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, David J. Glimcher has resigned as an executive officer of
the
Trust;
WHEREAS, David J. Glimcher 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 David J. Glimcher's 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
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in any Acquisition Project other than through their ownership
interest in the
Partnership and the Trust; provided, however, that with respect to
David
Glimcher 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
David Glimcher
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 David
Glimcher to acquire
such equity ownership interest in such Acquisition Project.
The
"Restrictions Lapse Date" shall mean (x) with respect to
Herbert
Glimcher 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) Herbert Glimcher and David
Glimcher 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 David Glimcher, 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 David Glimcher 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
2
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Change in Control of the Trust (a) David Glimcher 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) David Glimcher 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 Trans
