SEC Uses in Additional Shares Clause

Additional Shares from Underwriting Agreement

THE MILLS CORPORATION, a Delaware corporation (the Company), and the sole general partner of The Mills Limited Partnership, a Delaware limited partnership (the Operating Partnership), proposes to issue and sell to Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill Lynch), Morgan Stanley & Co. Incorporated (Morgan Stanley), Wachovia Capital Markets, LLC (Wachovia) and each of the other underwriters named in Schedule A hereto (collectively the Underwriters, which term shall also include any underwriter substituted as hereinafter provided in Section 9 hereof), for whom Merrill Lynch, Morgan Stanley and Wachovia are acting as representatives (in such capacity, the Representatives), an aggregate of 8,000,000 depositary shares each representing 1/100 of a share of the Companys 7.875% Series G Cumulative Redeemable Preferred Stock, par value $0.01 per share (the Firm Shares), to be issued under a deposit agreement (the Deposit Agreement) among the Company, EquiServe Trust Company, N.

Additional Shares. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,200,000 depositary shares each representing 1/100 of a share of the Companys Series G Preferred Stock at the price per share set forth in Schedule B. The option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in part from time to time, only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Firm Shares, upon notice by the Representatives to the Company setting forth the number of Additional Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Additional Shares. Any such time and date of delivery (an Additional Closing Date) shall be determined by the Representatives, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Date, as hereinafter defined. If the option is exercised as to all or any portion of the Additional Shares, each of the Underwriters, acting severally and not jointly, will purchase its share of the total number of Additional Shares then being purchased proportionate to its share of the Firm Shares set forth in Schedule A opposite the name of such Underwriter, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional shares.