Exhibit 10.4


 


AMENDMENT
NO. 1 TO SECOND AMENDED AND


RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT


 


This
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this “Amendment”) is made as of
June 30, 2005 by and among (a) The Mills Limited Partnership, a
Delaware limited partnership (the “Borrower”),
(b) JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank) as
Administrative Agent (in such capacity, the “Administrative
Agent”) for the Lenders (as defined below); and (c) the
Lenders party hereto.


 


WHEREAS, the Borrower, the
Lenders and the Administrative Agent are parties to that certain Second Amended
and Restated Revolving Credit and Term Loan Agreement dated as of
December 17, 2004, as modified by that certain Waiver to Second Amended
and Restated Revolving Credit and Term Loan Agreement, dated as of
February 16, 2005 (as so modified, the “Credit
Agreement”), pursuant to which the Lenders have agreed to make
loans and extend credit to the Borrower on the terms and conditions set forth
therein;


 


WHEREAS, the Borrower has
requested that the Lenders (i) reallocate the Revolving Credit Commitments
to increase the Revolving Credit Tranche B Commitments and correspondingly
decrease the Revolving Credit Tranche A Commitments, (ii) amend the
capitalization rates for properties contained in the definition of
“Capitalization Value”, and (iii) clarify the accounting method to be
employed in calculating the Borrower’s proportionate share of Minority Holdings
for purposes of determining compliance with financial covenants; and


 


WHEREAS, the Lenders party
hereto are willing to so amend the Credit Agreement and reallocate their
Revolving Credit Commitments on the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the
foregoing premises, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and fully intending to be
legally bound by this Amendment, the parties hereto agree as follows:


 


1.   Definitions.  Capitalized terms used herein
without definition shall have the meanings assigned to such terms in the Credit
Agreement.


 


2.   Amendments
to Credit Agreement.  As of the Effective Date (as defined in
Section 6 hereof) the Credit Agreement is hereby amended as follows:


 


2.1            Definition of Capitalization
Value.  The definition of “Capitalization Value” set
forth in Section 1.1 of the Credit Agreement is amended by
(i) deleting the percentage “8.25%” in clauses (i) and (vii)(I) of
the definition thereof and replacing it with “7.25%” and (ii) deleting the
percentage “8.00%”


 





















 


in
clauses (v) and (vii)(I) of the definition thereof and replacing it with
“7.00%”.


 


2.2            Definition of GAAP. The definition of “GAAP” in Section 1.1 of the Credit Agreement is
amended by inserting the following sentence immediately following the first
sentence thereof: “Notwithstanding the
foregoing, for purposes of determining compliance with the financial covenants
set forth in Article IX, Borrower shall continue to use the “economic
share percentages” methodology that was in use on the Closing Date to calculate
its proportionate share of Minority Holdings instead of the “hypothetical
liquidation at book value” methodology.”


 


2.3            Definition of Revolving Credit
Tranche A Commitments.  The definition of “Revolving Credit Tranche A
Commitments” set forth in Section 1.1 of the Credit Agreement is amended
by deleting the figure “$825,000,000” in the penultimate line thereof and
replacing it with the figure “$600,000,000”.


 


2.4            Definition of Revolving Credit
Tranche B Commitments.  The definition of “Revolving Credit Tranche B
Commitments” set forth in Section 1.1 of the Credit Agreement is amended
by deleting the figure “$175,000,000” in the penultimate line thereof and
replacing it with the figure “$400,000,000”.


 


2.5            Optional Currency Repayments.  Section 4.2(j)(iii) is
hereby amended by deleting the figure “$175,000,000” in each of the instances
in which it appears in the second sentence thereof and replacing it with the
figure “$400,000,000”.


 


2.6            Amendment
to Exhibit C.  Exhibit C to the Credit Agreement is
hereby amended by deleting the figure “$175,000,000” in clause (a) of the
fourth paragraph thereof, which is the first paragraph in brackets, and
replacing it with the figure “$400,000,000”.


 


2.7            Replacement
of Schedule 1.1-A.  Schedule 1.1-A to the Credit Agreement
is hereby deleted in its entirety and replaced with Schedule 1.1-A
attached hereto.


 


3.   Reallocation.  On the Effective Date, the
Revolving Credit Commitments and Pro Rata Shares of each of the Lenders shall
be reallocated to give effect to the increase in the Revolving Credit Tranche B
Commitments and the decrease in the Revolving Credit Tranche A Commitments in
accordance with Schedule 1.1-A.  The
Borrower shall make such borrowings and repayments of the Loans as shall be
necessary to effect the reallocation of the Revolving Credit Commitments and
the Loans to reflect such adjusted Pro Rata Shares.


 


2





















 


4.   Provisions Of
General Application.


 


4.1.              Representations and Warranties. The Borrower hereby represents and warrants as of the date hereof that
(a) each of the representations and warranties of the Borrower contained
in the Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with the Credit Agreement or
this Amendment are true as of the date as of which they were made and are true
at and as of the date of this Amendment (except to the extent that such representations
and warranties expressly speak as of a different date), (b) no Event of
Default or Potential Event of Default exists on the date hereof, (c) the
organizational documents of each of the Borrower and the Guarantor attached to
the Secretary’s Certificate dated as of December 17, 2004 remain in full
force and effect and, except for such certified copies of amendments or
modifications to organizational documents provided to the Administrative Agent
and counsel to the Lenders, such organizational documents have not been
amended, modified, annulled, rescinded or revoked since December 17, 2004
and (d) this Amendment has been duly authorized, executed and delivered by
the Borrower and is in full force and effect as of the Effective Date, and the
agreements and obligations of the Borrower contained herein constitute the
legal, valid and binding obligations of the Borrower, enforceable against it in
accordance with their respective terms, except to the extent that the
enforcement thereof or the availability of equitable remedies may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
transfer, fraudulent conveyance or similar laws now or hereafter in effect
relating to or affecting creditors rights generally or by general principles of
equity, or by the discretion of any court in awarding equitable remedies,
regardless of whether such enforcement is considered in a preceding in equity
or at law.


 


4.2.              No Other Changes.  Except as otherwise expressly
provided or contemplated by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement remain unaltered and in full force and
effect.  The Credit Agreement and this
Amendment shall be read and construed as one agreement.  The making of the amendments in this
Amendment does not imply any obligation or agreement by the Administrative
Agent or any Lender to make any other amendment, waiver, modification or
consent as to any matter on any subsequent occasion.


 


4.3.              Governing Law.  This Amendment shall be deemed to
be a contract under the laws of the State of New York.  This Amendment and the rights and obligations
of each of the parties hereto are contracts under the laws of the State of New
York and shall for all purposes be construed in accordance with and governed by
the laws of such State (excluding the laws applicable to conflicts or choice of
law).


 


3





















 


4.4.              Assignment.  This Amendment shall be binding
upon and inure to the benefit of each of the parties hereto and their
respective permitted successors and assigns.


 


4.5.              Counterparts.  This Amendment may be executed in
any number of counterparts, but all such counterparts shall together constitute
but one and the same agreement.  In
making proof of this Amendment, it shall not be necessary to produce or account
for more than one counterpart thereof signed by each of the parties hereto.


 


5.   Effectiveness
of this Amendment.  This Amendment shall become
effective on the date on which the following conditions precedent are satisfied
(such date being hereinafter referred to as the “Effective
Date”):


 


(a)           execution and delivery to the
Administrative Agent by the Required Lenders and each of the Lenders with a
Revolving Credit Tranche B Commitment, the Borrower, and the Administrative
Agent of this Amendment;


 


(b)           execution and delivery to the
Administrative Agent by the Guarantor of a reaffirmation of guaranty in form
and substance satisfactory to the Administrative Agent;


 


(c)           delivery to the Administrative Agent
of certified resolutions of the Executive Committee of the Board of Directors
of The Mills Corporation, the sole general partner of the Borrower, authorizing
this Amendment; and


 


(d)           payment by the Borrower of the fees
and expenses described in the Credit Agreement and invoiced to the Borrower
prior to the date hereof.


 


 


[Remainder of page left blank intentionally]


 


4





















 


IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this
Amendment as of the date first set forth above.


 


 


	
  THE BORROWER:

  	
  THE MILLS LIMITED PARTNERSHIP, a Delaware

  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, a Delaware

  corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ M. SCOTT DECAIN

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  M. Scott DeCain

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President,

  Capital Markets

  
	
   

  	
   

  	
   

  
						



 


Signature Page to Amendment No. 1 to Second


Amended and Restated Revolving Credit and Term Loan Agreement


 





















 


	
  ADMINISTRATIVE AGENT

  	
  JPMORGAN CHASE BANK, N.A., FORMERLY

  
	
  SWING LENDER, ISSUING

  	
  KNOWN AS JPMORGAN CHASE BANK

  
	
  LENDER, AND LENDER:

  	
   

  
	
   

  	
  By:

  	
  /s/ CHARLES HOAGLAND

  	
   

  
	
   

  	
   

  	
  Charles Hoagland

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  CO-SYNDICATION AGENT

  	
  BANK OF AMERICA, N.A.

  
	
  AND LENDER:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MICHAEL W. EDWARDS

  	
   

  
	
   

  	
   

  	
  Michael W. Edwards

  
	
   

  	
   

  	
  Senior Vice President

  



 





















 


	
  CO-SYNDICATION AGENT

  	
  EUROHYPO AG, NEW YORK BRANCH

  
	
  AND LENDER:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BEN J. MARCIANO

  	
   

  
	
   

  	
   

  	
  Ben J. Marciano

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ STEPHEN COX

  	
   

  
	
   

  	
   

  	
  Stephen Cox

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  KEY BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JAMES B. MCLAUGHLIN

  	
   

  
	
   

  	
   

  	
  James B. McLaughlin

  
	
   

  	
   

  	
  Senior Vice President

  



 





















 


	
  LENDER:

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ CATHY A. CASEY

  	
   

  
	
   

  	
   

  	
  Cathy A. Casey

  
	
   

  	
   

  	
  Director

  



 





















 


	
  LENDER:

  	
  CITICORP NORTH AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JEANNE CRAIG

  	
   

  
	
   

  	
   

  	
  Jeanne Craig

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  HYPO REAL ESTATE CAPITAL

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ EVAN F. DENNER

  	
   

  
	
   

  	
   

  	
  Evan F. Denner

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PAVLINA JIROUTKOVA

  	
   

  
	
   

  	
   

  	
  Pavlina Jiroutkova

  
	
   

  	
   

  	
  Director

  



 





















 


	
  LENDER:

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DANIEL TWENGE

  	
   

  
	
   

  	
   

  	
  Daniel Twenge

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ GORDON MACARTHUR

  	
   

  
	
   

  	
   

  	
  Gordon MacArthur

  
	
   

  	
   

  	
  Authorized Signatory

  



 





















 


	
  LENDER:

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ WALTER WHITT

  	
   

  
	
   

  	
   

  	
  Walter Whitt

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  COMMERZBANK AG, NEW YORK AND

  
	
   

  	
  GRAND CAYMAN BRANCHES

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JAMES BRETT

  	
   

  
	
   

  	
   

  	
  James Brett

  
	
   

  	
   

  	
  Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DAVID GOLDMAN

  	
   

  
	
   

  	
   

  	
  David Goldman

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  ING REAL ESTATE FINANCE (USA) LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DANIEL SLIWAK

  	
   

  
	
   

  	
   

  	
  Daniel Sliwak

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  MERRILL LYNCH CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN C. ROWLAND

  	
   

  
	
   

  	
   

  	
  John C. Rowland

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  PB CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DARYLE AGUAM

  	
   

  
	
   

  	
   

  	
  Daryle Aguam

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MICHAEL E. ASHEROFF

  	
   

  
	
   

  	
   

  	
  Michael E. Asheroff

  
	
   

  	
   

  	
  Associate

  



 





















 


	
  LENDER:

  	
  BAYERISCHE LANDESBANK,

  
	
   

  	
  NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ GEORGE GNAD

  	
   

  
	
   

  	
   

  	
  George Gnad

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ NORMAN MCCLAVE

  	
   

  
	
   

  	
   

  	
  Norman McClave

  
	
   

  	
   

  	
  First Vice President

  



 





















 


	
  LENDER:

  	
  BRANCH BANKING & TRUST CO.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ RONALD P. GUDBRANDSEN

  	
   

  
	
   

  	
   

  	
  Ronald P. Gudbrandsen

  
	
   

  	
   

  	
  Senior Vice President

  



 





















 


	
  LENDER:

  	
  CALYON NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN A. WAIN

  	
   

  
	
   

  	
   

  	
  John A. Wain

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DANIEL J. REDDY

  	
   

  
	
   

  	
   

  	
  Daniel J. Reddy

  
	
   

  	
   

  	
  Director

  



 





















 


	
  LENDER:

  	
  LASALLE BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ROBERT E. GOECKEL

  	
   

  
	
   

  	
   

  	
  Robert E. Goeckel

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  MANUFACTURERS AND TRADERS

  
	
   

  	
  TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MATTHEW LIND

  	
   

  
	
   

  	
   

  	
  Matthew Lind

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  EMIGRANT SAVINGS BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PATRICIA GOLDSTEIN

  	
   

  
	
   

  	
   

  	
  Patricia Goldstein

  
	
   

  	
   

  	
  Senior Executive Vice President

  



 





















 


	
  LENDER:

  	
  AIB DEBT MANAGEMENT LTD

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANTHONY O’REILLY

  	
   

  
	
   

  	
   

  	
  Anthony O’Reilly

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DENISE MAGYER

  	
   

  
	
   

  	
   

  	
  Denise Magyer

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
  LENDER:

  	
  KBC BANK NV

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ KENNETH D. CONNOR

  	
   

  
	
   

  	
   

  	
  Kenneth D. Connor

  
	
   

  	
   

  	
  Vice President, Real Estate

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MICHAEL CURRAN

  	
   

  
	
   

  	
   

  	
  Michael Curran

  
	
   

  	
   

  	
  First Vice President

  



 





















 


	
  LENDER:

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ WILLIAM R. LYNCH, III

  	
   

  
	
   

  	
   

  	
  William R. Lynch, III

  
	
   

  	
   

  	
  Senior Vice President

  



 





















 


	
  LENDER:

  	
  WELLS FARGO BANK,

  
	
   

  	
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ERIN P. PEART

  	
   

  
	
   

  	
   

  	
  Erin P. Peart

  
	
   

  	
   

  	
  Senior Vice President

  



 





















 


	
  LENDER:

  	
  SOVEREIGN BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ KATHERINE FELPEL

  	
   

  
	
   

  	
   

  	
  Katherine Felpel

  
	
   

  	
   

  	
  Assistant Vice President