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EXHIBIT 4.4
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1 dated as of November 6, 1997 to the SECURITIES
PURCHASE AGREEMENT dated as of November 26, 1996, as supplemented (as modified,
supplemented or amended from time to time, the "Securities Purchase Agreement"),
among Partnership Acquisition Trust II, a Delaware business trust (together with
its successors and assigns, the "Purchaser"), Glimcher Realty Trust, a Maryland
real estate trust (together with its permitted successors and assigns, "GRT"),
and Glimcher Properties Limited Partnership, a Delaware limited partnership
(together with its successors and assigns, "GPLP"). Capitalized terms not
otherwise defined in this Amendment have the meanings given to them in the
Securities Purchase Agreement.
RECITALS
GRT has previously issued to Purchaser 34,000 Series A Preferred
Shares.
GRT has requested NACC to subordinate the Series A Preferred Shares
and all other Preferred Shares to be issued from time to time under the
Securities Purchase Agreement to the Series B Preferred Shares (the "Series B
Preferred Shares") to be issued in a maximum amount of 5,520,000 shares pursuant
to the Articles Supplementary Classifying 5,520,000 Shares of Beneficial
Interest as Series B Cumulative Redeemable Preferred Shares of Beneficial
Interest of Glimcher Realty Trust in the form of Exhibit A hereto (the "Series B
Articles Supplementary"), such subordination to be to the extent and in the
manner set forth in such Series B Articles Supplementary.
XXX XX, as the holder of all the outstanding Series A Preferred
Shares, is willing to consent to such subordination only if, among the other
requirements contained in this Amendment, (1) GRT executes and files with all
requisite authorities Articles Supplementary Classifying and Designating 40,000
Shares of Beneficial Interest as 40,000 Shares of Series A-1 Convertible
Preferred Beneficial Interest (the "Series A-1 Preferred Shares") as set forth
on Exhibit B hereto (the "Series A-1 Articles Supplementary"), (2) all shares of
Series A Preferred Shares are exchanged on a one for one basis for shares of
Series A-1 Preferred Shares and (3) the Securities Purchase Agreement is amended
to provide that all future Preferred Shares to be issued from time to time under
the Securities Purchase Agreement will contain the same terms and provisions as
the Series A-1 Preferred Shares, subject to the dividend options set forth in
Exhibit B-1 to the Securities Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. Amendments and Modifications to Securities Purchase
Agreement. XXX XX, NACC, GPLP and GRT hereby agree that the provisions of this
Section 1 shall amend and modify any contrary provisions set forth in the
Securities Purchase Agreement:
(a) Creation of Series A-1 Preferred Shares. XXX XX, NACC, GPLP and
GRT consent to the creation of the Series A-1 Preferred Shares pursuant to the
Series A-1 Articles Supplementary.
(b) Terms of Future Preferred Shares. XXX XX, NACC, GPLP and GRT agree
that all further Preferred Shares to be issued from time to time under the
Securities Purchase Agreement shall be issued pursuant to Articles Supplementary
substantially in the same form as the Series A-1 Articles Supplementary (except
for the dividend rate options set forth in Exhibit B-1 to the Securities
Purchase Agreement).
(c) Exchange of Shares. Subject to the terms and conditions set forth
herein, concurrently with the original issuance of any Series B Preferred
Shares, XXX XX agrees to exchange on a one for one basis all Series A Preferred
Shares owned by it for the same number of Series A-1 Preferred Shares. XXX XX
agrees to deliver to GRT for cancellation all of such Series A Preferred Shares
in exchange for certificates evidencing the Series X-0 Xxxxxxxxx
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Xxxxxx to be issued in exchange therefor. All transfer taxes, if any,
shall be for the account of GRT. XXX XX understands that upon delivery to GRT of
such Series A Preferred Shares and receipt of the certificates evidencing the
Series A-1 Preferred Shares, the Series A Preferred Shares will be retired, and
XXX XX shall have no further rights or preferences with respect thereto.
Notwithstanding the foregoing, (1) the exchange of XXX II's Series A Preferred
Shares for Series A-1 Preferred Shares shall not be deemed a waiver of any cause
of action which XXX XX may have against GRT which arose during the period of
time that XXX XX was holder of the Series A Preferred Shares and (2) any and all
rights which XXX XX may have under or in connection with any contract,
agreement, instrument or other document arising in connection with the
transaction pursuant to which Series A Preferred Shares were issued shall
continue in respect of Series A-1 Preferred Shares held by XXX XX as a
consequence of the exchange contemplated hereby for so long as XXX XX remains a
holder thereof, on the same terms and to the same extent as such rights existed
prior to such exchange. Notwithstanding any provision of this Amendment to the
contrary, it is the intent of the parties that Series A-1 Preferred Shares shall
be deemed issued in exchange for the Series A Preferred Shares as of the date of
exchange and all accrued and unpaid dividends on the Series A Preferred Shares
shall be paid in full on the date of the exchange (which shall be the Original
Issuance Date (as defined in the Series A-1 Articles Supplementary) of the
Series A-1 Preferred Shares and shall be computed for all periods on the basis
of the actual number of days elapsed over a year of 360 days.
(d) The provisions set forth above shall be effective only upon the
satisfaction of the following conditions on or before December 15, 1997.
(1) XXX XX shall have received certificates evidencing the Series A-1
Preferred Shares.
(2) XXX XX shall have received evidence of all requisite corporate and
stockholder approvals, if any, required in connection with the creation and
issuance of the Series A-1 Preferred Shares.
(3) XXX XX shall have received legal opinions from counsel to GRT
satisfactory to XXX XX in form, scope and substance as to the matters set
forth in (4) below, and the authorization, creation and validity of the
Series A-1 Preferred Shares.
(4) The Series A-1 Preferred Shares shall have been validly created
and issued and the holders shall have received evidence thereof and, if
applicable, the exchange of the Series A Preferred Shares for the Series
A-1 Preferred Shares shall be legal valid and binding.
(5) All members of the Great Plains MetroMall LLC shall have executed
and delivered to NACC the Operating Agreement LLC Modification set forth at
the end of this Amendment.
Section 2. No Waiver or Other Modifications. Except as expressly
amended hereby, the Securities Purchase Agreement shall remain in full force and
effect. Without limiting the foregoing, GRT and GPLP agree that XXX XX and NACC
are not obligated to purchase any Preferred Shares except pursuant to the exact
terms and conditions of the Securities Purchase Agreement and are not obligated
to waive or modify any such terms and conditions.
Section 3. Miscellaneous.
(a) Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(c) Fees. GRT will pay upon demand all reasonable fees and expenses
(including reasonable attorneys fees and expenses) of NACC and XXX XX in
connection with the negotiation, execution and delivery of this Amendment and
the consummation of the transactions contemplated hereby.
(d) Incorporation by reference. The provisions of Section 4 and
Section 10 of the Securities Purchase Agreement are hereby incorporated by
reference (mutatis mutandis).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No
1. to the Securities Purchase Agreement to be executed and delivered by their
duly authorized officers.
GLIMCHER REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By Glimcher Properties Corporation, its
sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President
PARTNERSHIP ACQUISITION TRUST II
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Attorney in Fact
NOMURA ASSET CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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Great Plains MetroMall LLC Operating Agreement Modification
By execution hereof, the undersigned agree that, from and after the
date of issuance of the Series A-1 Preferred Shares in exchange for the Series A
Preferred Shares referred to above, all references contained in the Operating
Agreement of Great Plains MetroMall LLC, a Delaware limited liability company,
to the Series A Preferred Shares shall be deemed to refer to the Series A-1
Preferred Shares.
Dated as of November __, 1997.
OLATHE MALL LLC
By: Glimcher Properties Limited Partnership
By: Glimcher Properties Corporation,
its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
PARTNERSHIP ACQUISITION TRUST III
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Attorney in Fact
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Registration Rights Agreement Modification
By execution hereof, the undersigned agree that from and after the
date of issuance of the Series A-1 Preferred Shares in exchange for the Series A
Preferred Shares referred to above, all references contained in the Registration
Rights Agreement dated January 26, 1994, and amended as of November 26, 1996, by
and among Glimcher Realty Trust and the other parties identified as Shareholders
in that certain Registration Rights Agreement (the "Agreement"), shall be deemed
to refer to the Series A-1 Preferred Shares. Capitalized terms used herein shall
have the meanings set forth in the Agreement or as otherwise provided herein.
Dated as of November __, 1997
GLIMCHER REALTY TRUST
/s/ Xxxxxx X. Xxxxxxx
By:_____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President
SHAREHOLDERS (holding at least two-thirds of all Covered Shares outstanding):
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
_______________________ ______________________
Xxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxxx
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