher Realty Trust) held 7.327% of the Partnership
Interests.
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 of the
Partnership for purposes, inter alia, of signing amendments to the Partnership
Agreement adopted in accordance with Section 18 of the Partnership Agreement.
6. Capitalized terms not defined herein shall have the meaning given to
them in the Partnership Agreement.
AMENDMENTS
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NOW, THEREFORE, the Partnership Agreement is hereby amended as set forth in
this Amendment No. 9.
1. The paragraph immediately following Section 9.2(b)(iv) of the
Partnership Agreement shall be deleted in its entirety and shall be of no
further effect.
2. Section 9.2(b) of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
(b) The General Partner may take any of the following actions:
(i) amend, modify or terminate this Agreement, except as
otherwise provided herein;
(ii) make a general assignment for the benefit of creditors or
appoint or acquiesce in the appointment of a custodian, receiver or
trustee for all or any part of the assets of the Partnership;
(iii) institute any proceeding on behalf of the Partnership under
Title 11 of the United States Code, as the same may be amended from
time to time; or
(iv) provided the Consent of the Limited Partners holding a
majority of the Limited Partnership Interests has been obtained,
dissolve the Partnership.
3. Section 12.2(a) of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
(a) The General Partner may withdraw from the Partnership or transfer all
or any portion of its interest in the Partnership without obtaining the
Consent of the Limited Partners. Upon any transfer of the entire General
Partnership Interest in accordance with the provisions of this Section
12.2(a), the transferee General Partner shall become a substituted General
Partner, vested with the powers and rights of the transferor General
Partner, and shall be liable for all obligations and responsible for all
duties of the General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm
the agreement of such transferee to be bound by all the terms and
conditions of this Agreement with respect to the Partnership Interest so
acquired. It is a condition to any transfer otherwise permitted hereunder
that the transferee General Partner assumes by operation of law or express
agreement all of the obligations of the transferor General Partner under
this Agreement with respect to such transferred Partnership Interest and no
such transfer (other than pursuant to a statutory merger or consolidation
wherein all obligations and liabilities of the transferor General Partner
are assumed by a successor by operation of law) shall relieve the
transferor General Partner of its obligations under this Agreement.
4. Section 12.2(b) of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
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(b) The General Partner may engage in any merger, consolidation or other
combination with or into another Person or any sale of all or substantially
all of its assets, or any reclassification, recapitalization or change of
outstanding Common Shares ("Transaction"), without obtaining the Consent of
the Limited Partners to effect the Transaction.
5. Section 15.1(c) of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
(c) an election to dissolve the Partnership made by the General Partner;
6. Section 15.1(f) of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
(f) the sale of all or substantially all of the assets and properties of
the Partnership, unless the General Partner elects to continue the
Partnership business for the purpose of the receipt and the collection of
indebtedness or the collection of other consideration, to be received in
exchange for the assets of the Partnership (which activities shall be
deemed to be part of the winding up of the Partnership); or
7. Section 18 of the Partnership Agreement is hereby deleted in its
entirety and replaced by the following:
18. Amendment of Agreement.
18.1 Except as provided in Section 18.3 hereof, this Agreement may be
amended by the General Partner.
18.2 Without limiting Section 18.1 hereof, the General Partner shall
have the power, without the consent of the Limited Partners, to amend
this Agreement as may be required to facilitate or implement any of
the following purposes:
(i) to add to the obligations of the General Partner or surrender
any right or power granted to the General Partner of any Affiliate or
the General Partner for the benefit of the Limited Partners;
(ii) to reflect the admission, substitution, termination, or
withdrawal of Partners in accordance with this Agreement;
(iii) to set forth the rights, powers, duties and preferences of
the holders of any additional Partnership Interests issued pursuant to
Section 6.4 hereof;
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(iv) to reflect a change that is of an inconsequential nature and
does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any provision
in this Agreement not inconsistent with law or with other provisions,
or make other changes with respect to matters arising under this
Agreement that will not be inconsistent with law or with the
provisions of this Agreement; and
(v) to satisfy any requirements, conditions or guidelines
contained in any order, directive, opinion, ruling or regulation of a
Federal or state agency or contained in Federal or state law.
The General Partner will provide notice to the Limited Partners
when any action under this Section 18.2 is taken.
18.3 Notwithstanding Section 18.1 hereof, this Agreement shall not be
amended without the consent of each Partner adversely affected if such
amendment would (i) convert a Limited Partner's interest in the
Partnership into a general partner's interest, (ii) modify the limited
liability of a Limited Partner, (iii) alter the allocations specified
in Section 7 hereof (except as permitted pursuant to Section 6.4 and
Section 18.2(iii) hereof) or the rights of the Partner to receive
distributions pursuant to Section 8 hereof, (iv) alter or modify the
Limited Partner's rights under Section 17 hereof, or (v) amend this
Section 18.3. Further, no amendment may alter the restrictions on the
General Partner's authority set forth in Section 9.2(a) hereof,
without the consent of all the Partners.
8. No Modifications. Except as herein provided, the Partnership Agreement
shall remain in full force and effect without amendment or modification.
9. Counterparts. For the convenience of the signatories hereto, this
Amendment No. 9 may be executed in counterparts and each such counterpart shall
be deemed to be an original instrument, all of which taken together shall
constitute one instrument.
10. Governing Law. This Amendment No. 9 shall be governed by the laws of
the State of Delaware, without regard to the principles of conflicts of law.
Except to the extent the Act is inconsistent with the provisions of this
Amendment No. 9, the provisions of such Act shall apply to the Partnership.
11. Other Instruments. The partners hereto covenant and agree that they
will execute such other and further instruments and documents as, in the opinion
of the General Partner, are or may become necessary or desirable to effectuate
and carry out this Amendment No. 9.
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12. Legal Construction. In case any one or more of the provisions contained
in this Amendment No. 9 shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this Amendment No. 9 shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
13. Gender. Whenever the context shall so require, all words herein in any
gender shall be deemed to include the masculine, feminine or neuter gender, all
singular words shall include the plural, and all plural words shall include the
singular.
14. Prior Amendments Superseded. This Amendment No. 9 supersedes any prior
understandings or written or oral agreements amongst the Partners, or any of
them, respecting the within subject matter of this instrument and contains the
entire understanding amongst the Partners with respect thereto.
15. No Third Party Beneficiary. The terms and provisions of this Amendment
No. 9 are for the exclusive use and benefit of the General Partner and Limited
Partners and shall not inure to the benefit of any other Person.
IN WITNESS WHEREOF, the General Partner and the Limited Partners have
executed this Amendment No. 9 effective as of the Effective Date.
GENERAL PARTNER: LIMITED PARTNERS:
Glimcher Properties Corporation Glimcher Realty Trust
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Chairman of the Board and Chief Its: President and Chief Operating
Executive Officer Officer
All Other Limited Partners:
By: Glimcher Properties Corporation,
pursuant to power of attorney set
forth in Section 16 of the
Partnership Agreement
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇ ▇. ▇▇▇▇▇
Its: Senior Vice President, General
Counsel, & Secretary
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