Exhibit 10.1
Execution version
LOAN PURCHASE AND AGENCY
ASSIGNMENT AGREEMENT
This Loan Purchase and Agency
Assignment Agreement (this “ Agreement ”) is
entered into as of January 30, 2007, by and among Goldman
Sachs Mortgage Company, in its individual capacity (“
GSMC ”) as a Lender and as Administrative Agent and
Collateral Agent (“ Prior Agent ”) for the
Lenders under the Credit Agreement (as defined below), Brookfield
Asset Management Inc. (“ BAMI ”), The Mills
Limited Partnership, a Delaware limited partnership (“
Borrower ”), the Mills Corporation, a Delaware
corporation (“ Parent ”) and each other Credit
Party party hereto. Defined terms in the Credit Agreement have the
same meanings where used herein, unless otherwise
defined.
RECITALS
WHEREAS, Borrower, Parent and
certain other Credit Parties party thereto (each of the foregoing,
collectively, the “ Credit Parties ”), Prior
Agent and Lenders have entered into a Credit and Guaranty Agreement
dated as of May 19, 2006 (as amended, supplemented, restated
or otherwise modified, the “ Credit Agreement
”);
WHEREAS, Prior Agent desires to
resign as the Administrative Agent and Collateral Agent and BAMI
desires to be appointed as the successor Administrative Agent and
Collateral Agent and the parties hereto consent to such resignation
and appointment; and
WHEREAS, in connection with that
certain Assignment and Assumption Agreement (as defined below),
among GSMC and BAMI, GSMC desires to sell and assign 100% of the
outstanding Loans under the Credit Agreement to BAMI.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto hereby agree as
follows:
1.
Resignation and Appointment .
(a) As of the
Effective Date (as defined below), (i) Prior Agent hereby
resigns as the Administrative Agent and the Collateral Agent as
provided under Section 9.7 of the Credit Agreement,
(ii) the Lenders party hereto hereby waive the 30-day notice
requirement referred to in Section 9.7 of the Credit Agreement
and appoint BAMI, in its individual capacity, as the successor
Administrative Agent and Collateral Agent (in such capacities, the
“ Successor Agent ”), (iii) in connection
with such appointment of Successor Agent, each of the parties
hereto (x) consents to the appointment of BAMI as Successor
Agent pursuant to Section 9.7(b) of the Credit Agreement and
(y) agrees that notwithstanding anything to the contrary in
the definition of “Qualified Replacement Agent” in
Section 1.1 of the Credit Agreement, Brookfield Asset
Management Inc. shall be permitted as a Qualified Replacement
Agent, and (iv) BAMI hereby accepts such appointment as
Successor Agent. Each of the parties hereto agree to execute all
documents necessary or appropriate to evidence the appointment of
BAMI as the Successor Agent. The parties hereto hereby confirm that
all of the provisions of the Credit Agreement, including, without
limitation, Section 9, Section 10.2, Section 10.3
and Section 10.8, as they pertain to a retiring Agent, shall
survive Prior Agent’s resignation hereunder, and inure to the
benefit of Prior Agent. Notwithstanding any of the foregoing, BAMI
shall not be liable for any actions taken or omitted to be taken by
Prior Agent while it was the Administrative Agent or the Collateral
Agent nor for any actions taken or omitted to be taken by Prior
Agent pursuant to this Agreement.
(b) As of the
Effective Date, Prior Agent hereby assigns (without, except as
expressly set forth herein, any representation, warranty or
recourse) all Liens and security interests under the Credit
Agreement and the other Assigned Credit Documents (as defined
below) to BAMI, as Successor Agent. Notwithstanding anything
contained herein or in any other Assigned Credit Document, all of
such Liens and security interests shall in all respects be
continuing and in effect and are reaffirmed pursuant to the
Assigned Credit Documents.
(c) Prior
Agent agrees that it shall (i) on the Effective Date, deliver
to Successor Agent all original stock certificates, instruments,
promissory notes and other property of Borrower or any of its
Subsidiaries held by Prior Agent to the extent such relate to any
of the Assigned Credit Documents and (ii) following the
Effective Date, furnish, at Borrower’s expense, additional
releases, termination statements and such other documents,
instruments and agreements as may be reasonably requested by
Successor Agent in order to effect and evidence more fully the
matters covered hereby, including delivery to Successor Agent of
assignments of all existing Mortgages (in form and substance
reasonably satisfactory to Successor Agent) duly executed by the
Prior Agent. Prior Agent authorizes Borrower and the Successor
Agent (and their respective counsel) to prepare and file such UCC
financing statements and amendments under the Uniform Commercial
Code in the offices and jurisdictions that Successor Agent deems
necessary or appropriate to evidence the matters referred to
herein.
2.
Loan Purchase . As of the Effective Date, GSMC (without,
except as expressly set forth herein and in the Assignment and
Assumption Agreement, any representation, warranty or recourse)
agrees to sell (pursuant to the Assignment and Assumption
Agreement) to BAMI, and BAMI agrees to purchase, all of
GSMC’s right, title and interest as Lender in the Loans and
related rights and obligations pursuant to the Assigned Credit
Documents; provided, that, GSMC shall continue to have full rights
pursuant to, and benefits of, Section 10.3 of the Credit
Agreement. Such sale and purchase shall be made in consideration of
the Purchase Price as defined and set forth on Schedule 1 hereto,
which shall be payable on the Effective Date to GSMC by BAMI, in
immediately available funds, to the account of GSMC specified in
Schedule 1 hereto.
3.
Assigned Credit Documents . The parties agree that all
rights and obligations respectively assigned to, and assumed by,
BAMI, pursuant to this Agreement and the transactions contemplated
hereby, shall not include any rights or obligations of GSMC
pursuant to the Fee Letter or the Commitment Letter. The Credit
Agreement and the other Credit Documents, excluding the Fee Letter
and the Commitment Letter, are referred to herein as the “
Assigned Credit Documents ”.
4.
Representations and Warranties of GSMC and BAMI .
(a) GSMC
hereby represents and warrants that it is legally authorized to
enter into and has duly executed and delivered this
Agreement.
(b) BAMI
hereby represents and warrants that it is legally authorized to
enter into and has duly executed and delivered this
Agreement.
5.
Representations and Warranties of Borrower and each Credit
Party . Each of Borrower and each Credit Party hereby
represents and warrants that:
(a) each
Credit Party has the power, and has been duly authorized by all
requisite action, to execute and deliver this Agreement and the
other documents and agreements
2
executed and delivered in connection
herewith to which it is a party. This Agreement has been duly
executed by each Credit Party and the other documents and
agreements executed and delivered in connection herewith to which
any Credit Party is a party have been duly executed and delivered
by each Credit Party, as applicable;
(b) this
Agreement is the legal, valid and binding obligation of each Credit
Party and the other documents and agreements executed or delivered
in connection herewith to which any Credit Party is a party are the
legal, valid and binding obligations of each such Credit Party, in
each case enforceable against such Credit Party in accordance with
their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of
creditors’ rights and subject to general equitable principles
which may limit the right to obtain equitable remedies;
and
(c) the
execution, delivery and performance of this Agreement and the other
documents and agreements executed and delivered in connection
therewith do not and will not (i) violate any law, rule,
regulation or court order to which any Credit Party is subject or
(ii) conflict with or result in a breach of the Organizational
Documents of any Credit Party or any other agreement or instrument
to which it is party or by which the properties of any Credit Party
is bound.
6.
Conditions Precedent to Effectiveness . The obligations of
the parties hereto set forth in Sections 1 and 2 hereof shall
become effective immediately upon the date (the “
Effective Date ”) when each of the following
conditions shall first have been satisfied; provided, that the
Effective Date shall (unless otherwise agreed in writing by GSMC,
BAMI and the Borrower) be January 30, 2007:
(a) Each of
the parties hereto shall have executed and delivered this
Agreement;
(b) each of
BAMI and GSMC shall have executed and delivered to each other
counterparts of an assignment and assumption agreement, in the form
attached hereto as Exhibit A (the “ Assignment and
Assumption Agreement ”), for the assignment of 100% of
the outstanding Loans under the Credit Agreement from GSMC to
BAMI;
(c) GSMC
shall have received agreements, in form and substance satisfactory
to it, from each Person to which it has sold any participation in
the Loans, terminating each such participation, executed and
delivered by each such participant;
(d) GSMC
shall have received a supplement to the Fee Le
