Exhibit 3.1
AMENDMENT NO. 7
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
This Amendment No. 7 is made effective as of August 7, 2003, 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 F Preferred Shares by Glimcher
Realty Trust, a Maryland real estate investment trust (the "Trust"), the
Partnership and the Trust have entered into an Underwriting Agreement dated as
of August 7, 2003 (the "Underwriting Agreement") with Deutsche Bank Securities
Inc. and XxXxxxxx Investments Inc. (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 F Preferred Shares of the Trust, having an aggregate initial
Liquidation Preference not to exceed $60 million, for the purposes and upon the
terms and conditions set forth therein, with the proceeds from 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 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.
Amendment
NOW, THEREFORE, the Partnership Agreement is hereby amended as set forth in
this Amendment No. 7.
1. Creation and Issuance of Series F Preferred Interests.
(a) Upon the issuance by the Trust pursuant to the Underwriting
Agreement of the Series F 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 F Preferred Interest") having the same rate of return
and other terms as designated in the applicable Articles Supplementary of
the Series F Preferred Shares; provided, that the aggregate Preferred
Contribution (as defined below) for all Series F Preferred Interests issued
pursuant to this Amendment No. 7 shall not exceed $60 million. Units of
Series F Preferred Interest shall be evidenced by a Certificate of Series F
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 F Preferred Interest
consisting of 2,800,000 Units which shall correspond to 2,800,000 Series F
Preferred Shares (the "Series F Preferred Shares"). On the date hereof,
2,400,000 Units of Series F Preferred Interest are hereby issued to the
Trust contemporaneously with the 2,400,000 Series F Preferred Shares being
issued pursuant to the Underwriting Agreement.
2. Preferred Contribution; Preferred Return.
(a) Simultaneously with each sale of Series F 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 F 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 F Preferred Return") on each Unit of a
Series F Preferred Interest equal to the return applicable to each share of
the related Series F Preferred Shares under the Articles Supplementary. To
the extent that any Series F Preferred Return is not paid when due, such
amount shall accrue on the same terms and conditions as distributions on
the applicable Series F Preferred Shares under the Articles Supplementary.
The Series F Preferred Return shall be due in the same amounts and on the
same dates as distributions on the applicable Series F Preferred Shares are
due under the Articles Supplementary. For purposes hereof, no effect shall
be given to (i) the fact that the Series F 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 F Preferred Interest, with
adjustments thereto and other
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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 F 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 Series F 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 F
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.
5. Redemption and Other Terms.
(a) In the event of any redemption by the Trust of all or any portion
of the Series F Preferred Shares pursuant to the Articles Supplementary, an
equal portion of the Series F Preferred Interest shall be redeemed on the same
basis as such Series F Preferred Shares and permanently retired and cancelled
for all purposes.
(b) Upon any other return to the Trust or other holder of a Series F
Preferred Interest of the Preferred Contribution with respect to all or any
portion of such Series F Preferred Interest (whether in cash or Series F
Preferred Shares), together with payment of any accrued and unpaid Preferred
Return applicable thereto, such Series F Preferred Interest shall to such extent
be permanently retired and cancelled for all purposes.
6. Ranking. With regard to rights to receive distributions and amounts
payable upon liquidation and dissolution of the Partnership, the Series F
Preferred Interests rank on a parity with the Series B Preferred Interests.
7. Investment Representations; Transfer Restrictions.
(a) The Trust represents and warrants to the Partnership that (i) it
is acquiring the Series F 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 F
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 F 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 F 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 F 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
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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 F Preferred Interest
shall bear an appropriate legend reflecting the foregoing restrictions on
transfer of the Series F Preferred Interest.
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. 7.
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 F Preferred Interest shall be substantially similar to the Series
F Preferred Shares, and this Amendment No. 7 shall be construed as reasonably
required with respect to the preferences and rights of the Series F 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. 7 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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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President Title: Executive Vice President
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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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
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Exhibit A
CERTIFICATE
OF
UNITS OF SERIES F 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 F 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, (ii) Amendment No. 2 to Limited Partnership Agreement dated as of
November 26, 1996, (iii) Amendment No. 3 to Limited Partnership Agreement dated
as of November 12, 1997, (iv) Amendment No. 4 to the Limited Partnership
Agreement dated as of December 4, 1997, (v) Amendment No. 5 to the Limited
Partnership Agreement dated as of March 9, 1998 and (vi) Amendment No. 6 to the
Limited Partnership Agreement dated as of April 24, 2000 and (vii) Amendment No.
7 to the Limited Partnership Agreement dated as of August __, 2003
(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: ____________, 2003 By: /s/
------------------------------
Name:
Title:
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.
