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Exhibit 3.8
AMENDMENT NO. 3
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
This Amendment No. 3 is made effective as of November __, 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 contemplation of a public offering of a new series of preferred
shares of beneficial interest designated "Series B Preferred Shares" (as defined
below) by Glimcher Realty Trust (the "Trust"), the Partnership and the Trust
have entered into an Underwriting Agreement dated as of November 12, 1997 (the
"Underwriting Agreement") with Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Prudential
Securities Incorporated, BT Alex. Xxxxx Incorporated and PaineWebber
Incorporated (collectively, the "Underwriter"). Capitalized terms not otherwise
defined herein or in the Partnership Agreement shall have the meanings ascribed
to them in the Underwriting Agreement.
2. Pursuant to the Underwriting Agreement, the Underwriter has agreed to
purchase Series B Preferred Shares of the Trust, having an aggregate initial
Liquidation Preference not to exceed $115.4 million ($132.8 million if the
Underwriter's over-allotment option is exercised), for the purposes and upon the
terms and conditions set forth therein, with the proceeds from each such series
to be contributed by the Trust to the Partnership in exchange for a series of
Preferred Interests in the Partnership.
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 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
such issued shares of beneficial interest of the Trust.
4. Pursuant to Section 18.2(iii) of the Partnership Agreement, the Trust,
as general partner of the Partnership (in such capacity, the "General Partner")
has the power, without the consent of the limited partners of the Partnership,
to amend the Partnership Agreement with respect to the issuance of additional
interests in the Partnership 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 of the
Partnership for purposes, inter alia, of effecting amendments to the Partnership
Agreement adopted in accordance with Section 18.
6. In connection with Amendment No. 1 to the Securities Purchase Agreement,
dated as of November 10, 1997, among the Partnership, the Trust and Partnership
Acquisition Trust II, a Delaware business trust and an affiliate of Nomura Asset
Capital Corporation (i) the Trust has agreed to exchange any and all of its
outstanding Series A Convertible Preferred
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Shares of Beneficial Interest (the "Series A Preferred Shares") in the Trust for
an equal amount of Series A-1 Convertible Preferred Shares of Beneficial
Interest (the "Series A-1 Preferred Shares") in the Trust and (ii) the
Partnership and the Trust have agreed to exchange all issued and outstanding
Series A Preferred units of limited partnership interest (the "Series A
Preferred Units") in the Partnership for an equal number of a new series of
preferred units of limited partnership interest in the Partnership designated
"Series A-1 Preferred Units," the economic terms of which will be identical to
the Series A-1 Preferred Shares.
Amendment
NOW, THEREFORE, the Partnership Agreement is hereby amended as set forth in
this Amendment No. 3.
1. Creation and Issuance of Series B Preferred Interests.
(a) Upon the issuance by the Trust pursuant to the Underwriting Agreement
of the Series B 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 (a "Series B
Preferred Interest") having the same rate of return and other terms as
designated in the applicable Articles Supplementary of the Series B Preferred
Shares; provided, that the aggregate Preferred Contribution (as defined below)
for all Series B Preferred Interests issued pursuant to this Amendment No. 3
shall not exceed $115.4 million ($132.8 million if the Underwriters'
over-allotment option is exercised). Units of Series B Preferred Interest shall
be evidenced by a Certificate of Series B Preferred Limited Partner Interest in
the form attached as Exhibit A.
(b) There is hereby created and designated a series of non-voting preferred
limited partner interest known as the Series B Preferred Interest consisting of
5,520,000 Units which shall correspond to 5,520,000 shares of Series B Preferred
Shares (the "Series B Preferred Shares"). On the date hereof, 4,800,000 Units of
Series B Preferred Interest are hereby issued to the Trust contemporaneously
with the 4,800,000 Series B Preferred Shares being issued pursuant to the
Underwriting Agreement.
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2. Preferred Contribution; Preferred Return.
(a) Simultaneously with each sale of Series B Preferred Shares under the
Underwriting Agreement, the Trust shall contribute all of the proceeds of such
sale received by the Trust to the Partnership in consideration of the issuance
of the related equal number of Units of Series B Preferred Interest.
Notwithstanding the foregoing, for the purposes of this Agreement, the amount of
such contribution shall be deemed to be an amount equal to the gross proceeds of
such sale (the "Preferred Contribution").
(b) The Trust shall be entitled to receive, and the Partnership shall pay,
a distribution (the "Series B Preferred Return") on each Unit of a Series B
Preferred Interest equal to the return applicable to each share of the related
Series B Preferred Shares under the Articles Supplementary. To the extent that
any Series B Preferred Return is not paid when due, such amount shall accrue on
the same terms and conditions as distributions on the applicable Series B
Preferred Shares under the Articles Supplementary. The Series B Preferred Return
shall be due in the same amounts and on the same dates as distributions on the
applicable Series B Preferred Shares are due under the Articles Supplementary.
For purposes hereof, no effect shall be given to (i) the fact that the Series B
Preferred Shares may have been cancelled or (ii) any amendment or modification
of the Articles Supplementary.
3. Capital Account; Allocations. A separate Capital Account shall be
established and maintained with respect to the Series B 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.
4. Distributions.
(a) In the event of liquidation and dissolution of the Partnership, the
holder of any Series B Preferred Interest then outstanding shall be entitled to
receive, prior to distributions to Partners pursuant to Section 15.2 of the
Partnership Agreement and prior to distributions to Partners on Units of
non-voting Series A-1 preferred limited partner interests, an amount equal to
the Liquidation Preference plus accrued and unpaid dividends which would be
payable under the applicable Articles Supplementary to the holder of an equal
amount of the Series B Preferred Shares if on the date of dissolution of the
Partnership the Trust were to dissolve and liquidate.
(b) Except as expressly provided herein, the holders of any Series B
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.
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5. Redemption and Other Terms.
(a) In the event of any redemption by the Trust of all or any portion of
the Series B Preferred Shares pursuant to the Articles Supplementary, an equal
portion of the Series B Preferred Interest shall be redeemed on the same basis
as such Series B Preferred Shares and permanently retired and cancelled for all
purposes.
(b) Upon any other return to the Trust or other holder of a Series B
Preferred Interest of the Preferred Contribution with respect to all or any
portion of such Series B Preferred Interest (whether in cash or Series B
Preferred Shares), together with payment of any accrued and unpaid Preferred
Return applicable thereto, such Series B Preferred Interest shall to such extent
be permanently retired and cancelled for all purposes.
6. Investment Representations; Transfer Restrictions.
(a) The Trust represents and warrants to the Partnership that (i) it is
acquiring the Series B 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 B 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 B
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 B Preferred Interests 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 B Preferred Interest (or any interest therein) except pursuant to 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 B Preferred Interest shall
bear an appropriate legend reflecting the foregoing restrictions on transfer of
the Series B Preferred Interest.
7. Creation and Issuance of Series A-1 Preferred Interests. From and after
the date of issuance of the Series A-1 Preferred Shares in exchange for the
Series A Preferred Shares, all references contained in Amendment No. 2 to the
Partnership Agreement to the Series A Preferred Shares shall be deemed to refer
to the Series A-1 Preferred Shares.
8. 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, assignments, affidavits, notices, agreements,
consents, certificates and other documents, and (ii) take all such further and
other actions as the General Partner shall deem necessary, advisable or
appropriate to carry out the transactions contemplated in this Amendment No. 3.
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9. Construction; Limited Partnership Agreement. Consistent with
Section 6.3(b) of the Partnership Agreement, it is intended that the economic
interests of the Series B Preferred Interest shall be substantially similar to
the Series B Preferred Shares, and this Amendment No. 3 shall be construed as
reasonably required with respect to the preferences and rights of the Series B
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 Partners and the Limited Partners have
executed this Amendment No. 3 effective as of the date first set forth above.
GENERAL PARTNER: LIMITED PARTNERS:
Glimcher Properties Corporation Glimcher Realty Trust
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Sr. V.P., Gen. Counsel & Secretary Title: Sr. V.P., Gen. Counsel & Sec'y.
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All Other Limited Partners
By: Glimcher Properties
Corporation, pursuant to power of
attorney set forth in Section 16 of the
Partnership Agreement
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Sr. V.P., Gen. Counsel & Sec'y
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Exhibits
Exhibit A - Form of Certificate of Preferred Limited Partner Interest
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Exhibit A
[Form of]
CERTIFICATE
OF
UNITS OF SERIES ___ PREFERRED
LIMITED PARTNER INTEREST
IN
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
Certificate No.: ___ No. of Units: ____
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 _________ (___)
Units of Series ___ 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, (ii) Amendment No. 2 to Limited Partnership Agreement dated as of
November 26, 1996 and (iii) Amendment No. 3 to Limited Partnership Agreement
dated as of November __, 1997 (collectively, the "Agreement"), copies of which
are on file at the Company's principal office at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000.
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: , 1997 By:
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Its:
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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.
