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Exhibit
10.8
SEVENTH AMENDMENT
TO
LIMITED PARTNERSHIP
AGREEMENT
OF
THE MILLS LIMITED
PARTNERSHIP
THIS SEVENTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT OF THE MILLS LIMITED PARTNERSHIP
(this “Amendment”), dated as of August 23, 2004, 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, 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 to issue additional
Partnership Units (as defined in the Partnership Agreement) in one
or more classes or series, with such designations, preferences and
relative, participating, optional or other special rights, powers
and duties, all as determined by the General Partner in its sole
and absolute discretion;
WHEREAS, Section 4.2(A) of
the Limited Partnership Agreement provides that no additional
Partnership Units may be issued to the General Partner unless they
are issued in connection with an issuance of capital stock of the
General Partner having economic rights that are substantially
similar to the economic rights of such Partnership Units and the
General Partner contributes the proceeds of such capital stock to
the Partnership;
WHEREAS, the General Partner
has entered into a Purchase Agreement, dated as of August 17, 2004,
pursuant to which the General Partner has agreed to issue shares of
a newly created series of capital stock, designated 6.75% Series F
Convertible Cumulative Redeemable Preferred Stock (the
“Series F Preferred Stock”);
WHEREAS, 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 establish a new class of
Preferred Units, to be entitled Series F Convertible Cumulative
Redeemable Preferred Partnership Units (the “Series F
Preferred Partnership Units”), and to set forth the
designations, rights, powers, preferences and duties of such Series
F Preferred Partnership Units, which are substantially similar to
those of the Series F Preferred Stock, and (ii) to make certain
other changes to the Partnership Agreement.
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 . Section 4.2 of the Partnership Agreement is hereby
amended by adding after Section 4.2(H) the following
section:
I. Series F 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 F
Convertible Cumulative Redeemable Preferred Partnership
Units” (the “Series F Preferred Partnership
Units”). Series F Preferred Partnership Units shall have the
designations, preferences, rights, powers and duties as set forth
in Exhibit 10 hereto.
2. Exhibits to Partnership
Agreement .
(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 F Preferred Partnership Units pursuant to this Seventh
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) The Partnership Agreement
is hereby amended by attaching thereto as Exhibit 10 the
Exhibit 10 attached hereto.
3. Certain Capitalized
Terms . All capitalized terms used in this Seventh Amendment
and not otherwise defined shall have the meanings assigned in the
Partnership Agreement. Except as modified herein, all terms and
conditions of the Partnership Agreement shall remain in full force
and effect, which terms and conditions the General Partner hereby
ratifies and affirms.
4. Severability . If
any term or other provision of this Seventh Amendment is held by a
court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms and provisions of
this Seventh Amendment shall remain in full force and effect and
shall in no way be effectively impaired or invalidated.
5. Full Force and
Effect . Except as expressly amended hereby, the Partnership
Agreement shall remain in full force and effect.
[SIGNATURES APPEAR ON
FOLLOWING PAGE]
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IN WITNESS WHEREOF, the
undersigned has executed this Seventh Amendment as of the date
first set forth above.
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THE MILLS CORPORATION,
as General Partner of
The Mills Limited Partnership
and on behalf of existing Limited
Partners
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| By: |
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/s/ Mark D. Ettenger
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| Name: |
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Mark D.
Ettenger |
| Title: |
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President |
EXHIBIT 10
DESIGNATION, PREFERENCES
AND RIGHTS OF
SERIES F CONVERTIBLE
CUMULATIVE REDEEMABLE
PREFERRED PARTNERSHIP
UNITS
OF THE MILLS LIMITED
PARTNERSHIP
The Series F Convertible
Cumulative Redeemable Preferred Partnership Units (the “
Series F Preferred Units ”) shall have the following
preferences, rights, powers and duties:
Section 1.
Distributions .
(a) Subject to the
preferential rights of the holders of any class or series of
Partnership Units of the Partnership ranking senior to the Series F
Preferred Units as to distributions, the General Partner, in its
capacity as the holder of the then outstanding Series F Preferred
Units, shall be entitled to receive, when, as and if declared by
the General Partner, out of funds legally available therefor,
distributions payable in cash in an amount per Series F Preferred
Unit equal to the per share dividend payable on the Series F
Preferred Stock on such Distribution Payment Date (defined below).
The distributions on each Series F Preferred Unit shall accrue and
be cumulative from August 23, 2004 (the “ Original Issue
Date ”) and shall be payable quarterly in arrears on the
first day of February, May, August and November of each year (each,
a “ Distribution Payment Date ”), commencing
November 1, 2004; provided, however , that if any
Distribution Payment Date is not a Business Day, then the
distribution which would otherwise have been payable on such
Distribution Payment Date may be paid on the next succeeding
Business Day with the same force and effect as if paid on such
Distribution Payment Date, and no interest or additional
distributions or other sums shall accrue on the amount so payable
from such Distribution Payment Date to such next succeeding
Business Day. The amount of any distribution payable on the Series
F Preferred Units for any full distribution period or any partial
distribution period shall be prorated and computed on the basis of
a 360-day year consisting of twelve 30-day months (it being
understood that the distribution payable on November 1, 2004 will
be for less than a full distribution period). Distribution period
shall mean the period from and excluding the Original Issue Date to
and including the first Distribution Payment Date, and each
subsequent period from and excluding a Distribution Payment Date to
and including the next succeeding Distribution Payment Date or
other date as of which accrued distributions are to be
calculated.
(b) No distributions on the
Series F Preferred Units shall be declared by the General Partner
or paid or set apart for payment by the Partnership at such time as
the terms and provisions of any agreement of the General Partner or
the Partnership, including any agreement relating to indebtedness
of either of them, prohibits such declaration, payment or setting
apart for payment or provides that such declaration, payment or
setting apart for payment would constitute a breach thereof or a
default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
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(c) Notwithstanding anything
contained
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