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Exhibit 3.7
AMENDMENT NO. 2
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
This Amendment No. 2 is made effective as of November 26, 1996 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 November 26, 1996 (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 one or more series
of Preferred Shares of the Trust, having an aggregate initial Liquidation
Preference not to exceed $135,000,000, for the purposes and upon the terms and
conditions set forth therein, with the proceeds from each such series to be
contributed (i) by the Trust to the Partnership in exchange for a series of
Preferred Interests in the Partnership, (ii) by the Partnership to a GRT LLC in
exchange for a preferred interest therein, and (iii) directly or indirectly by
the GRT LLC to a 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,
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of effecting amendments to the Partnership Agreement adopted in accordance with
Section 18.
AMENDMENT
NOW, THEREFORE, the Partnership Agreement is hereby amended as set forth in
this Amendment No. 2.
1. Creation and Issuance of Preferred Interests.
(a) Upon the issuance by the Trust pursuant to the SPA of a series of
Preferred Shares, the Partnership is authorized, through the sole action of the
General Partner on its behalf, to create, designate and issue a series of units
("Units") of non-voting preferred limited partner interest (a "Preferred
Interest") having the same rate of return as such series of Preferred Shares
pursuant to the applicable Articles Supplementary; provided, that the aggregate
Preferred Contribution (as defined below) for all Preferred Interests issued
pursuant to this Amendment No. 2 shall not exceed $135,000,000. Each issuance of
Units of a series of Preferred Interest shall be evidenced by a Certificate of
Preferred Limited Partner Interest in the form attached as Exhibit A.
(b) There is hereby created and designated an initial series of Preferred
Interest (the "Series A Preferred Interest"), consisting of 40,000 Units which
shall correspond to 40,000 shares of Series A Convertible Preferred Shares (the
"Series A Preferred Shares"). On the date hereof 34,000 Units of Series A
Preferred Interest are hereby issued to the Trust contemporaneously with 34,000
Series A Preferred Shares being issued pursuant to the SPA, the proceeds of
which will be used to finance acquisition, construction and development of the
first phase of Great Plains MetroMall (the "Kansas Mall") in Olathe, Kansas by
Great Plains MetroMall LLC, a Property Level LLC ("Kansas LLC"), in which the
NACC Member will be Partnership Acquisition Trust III, a Delaware business trust
and the GRT LLC Member will be Olathe Mall LLC ("GRT Kansas LLC"). The GRT
Kansas LLC Operating Agreement is attached as Exhibit B. The Kansas LLC
Operating Agreement is attached as Exhibit C. Additional Units of Series A
Preferred Interest shall be issued by the Partnership contemporaneously with any
issuance by the Trust of additional Series A Preferred Shares in connection with
the acquisition, construction and development of additional phases of the Great
Plains MetroMall.
(c) The creation, designation and issuance of a series of Preferred
Interest (other than the Series A Preferred Interest) with respect to a related
series of Preferred Shares shall be evidenced by a Supplement to this Amendment
No. 1 in the form attached hereto as Exhibit D, to be executed and delivered by
the General Partner on behalf of the Partnership.
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2. Preferred Contribution; Preferred Return.
(a) Simultaneously with each sale of Preferred Shares of any series 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 related Preferred Interest.
(b) The Trust shall be entitled to receive, and the Partnership shall pay,
a return (the "Preferred Return") on each Unit of a series of Preferred Interest
equal to the return applicable to each share of the related series of Preferred
Shares under the Articles Supplementary. To the extent that any Preferred Return
is not paid when due, the same shall accrue and compound on the same terms and
conditions as dividends on the applicable Preferred Shares accrue and compound
under the Articles Supplementary. The Preferred Return for any Preferred
Interest shall be due in the same amounts on the same dates as dividends on the
applicable Preferred Shares are due under the Articles Supplementary. For
purposes hereof, no effect shall be given to (i) the fact that the 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 any Preferred Interest shall be contributed
by the Partnership to the applicable 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 applicable Property Level LLC in
exchange for a preferred interest therein.
4. Capital Account; Allocations. A separate Capital Account shall be established
and maintained with respect to each series of 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 a GRT LLC which was
received by such GRT LLC from the related Property Level LLC as a distribution
of Net Cash Flow from Operations (as defined in the Operating Agreement of such
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 related
Preferred Interest, and (ii) any cash (or Preferred Shares) received by the
Partnership as a distribution from a GRT LLC which was received by such GRT LLC
from the related Property Level LLC as a distribution of Proceeds from Capital
Transactions (as defined in the Operating Agreement
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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 related Preferred Interest. Each 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
applicable Articles Supplementary.
(b) In the event any amount received by the Partnership from a GRT LLC as
Cash Flow from Operations or Proceeds from Capital Transactions and
distributable to the holder of any 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 related series of Preferred Shares, an amount equal to such deficiency shall
be distributed to the holder of such 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 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 applicable Articles Supplementary to
the holder of an equal amount of the related series of 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 any 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 a series of Preferred Shares is converted into Common
Shares of the Trust pursuant to the terms of such Preferred Shares, an equal
portion of the related series of Preferred Interest shall be converted into O.
P. Units on the same basis as the Preferred Shares are converted into Common
Shares, and such 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
any series of Preferred Shares pursuant to the Articles Supplementary, an equal
portion of the related series of Preferred Interest shall be redeemed on the
same basis as such Preferred Shares and permanently retired and canceled for all
purposes.
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(c) Upon any other return to the Trust or other holder of a Preferred
Interest of the Preferred Contribution with respect to all or any portion of
such Preferred Interest (whether in cash or Preferred Shares), together with
payment of any accrued and unpaid Preferred Return applicable thereto, such
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 each Preferred Interest will be pledged to the purchaser of the related
series of 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 Preferred Interests 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 Preferred Interests, (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 Preferred
Interests 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 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
Preferred Interests (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 Preferred Interest shall bear an
appropriate legend reflecting the foregoing restrictions on transfer of the
Preferred Interests.
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 other
actions, as the General Partner shall deem necessary, advisable or appropriate
to carry out the transactions contemplated in this Amendment No. 2.
10. Construction; Limited Partnership Agreement. Consistent with Section 6.3(b)
of the Partnership Agreement, it is intended
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that the economic interests of any series of Preferred Interest shall be
substantially similar to the related series of Preferred Shares, and this
Amendment No. 2 shall be construed as reasonably required with respect to the
preferences and rights of such 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. 2 effective as of the date first set forth above.
GENERAL PARTNER: LIMITED PARTNERS:
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Glimcher Properties Corporation Glimcher Realty Trust
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Sr. Vice President Title: Sr. Vice President
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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. Vice President
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EXHIBITS
Exhibit A - Form of Certificate of Preferred Limited Partner Interest
Exhibit B - GRT Kansas LLC Operating Agreement
Exhibit C - Kansas LLC Operating Agreement
Exhibit D - Form of Supplement
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