AMENDMENT NO. 9 TO LIMITED PARTNERSHIP AGREEMENT OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP
EXHIBIT
3.14
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
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:
(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.
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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 or any Affiliate of 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;
(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
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(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.
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.
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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:
Glimcher
Properties Corporation
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Print
Name: Xxxxxxx X. Xxxxxxxx
Its:
Chairman of the Board and Chief Executive Officer
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LIMITED
PARTNERS:
By: /s/
Xxxxxxxx X. Xxxx
Print
Name: Xxxxxxxx X. Xxxx
Its:
President and Chief Operating 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/ Xxx
X. Xxxxx
Print
Name: Xxx X. Xxxxx
Its:
Senior Vice President, General
Counsel,
& Secretary
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