FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF THE MILLS LIMITED PARTNERSHIP
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FIFTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF
THE XXXXX LIMITED PARTNERSHIP
THIS FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF THE XXXXX LIMITED PARTNERSHIP (this "Amendment"), dated as of March 26, 2003, is entered into by The Xxxxx Corporation, a Delaware corporation, as general partner (the "General Partner") of The Xxxxx 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, the Partnership has entered into a Purchase Agreement, dated as of March 26, 2003, pursuant to which the Partnership has agreed to issue and sell a newly created class of Preferred Units (as defined in the Partnership Agreement);
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 8.75% Series D Cumulative Redeemable Preferred Partnership Units (the "Series D Preferred Partnership Units"), and to set forth the designations, rights, powers, preferences and duties of such Series D Preferred Partnership Units, which are substantially similar to those of the Series D Preferred Stock (as defined in Section 9 of Exhibit 8 attached hereto), 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. Certain Capitalized Terms. All capitalized terms used in this Amendment and not otherwise defined shall have the meanings assigned in the Partnership Agreement or in Section 9 of Exhibit 8 attached hereto. 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.
2. Amendments to Section 4.2. Section 4.2 of the Partnership Agreement is hereby amended by adding after Section 4.2(G) the following section:
H. Series D 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 D Cumulative Redeemable Preferred Partnership Units" (the "Series D Preferred Partnership Units"). Series D Preferred Partnership Units shall have the designations, preferences, rights, powers and duties as set forth in Exhibit 8 attached hereto.
3. 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 D Preferred Partnership Units pursuant to this 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 8 the Exhibit 8 attached hereto.
4. Severability. If any term or other provision of this 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 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 Fifth Amendment as of the date first set forth above.
| THE XXXXX CORPORATION, as General Partner of The Xxxxx Limited Partnership and on behalf of existing Limited Partners |
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By: |
/s/ XXXXXXX X. PARENT |
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| Name: | Xxxxxxx X. Parent | |||
| Title: | Chief Operating Officer | |||
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FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF THE XXXXX LIMITED PARTNERSHIP
