Unassociated Document


    Exhibit 10.137

     

     

    
      
        

      

    

    
       

      FIRST
AMENDMENT

       

      TO

       

      LIMITED
LIABILITY COMPANY AGREEMENT

       

      OF

       

      OG RETAIL HOLDING CO.,
LLC

      


       

       

      THE
INTERESTS DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE, CANADIAN
PROVINCE OR OTHER COUNTRY.  THIS OFFERING HAS NOT BEEN REVIEWED,
APPROVED OR DISAPPROVED, NOR HAS THE ACCURACY OR ADEQUACY OF THE INFORMATION SET
FORTH HEREIN BEEN PASSED UPON, BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE OR PROVINCIAL SECURITIES OR OTHER REGULATORY AUTHORITY.  ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

       

      THE
INTERESTS OFFERED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE 1933
ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM.  INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.

       

      


       

        
          

        

      

      Puente
Hills Mall ● Tulsa Promenade Mall 

      
        

      

      
         

      

      


       

      Dated
as of August 22, 2008

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      TABLE
OF CONTENTS

       

      
        
          	
                  1.    INTERPRETATION

                	
                  2

                
	 	 
	
                  1.1.     Definitions

                	
                  2

                
	
                  1.2.     Reference
      to Agreements

                	
                  3

                
	
                  1.3.     Miscellaneous

                	
                  3

                
	
                  1.4.     Currency

                	
                  3

                
	 
      	 
      
	
                  2.    ADDITIONAL
      CAPITAL

                	
                  3

                
	 	 
	
                  2.1.     Capital
      Call

                	
                  3

                
	
                  2.2.     Pro
      Rata

                	
                  3

                
	
                  2.3.     Waiver

                	
                  3

                
	
                  2.4.     Payment
      Date

                	
                  3

                
	 
      	 
      
	
                  3.    AMENDMENTS

                	
                  4

                
	 	 
	
                  3.1.     Forced
      Sale

                	
                  4

                
	 
      	 
      
	
                  4.    REPRESENATIONS
      AND WARRANTIES

                	
                  6

                
	 	 
	
                  4.1.     Representations

                	
                  6

                
	
                  4.2.     Authorization;
      Good Standing

                	
                  6

                
	
                  4.3.     Violation

                	
                  6

                
	
                  4.4.     Enforceability

                	
                  6

                
	 
      	 
      
	
                  5.    MISCELLANEOUS

                	
                  6

                
	 	 
	
                  5.1.     Expenses

                	
                  6

                
	
                  5.2.     Amendment

                	
                  6

                
	
                  5.3.     Terms
      of Agreement in Force

                	
                  6

                
	
                  5.4.     No
      Third Party Beneficiary

                	
                  6

                
	
                  5.5.     Headings

                	
                  6

                
	
                  5.6.     Invalid
      Provisions

                	
                  6

                
	
                  5.7.     Governing
      Law

                	
                  7

                
	
                  5.8.     Dispute
      Resolution

                	
                  7

                
	
                  5.9.     Construction

                	
                  7

                
	
                  5.10.   Counterparts

                	
                  7

                
	
                  5.11.   Confidentiality

                	
                  7

                


        

      

       

       

      
        
           

        

        
          i

          
            

          

        

        
           

        

      

      FIRST
AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT

      OF
OG RETAIL HOLDING CO., LLC

      


       

      This
FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT OF OG RETAIL HOLDING CO.,
LLC (this "Amendment"), dated as
of August 22, 2008 (the "Effective Date"), by
and among Glimcher Properties Limited Partnership, a Delaware limited
partnership (“Class A
Member”) and OMERS Realty Corporation, a corporation organized under the
laws of Canada (the “Class B Member”; each
of Class A Member and Class B Member, a “Member” and
collectively, the “Members”).


       

      RECITALS

       

      WHEREAS,
each of the Members entered into that certain LIMITED LIABILITY COMPANY
AGREEMENT OF OG RETAIL HOLDING CO., LLC (as amended from time to time, the
“Agreement”),
dated as of December 29, 2005, to set forth their respective rights and
responsibilities as members of OG Retail Holding Co., LLC (the “Company”), the
indirect owner of substantially all of the interests in those retail assets
commonly known as Puente Hills Mall and Tulsa Promenade Mall (collectively, the
“Properties”
and each a “Property”);
and

       

      WHEREAS,
the Members desire to amend the Agreement to provide for, inter alia, additional
capital to be authorized to be contributed by the Members on a pari passu basis in an amount
not to exceed the Loan Prepayment Amount (as hereinafter defined) and to provide
the Members with certain additional rights of liquidation with respect to the
Properties and/or the interests therein, all on the terms and conditions set
forth herein.

       

      NOW,
THEREFORE, in consideration of the premises, the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto hereby agree to amend the
Agreement as follows:


       

      
        	
                1.

              	
                INTERPRETATION

              


      

       

      
        	
                 
      

              	
                1.1.

              	
                Definitions.  Unless
      otherwise expressly provided herein, all capitalized terms used herein and
      not otherwise defined shall have the meanings given to such terms in the
      Agreement; provided that the
      following terms as used in this Amendment shall have the following
      meanings:

              


      

       

      “Borrower” means
Puente Hills Mall, LLC, the record title holder of Puente Hills.

       

      "Liquidity Date" means
the earlier to occur of (i) the date (or next Business Day), that is six (6)
months following the Effective Date, or (ii) the occurrence of
Cause.

       

      "Loan" means that
certain mortgage loan in the original principal amount of $90,000,000, secured
by a first mortgage lien on Puente Hills and evidenced by the Loan Agreement and
promissory note associated therewith.

       

      “Loan Agreement” means
that certain Loan Agreement dated as of June 3, 2008, among Borrower, as
borrower, the Lenders party thereto, as lenders, and Eurohypo AG, New York
Branch, as lender and administrative agent.

       

      
        
           

        

        
          -2-

          
            

          

        

        
           

        

      

      “Loan Prepayment
Amount” shall be the total sum of $45,128,554.69, comprised of the
principal sum to be prepaid equal to $45,000,000, plus accrued interest on the
principal amount prepaid equal to $126,492.19, plus breakage costs equal to
$2,062.50.

       

      “Payment Date” means
August 22, 2008 or such other later date on which the Loan Prepayment Amount
shall be due and owing.

       

      “Puente Hills” means
that property, including all fixtures, improvements and personal property
related thereto, commonly known as Puente Hills Mall, and more particularly
described in the Agreement.

       

      
        	
                 
      

              	
                1.2.

              	
                Reference to Agreements.  Any
      definition that defines a document, agreement or instrument shall mean
      such document, agreement or instrument, as it may be amended, modified or
      supplemented from time to time, excluding amendments, modifications and
      supplements made in violation of the
    Agreement.

              


      

       

      
        	
                 
      

              	
                1.3.

              	
                Miscellaneous.  Unless
      the context of this Amendment otherwise requires, (i) words of any
      gender include each other gender; (ii) words using the singular or
      plural number also include the plural or singular number, respectively;
      (iii) the terms "hereof," "herein," "hereby" and derivative or
      similar words refer to this Amendment; (iv) the term "Section" refers
      to the specified Section of this Amendment unless otherwise indicated; and
      (v) the phrases "include" and "including" shall mean "include without
      limitation" and "including without
    limitation."

              


      

       

      
        	
                 
      

              	
                1.4.

              	
                Currency.  Unless
      otherwise indicated, all references to currency in this Amendment shall be
      to the lawful currency of the United States of
    America.

              


      

       

      
        	
                2.

              	
                ADDITIONAL
      CAPITAL

              


      

       

      
        	
                 
      

              	
                2.1.

              	
                Capital Call.  The
      Members hereby agree to the make additional cash Capital Contributions to
      the Company in an aggregate amount equal to the Loan Prepayment Amount, in
      accordance with Section 6.2 of
      the Agreement (except as set forth
  herein).

              


      

       

      
        	
                 
      

              	
                2.2.

              	
                Pro Rata.
      Each Member shall pay its pro-rata share of the
      additional Capital Contribution in an amount equal to its respective
      Percentage Interest of the Loan Prepayment Amount, it being agreed that
      the share of the Class A Member shall be the sum of $23,466,848.44 and the
      share of the Class B Member shall be the sum of
      $21,661,706.25.  Upon such contribution, each Member’s Capital
      Account shall be adjusted in accordance with Section 7.1 of
      the Agreement.

              


      

       

      
        	
                 
      

              	
                2.3.

              	
                Waiver.
      The Members hereby waive notice of the Capital Call contemplated by Section 2.1 of this
      Amendment, as provided for in Section 6.2 of
      the Agreement, and agree that this Amendment shall serve as full
      authorization, in lieu of any required meeting of the Management
      Committee, to authorize the Capital Call contemplated
      herein.

              


      

       

      
        	
                 
      

              	
                2.4.

              	
                Payment Date.  The
      Capital Call contemplated by Section 2.1 shall be
      made by each of the Members not later than 2:30 p.m. (New York time) on
      the Payment Date, or such other later time as the Members may mutually
      agree, by wire transfer of immediately available funds to the account set
      forth on Schedule A
      hereto or such other account as designated by the Administering Member not
      later than 9:00 a.m. (New York time) on the Payment Date, which account
      may include the account designated by any lender to the
      Loan.

              


      

       

      
        
           

        

        
          -3-

          
            

          

        

        
           

        

      

      
        	
                3.

              	
                AMENDMENTS

              


      

       

      
        	
              	
                3.1.

              	
                Forced
      Sale.  A new Section 9.9 of the Agreement is hereby
      created, which reads as follows:

              


      

       

      
        	
                 
      

              	
                9.9

              	
                Forced
      Sale.

              


      

       

      (a)           Notwithstanding
anything contained in this Agreement  to the contrary, at any time
following the Liquidity Date, each Member (such Member being the “Triggering Member”)
shall have the right to require the marketing and sale of any Property or both
Properties (the "Forced Sale
Procedure") and to exclusively control such sale and marketing without
the approval of the Responding Member (as defined below), subject to the
following provisions of this Section 9.9, provided that the Responding
Member and its Affiliates shall reasonably cooperate to effect such marketing
and sale in a timely manner.

       

      (b)           The
Triggering Member may trigger the Forced Sale Procedure with respect to all (but
not less than all) of any Property or both Properties (the “Subject Property”) by
delivering to the other Member (the "Responding Member") a
notice (the "Forced
Sale Notice") identifying one or both of the Properties as the Subject
Property and indicating that the Triggering Member wishes to cause a sale of the
Subject Property.

       

      (c)           Following
the delivery of the Forced Sale Notice, the Triggering Member shall, on a
commercially reasonable basis, commence the marketing and sale of the Subject
Property for and on behalf of the Company; provided that each Member and
its Affiliates shall have a reasonable opportunity to bid to be a purchaser. The
Triggering Member shall deliver to the Members copies of all of the offers that
it receives in respect of the Subject Property and each Member shall have the
right to submit additional bids in response thereto.

       

      (d)                 If
the Forced Sale Procedure does not result in a sale of the Subject Property on
or before the one hundred twentieth (120th) day immediately following the
delivery of the Forced Sale Notice (the “Termination Date”),
the Forced Sale Procedure and the rights of the Triggering Member to market and
sell the Subject Property pursuant to the Forced Sale Notice shall terminate on
the Termination Date, and (i) the Responding
Member shall thereafter have the right to invoke the Forced Sale Procedure with
respect to the Subject Property or any other Property and (ii) the Triggering Member
shall not have the right to invoke the Forced Sale Procedure or issue a Forced
Sale Notice with respect to any Property for a period of one year following the
Termination Date.  Notwithstanding the foregoing, if the Triggering Member fails to complete a sale of the
Subject Property as a result of the
failure of the Responding Member to reasonably cooperate in the sale and
marketing of the Subject Property in accordance with this Section 9.9, and such
failure continues for a period of ten (10) days following written notice of such
failure (which notice shall describe the matters for which cooperation is needed
in reasonable detail and state that failure to cooperate may result in an
extension of the Termination Date pursuant to this paragraph), the Termination
Date may be extended for an additional period of sixty (60) days by written
notice given by the Triggering Member with reasonable promptness
thereafter.

       

      
        
           

        

        
          -4-

          
            

          

        

        
           

        

      

      (e)           It
shall be a condition of any sale pursuant to the Forced Sale Procedure
that:

       

      (i)           The
sale provides for payment of the purchase price in cash;

       

      (ii)           Unless
approved by all Members, the Triggering Member may only accept on behalf of the
Company an offer that is a Qualifying Offer (as defined below), and if more than
one Qualifying Offers is received, the Qualifying Offer that provides for the
highest purchase price for the Subject Property;

       

      (iii)           As
used herein, “Qualifying Offer”
means a duly executed, binding, written offer by a Member or a financially
qualified, bona fide third party, for the purchase of the Subject Property from
each Subsidiary that owns title to the Subject Property (collectively, the
“Subject
Subsidiary”) for an all-cash purchase price, and on an “as is, with all
faults” basis, and otherwise containing terms, conditions, representations,
warranties and indemnities binding on the Subject Subsidiary as seller of the
Subject Property that are commercially reasonable in the United States real
estate market for agreements for the purchase and sale of shopping centers
similar in size and complexity to the Subject Property, provided, however,
that a Qualifying Offer shall not contain any term, covenant, representation,
warranty, indemnification, guarantee or other provision that would impose any
liability or obligation on the Company, the Manager or the Members.

       

      (iv)           The
property manager in respect of the Subject Property offers the purchaser of the
Property (including the Class A Member or Class B Member and/or any of their
respective Affiliates if it is the purchaser), at such purchaser's option,
either (i) to resign as the property manager of the Subject Property at the time
of closing of title without payment of any penalty or other amount (other than
amounts accruing with respect to the property manager's services prior to the
date of the property manager's resignation); provided that the property
manager must be given not less than thirty (30) days notice of the date of
closing by such purchaser or the Triggering Member that it must resign on that
date (or, if the date of closing is not reasonably ascertainable thirty (30)
days prior to closing, such shorter time period, not less than ten(10) days, as
is reasonable under the circumstances) which notice may be revoked in the event
that the closing does not occur, or (ii) to remain as property manager of the
Subject Property on terms to be reasonably agreed upon between the property
manager and the purchaser for an appropriate transition period.

       

      
        
           

        

        
          -5-

          
            

          

        

        
           

        

      

      
        	
                 
      

              	
                3.2.

              	
                Defined Terms.
      The terms defined herein shall be incorporated into the Agreement by
      reference.

              


      

       

      
        	
                4.

              	
                REPRESENTATIONS
      AND WARRANTIES

              


      

       

      
        	
                 
      

              	
                4.1.

              	
                Representations.  Each
      Member represents, warrants, agrees and/or acknowledges, as applicable,
      for the benefit of the Company and the other Members, that of the date
      hereof:

              


      

       

      
        	
                 
      

              	
                4.2.

              	
                Authorization; Good
      Standing.
      It is an entity, duly organized or formed and validly existing and in good
      standing under the laws of the jurisdiction of its organization or
      formation; it has all requisite power and authority to enter into this
      Amendment, to perform its obligations hereunder; and the execution,
      delivery and performance of this Amendment has been duly authorized by all
      necessary action.

              


      

       

      
        	
                 
      

              	
                4.3.

              	
                Violation.  Its
      execution and delivery of this Amendment and the performance of its
      obligations hereunder will not conflict with or violate any of the
      provisions of its organizational
  documents.

              


      

       

      
        	
                 
      

              	
                4.4.

              	
                Enforceability.  This
      Amendment and the Agreement, as amended hereby, is a binding obligation of
      such Member enforceable against such Member in accordance with its
      terms.

              


      

       

      
        	
                5.

              	
                MISCELLANEOUS

              


      

       

      
        	
                 
      

              	
                5.1.

              	
                Expenses.  All
      reasonable costs and expenses incurred by each Member in connection with
      this Amendment and the transactions contemplated hereby (including, with
      limitation, the fees and disbursements of one counsel) shall be borne by
      the Company. 

              


      

       

      
        	
                 
      

              	
                5.2.

              	
                Amendment.  The
      Agreement, as amended hereby, is hereby ratified and confirmed by the
      parties, and may be amended, supplemented or modified only by a written
      instrument duly executed by or on behalf of each party
      hereto.

              


      

       

      
        	
                 
      

              	
                5.3.

              	
                Terms of Agreement in Force.  Except
      as amended and modified hereby, all terms of the Agreement, as heretofore
      in effect, shall remain in full force and effect, and, as amended and
      modified hereby, are hereby ratified and confirmed in all
      respects.

              


      

       

      
        	
                 
      

              	
                5.4.

              	
                No Third Party Beneficiary.  The
      terms and provisions of this Amendment are intended solely for the benefit
      of the parties hereto and their respective successors and permitted
      assigns, and it is not the intention of the parties to confer third-party
      beneficiary rights, and this Amendment does not confer any such
      rights.

              


      

       

      
        	
                 
      

              	
                5.5.

              	
                Headings.  Section
      titles and headings to sections herein are inserted for convenience of
      reference only and are not intended to be a part of or to affect the
      meaning or interpretation of this
  Amendment.

              


      

       

      
        	
                 
      

              	
                5.6.

              	
                Invalid Provisions.  If
      any provision of this Amendment is held to be illegal, invalid or
      unenforceable under any present or future law (a) such provision shall be
      fully severable, (b) this Amendment shall be construed and enforced as if
      such illegal, invalid or unenforceable provision had never comprised a
      part hereof, (c) the remaining provisions of this Amendment shall remain
      in full force and effect and shall not be affected by the illegal, invalid
      or unenforceable provision or by its severance herefrom and (d) in lieu of
      such illegal, invalid or unenforceable provision, there shall be added
      automatically as a part of this Amendment a legal, valid and enforceable
      provision as similar in terms to such illegal, invalid or unenforceable
      provision as may be
  possible.

              


      

       

      
        
           

        

        
          -6-

          
            

          

        

        
           

        

      

      
        	
                 
      

              	
                5.7.

              	
                Governing Law.  This
      Amendment shall be governed by and construed and interpreted in accordance
      with the laws of the State of
  Delaware.

              


      

       

      
        	
                 
      

              	
                5.8.

              	
                Dispute Resolution.  The
      provision of Section 12.7 of
      the Agreement shall apply mutatis mutandis, with
      respect to this
Amendment.

              


      

       

      
        	
                 
      

              	
                5.9.

              	
                Construction.  The
      parties hereto agree that this Amendment is the product of negotiation
      between sophisticated parties and individuals, all of whom were
      represented by counsel, and each of whom had an opportunity to participate
      in and did participate in, the drafting of each provision
      hereof.  Accordingly, ambiguities in this Amendment, if any,
      shall not be construed strictly or in favor of or against any party hereto
      but rather shall be given a fair and reasonable construction without
      regard to the rule of contra
      proferentem.

              


      

       

      
        	
              	
                5.10.

              	
                Counterparts.  This
      Amendment may be executed in any number of counterparts, each of which
      shall be deemed an original, but all of which together shall constitute
      one and the same
instrument.

              


      

       

      
        	
              	
                5.11.

              	
                Confidentiality.  The
      provision of Section 12.15
      of the Agreement shall apply mutatis mutandis, with
      respect to this Amendment.


              


      

       

       

       

      
        
           

        

        
          -7-

          
            

          

        

        
           

        

      

      [Signature
page to First Amendment to Limited Liability Company Agreement  of OG
Retail Holding Co., LLC]

       

      


       

      IN
WITNESS WHEREOF, this Amendment has been duly executed and delivered by each
party hereto.

      


       

      OMERS REALTY CORPORATION,


      a
corporation organized under the laws of Canada

       

      


       

      By:   
/s/ Andrew D.
Trickett

      Andrew D.
Trickett

      Senior
Vice President

      


       

      By:   
/s/ Gawain S. E.
Smart

      Gawain
S.E. Smart

      Vice
President

       

      


       

      GLIMCHER PROPERITIES LIMITED
PARTNERSHIP, 

      a
Delaware limited partnership, by its general partner, 

      Glimcher
Properties Corporation

      


       

      By:   
/s/ George A.
Schmidt

      George A.
Schmidt

      Executive
Vice President and Chief Investment Officer