EXHIBIT 10.120
AMENDMENT NO. 5
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
This Amendment No. 5 dated as of March 9, 1998 (the "Amendment") to the
Limited Partnership Agreement of Glimcher Properties Limited Partnership (the
"Parnership") dated as of November 30, 1993 (the "Partnership Agreement") as
amended, by and among Glimcher Properties Corporation (the "General Partner"), a
Delaware corporation, Glimcher Realty Trust, a Maryland real estate investment
trust (the "Trust"), and the Persons who have executed the counterpart execution
pages annexed hereto (together with the Trust, the "Limited Partners") (the
General Partner and Limited Partners being each a "Partner" and collectively,
the "Partners").
WHEREAS, Xxxxx X. Xxxxxxxx has resigned as an executive officer of the
Trust;
WHEREAS, Xxxxx X. Xxxxxxxx desires to engage in certain real estate
activities which are presently prohibited with respect to him under the
Partnership Agreement;
WHEREAS, the Partners desire to amend the Partnership Agreement to remove
certain restrictions on Xxxxx X. Xxxxxxxx'x ability to engage in certain real
estate activities; and
WHEREAS, the General Partner has approved this Amendment to the Partnership
Agreement and received the Consent of the Limited Partners to such Amendment as
evidenced by their execution of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the receipt and sufficiency of
which are hereby acknowledged, the Partners agree as follows:
1. Definitions. Defined terms not defined herein shall have the
meaning given to them in the Partnership Agreement.
2. Shopping Center. The definition of the term "Shopping Center"
shall, when used as a capitalized term, mean five (5) or more stores as part of
the same retail facility.
3. Section 9.11 of the Partnership Agreement is hereby amended in its
entirety to read as follows:
Section 9.11 Acquisition Projects. Notwithstanding anything contained in
Section 9.10 hereof to the contrary, the Primary Limited Partners and/or their
Affiliates shall not, during the period (the "Restricted Period") commencing on
the date hereof and ending on the earlier of (i) January 26, 2004 and (ii) the
Restrictions Lapse Date (as defined below), acquire an equity ownership interest
in any Acquisition Project other than through their ownership interest in the
Partnership and the Trust; provided, however, that with respect to Xxxxx
Xxxxxxxx such restriction shall only apply to Acquisition Projects which involve
(x) Shopping Centers located within five (5) miles of Shopping Center owned or
managed by the Partnership or any Affiliate of the Partnership or (y) malls
located within ten (10) miles of a mall owned or managed by the Partnership or
any Affiliate of the Partnership. During the Restricted Period, the Primary
Limited Partners may, in their sole discretion, notify the General Partner of
any opportunities available to the Partnership to acquire any equity ownership
interest in an Acquisition Project to the extent such Primary Limited Partners
believe such opportunities may be appropriate for consideration by the
Partnership. Notwithstanding the preceding sentence, the Primary Limited
Partners and/or their Affiliates may not acquire an equity ownership interest in
any Acquisition Project during the Restricted Period other than through their
ownership interests in the Partnership or the Trust except that Xxxxx Xxxxxxxx
may acquire an equity ownership interest in an Acquisition Project (a) if
permitted pursuant to the first sentence of this Section 9.11 or (b) if the
Partnership declines an opportunity presented to it by Xxxxx Xxxxxxxx to acquire
such equity ownership interest in such Acquisition Project.
The "Restrictions Lapse Date" shall mean (x) with respect to Xxxxxxx
Xxxxxxxx the second anniversary of the date on which all of the following
conditions are satisfied: (i) neither Primary Limited Partner is an executive
officer or trustee of the Trust and (ii) Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx are
not (or would not be assuming such persons exercised all of their outstanding
Rights of Redemption and received Common Shares in consideration therefore), in
the aggregate, the beneficial owners of 10% or more of the outstanding Common
Shares of the Trust, and (y) with respect to Xxxxx Xxxxxxxx, upon the earlier of
(i) a Change in Control of the Trust (as defined below) or (ii) the first
anniversary of the date on which Xxxxx Xxxxxxxx ceases to be an executive
officer and trustee of the Trust. For purposes of the previous sentence, during
his lifetime, a person shall be deemed to be the beneficial owner of any Common
Shares beneficially owned by his Affiliates (including shares beneficially owned
by his Affiliates (including shares that would be owned assuming all outstanding
Rights of Redemption were exercised and Common Shares were received in
consideration therefor by such persons).
For purposes of this Amendment, a "Change in Control of the Trust" shall be
deemed to occur if:
(i) there shall have occurred a change in control of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as in effect on the date hereof, whether or
not the Trust is then subject to such reporting requirement, provided,
however, that there shall not be deemed to be a Change in Control of the
Trust if immediately prior to the occurrence of what would otherwise be a
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Change in Control of the Trust (a) Xxxxx Xxxxxxxx is the other party to the
transaction (a" Control of the Trust Event") that would otherwise result in
a Change in Control of the Trust or (b) Xxxxx Xxxxxxxx is an executive
officer, trustee, director or more than 5% equity holder of the other party
to the Control of the Trust Event or of any entity, directly or indirectly,
controlling such other party;
(ii) the Trust merges or consolidates with, or sells all or
substantially all of its assets to, another company (each, a
"Transaction"), provided, however, that a Transaction shall not be deemed
to result in a Change in Control of the Trust if (a) immediately prior
thereto the circumstances in (i) (a) or (i) (b) above exist, or (b) (1) the
shareholders of the Trust, immediately before such Transaction own,
directly or indirectly, immediately following such Transaction in excess of
two-thirds of the combined voting power of the outstanding voting
securities of the corporation or other entity resulting from such
Transaction (the "Surviving Corporation") in substantially the same
proportion as their ownership of the voting securities of the Trust
immediately before such Transaction and (2) the individuals who were
members of the Trust's Board of Trustees immediately prior to the execution
of the agreement providing for such Transaction constitute at least a
majority of the members of the board of directors or the board of trustees,
as the case may be, of the Surviving Corporation, or of a corporation or
other entity beneficially directly or indirectly owning a majority of the
outstanding voting securities of the Surviving Corporation; or
(iii) the Trust acquires assets of another company or a subsidiary of
the Trust merges or consolidates with another company (each, an "Other
Transaction") and (a) the shareholders of the Trust, immediately before
such Other Transaction own, directly or indirectly, immediately following
such Other Transaction two-thirds or less of the combined voting power of
the outstanding voting securities of the corporation or other entity
resulting from such Other Transaction (the "Other Surviving Corporation")
in substantially the same proportion as their ownership of the voting
securities of the Trust immediately before such Other Transaction or (b)
the individuals who were members of the Trust's Board of Trustees
immediately prior to the execution of the agreement providing for such
Other Transaction constitute less than a majority of the members of the
board of directors or the board of trustees, as the case may be, of the
Other Surviving Corporation, or of a corporation or other entity
beneficially directly or indirectly owning a majority of the outstanding
voting securities of the Other Surviving Corporation, provided, however,
that an Other Transaction shall not be deemed to result in a Change in
Control of the Trust if immediately prior thereto the circumstances in
(i)(a) or (i)(b) above exist.
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4. Section 9.12 of the Partnership Agreement is hereby amended in its
entirety to read as follows:
Section 9.12 Development Projects. Notwithstanding anything contained
in Section 9.11 hereof to the contrary, the Primary Limited Partners and
their Affiliates shall not, during the Restricted Period, acquire, hold,
own, develop, construct, convey or otherwise deal with any Development
Project; provided, however, that with respect to Xxxxx Xxxxxxxx such
restriction shall only apply to Development Projects which involve (x)
Shopping Centers located within five (5) miles of a Shopping Center owned
or managed by the Partnership or any Affiliate of the Partnership or (y)
malls located within ten (10) miles of a mall owned or managed by the
Partnership or any Affiliate of the Partnership. During the Restricted
Period, the Primary Limited Partners may, in their sole discretion, notify
the General Partner of any opportunities available to the Partnership to
acquire an interest in any Development Project to the extent such Primary
Limited Partners believe such opportunities may be appropriate for
consideration by the Partnership. Notwithstanding the preceding sentence,
the Primary Limited Partners and/or their Affiliates may not acquire an
equity ownership interest in any Development Project during the Restricted
Period other than through their ownership interests in the Partnership or
the Trust except that Xxxxx Xxxxxxxx may acquire an equity ownership
interest in a Development Project (a) if permitted pursuant to the first
sentence of this Section 9.11 or (b) if the Partnership declines an
opportunity presented to it by Xxxxx Xxxxxxxx to acquire such equity
ownership interest in such Development Project.
5. No Modifications. Except as herein provided the Partnership Agreement
shall remain in full force and effect without amendment or modification.
6. Counterparts. For the convenience of the Partners, any number of
counterparts hereof may be executed, and each shall counterpart shall be deemed
to be an original instrument, and all of which taken together shall constitute
one agreement.
7. Governing Law. This Agreement 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 Agreement, the
provisions of such Act shall apply to the Partnership.
8. 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 Agreement.
9. Legal Construction. In case any one or more of the provisions contained
in this Agreement 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 Agreement shall be
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construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
10. 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 plural, and all plural words shall include the
singular
11. Prior Agreements Superseded. This Agreement supersedes any prior
understandings or written or oral agreements amongst the Partners, or any of
them, respecting the within subject matter and contains the entire understanding
amongst the Partners with respect thereto.
12. No Third Party Beneficiary. The terms and provisions of this Agreement
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.
GENERAL PARTNER:
---------------
GLIMCHER PROPERTIES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
LIMITED PARTNERS:
----------------
GLIMCHER REALTY TRUST, a Maryland
Real Estate Investment Trust
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
(SEE COUNTERPART EXECUTION PAGES)
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxxx Xxxxxxxx
--------------------
Signature
Print Name: Xxxxxxx Xxxxxxxx
--------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Signature
Print Name: Xxxxxxx X. Xxxxxxx
----------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxx Xxxxx
--------------
Signature
Print Name: Xxxx Xxxxx
--------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxx Harminis
-------------------
Signature
Print Name: Xxxxxx Xxxxxxxx
-------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxx Xxxxxxxx
------------------
Signature
Print Name: Xxxxx Xxxxxxxx
------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxx Xxxxxxx
------------------
Signature
Print Name: Xxxxxx Xxxxxxx
------------------
11
COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Signature
Print Name: Xxxxxxx X. Xxxxxxxx
-----------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxx Xxxxxxxx
-------------------
Signature
Print Name: Xxxxxx Xxxxxxxx
-------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxxxx X. Xxxxxx
---------------------
Signature
Print Name: Xxxxxxx X. Xxxxxx
---------------------
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COUNTERPART EXECUTION PAGE OF
LIMITED PARTNER TO AMENDMENT TO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
The undersigned, by executing this page, agrees to all of the terms,
provisions and conditions of the Amendment to Glimcher Properties Limited
Partnership Limited Partnership Agreement dated as of March 9, 1998, and agrees
to be bound thereby.
/s/ Xxxxx Xxxxxxxx
------------------
Signature
Print Name: Xxxxx Xxxxxxxx
------------------
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