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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:
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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:
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"(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:
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"(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:
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"(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
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