Exhibit 10.1
NINTH AMENDMENT TO
LIMITED PARTNERSHIP
AGREEMENT
OF
THE MILLS LIMITED
PARTNERSHIP
THIS NINTH AMENDMENT TO LIMITED
PARTNERSHIP AGREEMENT OF THE MILLS LIMITED PARTNERSHIP (this
“Amendment”), dated as of November 22, 2006, is
entered into by The Mills Corporation, a Delaware corporation, as
general partner (the “General Partner”) of The Mills
Limited Partnership (the “Partnership”), for itself and
on behalf of the limited partners of the Partnership.
WHEREAS, the General Partner has
agreed, as of November 22, 2006, to issue two tranches of
junior subordinated notes (the “Junior Subordinated
Notes”) to Colony Xanadu Stock II, LLC and Colony Xanadu
Stock III, LLC in connection with that certain Transaction
Agreement, dated as of November 22, 2006, among the General
Partner, the Partnership, Meadowland Mills L.L.C., Meadowland Mills
Limited Partnership, Colony Investors VII, L.P., Colony Xanadu,
LLC, Colony Xanadu II, LLC, Colony Xanadu III, LLC, Kan Am USA XV
Limited Partnership, Kan Am USA XVI Limited Partnership, Kan Am USA
XX Limited Partnership, Kan Am USA XXII Limited Partnership, and
Kan Am USA XXIII Limited Partnership (the “Transaction
Agreement”);
WHEREAS, Section 4.2(A) of the
Limited Partnership Agreement of the Partnership (as heretofore
amended, the “Partnership Agreement”) authorizes the
General Partner to cause the Partnership from time to time to issue
to Partners (including the General Partner) or other persons
additional Partnership Units or other Partnership Interests in one
or more classes, or one or more series of any such classes, with
such designations, preferences and relative, participating,
optional or other special rights, powers and duties, including
rights, powers and duties senior to the Limited Partnership
Interests, all as determined by the General Partner in its sole and
absolute discretion subject to the Act;
WHEREAS, Section 4.2(A) of the
Partnership Agreement further provides that, no such additional
Partnership Units or Partnership Interests shall be issued to the
General Partner unless either (a)(1) the additional Partnership
Units or other Partnership Interests are issued in connection with
the issuance of REIT Shares of which shares have designations,
preferences and other rights such that the economic interests
attributable to such shares are substantially similar to the
designations, preferences and other rights of the additional
Partnership Interests issued to the General Partner in accordance
with Section 4.2(A) and (2) the General Partner shall
make a Capital Contribution to the Partnership in an amount equal
to the proceeds raised in connection with the issuance of such
shares of the General Partner, or (b) the additional
Partnership interests are issued to all Partners in proportion to
their respective Partnership Interests;
WHEREAS, Section 11.1(A) of the
Partnership Agreement provides that amendments to the Partnership
Agreement may be prepared and adopted by the General Partner
without the Consent of any other Partner, except for amendments
that would (i) convert a Limited Partner’s Interest in
the Partnership into a General Partner Interest, (ii)
increase the liability of a Limited Partner
under the Partnership Agreement, (iii) except as otherwise
permitted in the Partnership Agreement, alter a Limited
Partner’s rights to distributions or allocations set forth in
Article V of the Partnership Agreement, (iv) alter or modify
any aspect of the Partner’s rights with respect to the
redemption of Partnership Units, (v) cause an early
termination of the Partnership (other than pursuant to the terms of
the Partnership Agreement) or (vi) amend Section 11.1(A)
of the Partnership Agreement;
WHEREAS, as contemplated by the
Transaction Agreement and pursuant to the authority granted to the
General Partner pursuant to Section 11.1(A) of the Partnership
Agreement, the General Partner desires to amend the Partnership
Agreement (i) to permit additional Partnership Units or other
Partnership Interests to be issued to the General Partner (without
issuance to all Partners ratably) in connection with either an
incurrence of debt by the General Partner or an issuance of REIT
Shares, which debt or shares have, respectively, payment terms or
designations, preferences and other rights, as the case may be,
such that the economic interests attributable to such debt or
shares are substantially similar to the designations, preferences
and other rights of the additional Partnership Interests issued to
the General Partner in accordance with Section 4.2(A), so long
as the General Partner contributes the proceeds of such debt or
issuance of REIT Shares to the Partnership, (ii) to establish
two new classes of Preferred Units, to be entitled (x) Series
H-1 Redeemable Preferred Partnership Units (the “Series H-1
Preferred Partnership Units”) and (y) Series H-2
Redeemable Preferred Partnership Units (the “Series H-2
Preferred Partnership Units,” and together with the Series
H-2 Preferred Partnership Units, the “Series H Preferred
Partnership Units”), and to set forth the designations,
rights, powers, preferences and duties of such Series H Preferred
Partnership Units, which the Partnership will issue to the General
Partner in exchange for a Capital Contribution to the Partnership
in an amount equal to the proceeds from the Junior Subordinated
Notes to be issued by the General Partner, and (iii) to make
certain other changes to the Partnership Agreement; and
WHEREAS, concurrently with the
closing of the transactions contemplated by the Transaction
Agreement, all of the outstanding Series D Preferred Units of the
Partnership will be repurchased by the Partnership such that, at
the time of the creation and issuance of the Series H Preferred
Partnership Units pursuant to this Amendment, all of the issued and
outstanding Preferred Units of the Partnership (consisting of the
Series B, C, E, F and G Preferred Units) will be owned by the
General Partner.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
General Partner hereby amends the Partnership Agreement, as
follows:
1. Amendments to
Section 4.2 .
(A) Section 4.2(A) of the
Partnership Agreement is hereby amended by deleting in its entirety
the clause beginning “; provided that ”
and replacing it with the following:
“; provided that
no such additional Partnership Units or other Partnership Interests
shall be issued to the General Partner unless either (a)(1)
the
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additional Partnership Interests are
issued in connection with an incurrence of debt by the General
Partner or an issuance of REIT shares, which debt or shares have,
respectively, payment terms or designations, preferences and other
rights, as the case may be, such that the economic interests
attributable to such debt or shares are substantially similar to
the designations, preferences and other rights of the additional
Partnership Interests issued to the General Partner in accordance
with this Section 4.2(A) and (2) the General Partner
shall make a Capital Contribution to the Partnership in an amount
equal to the proceeds raised in connection with the incurrence of
such debt or issuance of such REIT shares of the General Partner,
or (b) the additional Partnership Interests are issued to all
Partners in proportion to their respective Percentage
Interests.”
(B) Section 4.2 of the
Partnership Agreement is hereby amended by adding after
Section 4.2(K) the following two sections:
“(L) Series H-1 Preferred
Partnership Units . Under the authority granted to it by
Section 4.2(A) hereof, the General Partner hereby establishes
an additional class of Preferred Units entitled “Series H-1
Redeemable Preferred Partnership Units” (the “Series
H-1 Preferred Partnership Units”). Series H-1 Preferred
Partnership Units shall have the designations, preferences, rights,
powers and duties as set forth in Exhibit 13
hereto.”
“(M) Series H-2 Preferred
Partnership Units . Under the authority granted to it by
Section 4.2(A) hereof, the General Partner hereby establishes
an additional class of Preferred Units entitled “Series H-2
Redeemable Preferred Partnership Units” (the “Series
H-2 Preferred Partnership Units”). Series H-2 Preferred
Partnership Units shall have the designations, preferences, rights,
powers and duties as set forth in Exhibit 14
hereto.”
2. Amendments to Exhibits
.
(A) The General Partner shall
maintain the information set forth in Exhibit 1 to the
Partnership Agreement, as such information shall change from time
to time, in such form as the General Partner deems appropriate for
the conduct of the Partnership’s affairs, and Exhibit
1 shall be deemed amended from time to time to reflect the
information so maintained by the General Partner, whether or not a
formal amendment to the Partnership Agreement has been executed
amending such Exhibit 1 . In addition to the designation of
Series H-1 Preferred Partnership Units and the Series H-2 Preferred
Partnership Units pursuant to this Ninth Amendment, such
information shall reflect (and Exhibit 1 shall be deemed
amended from time to time to reflect) the issuance of any
additional Partnership Units to the General Partner or any other
Person, the transfer of Partnership Units and the redemption of any
Partnership Units, all as contemplated herein.
(B) Exhibit 6 to the
Partnership Agreement is hereby amended by deleting
Section 1(d) thereof and replacing it with the
following:
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“(d) Except with the consent
of the holder of the Series B Preferred Units or as provided in
Section 1(e) below, no distributions shall be declared or paid
or set apart for payment and no other distribution of cash or other
property may be declared or made, directly or indirectly, on or
with respect to any Common Units or any other class or series of
Partnership Units ranking, as to distributions, on a parity with or
junior to the Series B Preferred Units (other than a distribution
paid in the form of Common Units or any other class or series of
Partnership Units ranking junior to the Series B Preferred Units as
to distributions and upon liquidation) for any period, nor shall
any Common Units, or any other class or series of Partnership Units
ranking junior to or on a parity with the Series B Preferred Units
as to distributions or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
units) by the Partnership (except by conversion into or exchange
for Partnership Units ranking junior to the Series B Preferred
Units as to distributions and upon liquidation), unless full
cumulative distributions on the Series B Preferred Units for all
past distribution periods and the then current distribution period
shall have been or contemporaneously are (i) declared and paid
in cash or (ii) declared and a sum sufficient for the payment
thereof in cash is set apart for such payment.”
(C) Exhibit 7 to the
Partnership Agreement is hereby amended by deleting
Section 1(d) thereof and replacing it with the
following:
“(d) Except with the consent
of the holder of the Series C Preferred Units or as provided in
Section 1(e) below, no distributions shall be declared or paid
or set apart for payment and no other distribution of cash or other
property may be declared or made, directly or indirectly, on or
with respect to any Common Units or any other class or series of
Partnership Units ranking, as to distributions, on a parity with or
junior to the Series C Preferred Units (other than a distribution
paid in the form of Common Units or any other class or series of
Partnership Units ranking junior to the Series C Preferred Units as
to distributions and upon liquidation) for any period, nor shall
any Common Units, or any other class or series of Partnership Units
ranking junior to or on a parity with the Series C Preferred Units
as to distributions or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
units) by the Partnership (except by conversion into or exchange
for Partnership Units ranking junior to the Series C Preferred
Units as to distributions and upon liquidation), unless full
cumulative distributions on the Series C Preferred Units for all
past distribution periods and the then current distribution period
shall have been or contemporaneously are (i) declared and paid
in cash or (ii) declared and a sum sufficient for the payment
thereof in cash is set apart for such payment.”
(D) Exhibit 9 to the
Partnership Agreement is hereby amended by deleting
Section 1(d) thereof and replacing it with the
following:
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“(d) Except with the consent
of the holders of the Series E Preferred Units or as provided in
Section 1(e) below, no distributions shall be declared or paid
or set apart for payment and no other distribution of cash or other
property may be declared or made, directly or indirectly, on or
with respect to any Common Units or any other class or series of
Partnership Units ranking, as to distributions, on a parity with or
junior to the Series E Preferred Units (other than a distribution
paid in the form of Common Units or any other class or series of
Partnership Units ranking junior to the Series E Preferred Units as
to distributions and upon liquidation) for any period, nor shall
any Common Units, or any other class or series of Partnership Units
ranking junior to or on a parity with the Series E Preferred Units
as to distributions or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
units) by the Partnership (except by conversion into or exchange
for Partnership Units ranking junior to the Series E Preferred
Units as to distributions and upon liquidation), unless full
cumulative distributions on the Series E Preferred Units for all
past distribution periods and the then current distribution period
shall have been or contemporaneously are (i) declared and paid
in cash or (ii) declared and a sum sufficient for the payment
thereof in cash is set apart for such payment.”
(E) Exhibit 10 to the
Partnership Agreement is hereby amended by deleting
Section 1(d) thereof and replacing it with the
following:
“(d) Except with the consent
of the holders of the Series F Preferred Units or as provided in
Section 1(e) below, no distributions shall be declared or paid
or set apart for payment and no other distribution of cash or other
property may be declared or made, directly or indirectly, on or
with respect to any Common Units or any other class or series of
Partnership Units ranking, as to distributions, on a parity with or
junior to the Series F Preferred Units (other than a distribution
paid in the form of Common Units or any other class or series of
Partnership Units ranking junior to the Series F Preferred Units as
to distributions and upon liquidation) for any period, nor shall
any Common Units, or any other class or series of Partnership Units
ranking junior to or on a parity with the Series F Preferred Units
as to distributions or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
units) by the Partnership (except by conversion into or exchange
for Partnership Units ranking junior to the Series F Preferred
Units as to distributions and upon liquidation), unless full
cumulative distributions on the Series F Preferred Units for all
past distribution periods and the then current distribution period
shall have been or contemporaneously are (i) declared and paid
in cash or (ii) declared and a sum sufficient for the payment
thereof in cash is set apart for such payment.”
(F) Exhibit 12 to the
Partnership Agreement is hereby amended by deleting
Section 1(d) thereof and replacing it with the
following:
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“(d) Except with the consent
of the holders of the Series G Preferred Units or as provided in
Section 1(e) below, no distributions shall be declared or paid
or set apart for payment and no other distribution of cash or other
property may be declared or made, directly or indirectly, on or
with respect to any Common Units or any other class or series of
Partnership Units ranking, as to distributions, on a parity with or
junior to the Series G Preferred Units (other than a distribution
paid in the form of Common Units or any other class or series of
Partnership Units ranking junior to the Series G Preferred Units as
to distributions and upon liquidation) for any period, nor shall
any Common Units, or any other class or series of Partnership Units
ranking junior to or on a parity with the Series G Preferred Units
as to distributions or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
units) by the Partnership (except by conversion into or exchange
for Partnership Units ranking junior to the Series G Pr
