UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
AND EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported):
February 25,
2010
CBL
& ASSOCIATES PROPERTIES, INC.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
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1-12494
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62-1545718
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(State
or Other Jurisdiction of
Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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Suite
500, 2030 Hamilton Place Blvd., Chattanooga, TN 37421
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(Address
of principal executive office, including zip code)
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(423)
855-0001
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(Registrant’s
telephone number, including area code)
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N/A
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(Former
name, former address and former fiscal year, if changed since last
report)
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Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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On
February 25, 2010, CBL & Associates Limited Partnership, a Delaware limited
partnership which is the operating partnership (the “Operating Partnership”) of
CBL & Associates Properties, Inc. (the “Company”), supplemented its Third
Amended and Restated Agreement of Limited Partnership, as amended to date, with
an Amended and Restated Certificate of Designation of 7.375% Series D Cumulative
Redeemable Preferred Units, relating to the preferred units of limited
partnership in the Operating Partnership (the “Series D Preferred Units”)
underlying shares of the Company’s 7.375% Series D Cumulative Redeemable
Preferred Stock, $0.01 par value per share, with a liquidation preference of
$250.00 per share (the “Series D Preferred Stock”). The Operating
Partnership issued 630,000 of the Series D Preferred Units, the terms of which
parallel the terms of the Series D Preferred Stock, to a wholly owned subsidiary
of the Company in conjunction with the closing of the transaction described in
Item 3.03 of this report.
Item
3.03
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Material
Modification to Rights of Security
Holders.
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On March
1, 2010, the Company completed an underwritten public offering of 6,300,000
depositary shares, each representing 1/10
th
of a
share of its Series D Preferred Stock at a liquidation preference of $25.00 per
depositary share, pursuant to the underwriting agreement filed as an exhibit to
the Company’s Form 8-K dated February 24, 2010. The Company has
granted the underwriters of the offering a 30-day option to purchase up to an
additional 945,000 depository shares to cover over-allotments. The terms
of the Series D Preferred Stock were established in an Amended and Restated
Certificate of Designations (“Amended and Restated Certificate of Designations”)
filed with the Delaware Secretary of State on February 25, 2010. A
copy of the Amended and Restated Certificate of Designations is attached hereto
as Exhibit 4.9.1.
Under the
Amended and Restated Certificate of Designations, holders of the depositary
shares and the underlying Series D Preferred Stock are entitled to receive
cumulative dividends, in equal priority with the holders of the Company’s other
outstanding series of preferred stock and before any dividends are paid to the
common stockholders, at the rate per share of 7.375% of the stated liquidation
preference per annum, payable quarterly in arrears. Upon any
liquidation, dissolution or winding-up of the affairs of the Company, whether
voluntary or involuntary, the holders of the Series D Preferred Stock shall be
entitled to receive out of the assets of the Company legally available for
distribution to stockholders, in equal priority with the holders of the
Company’s other outstanding series of preferred stock, an amount equal to the
stated liquidation preference per share, plus any accrued and unpaid dividends
thereon to the date of payment, before any distribution or payment shall be made
to the holders of any junior securities, including the common
stock.
Item
7.01
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Regulation
FD Disclosure.
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The
Company’s Press Release concerning the March 1, 2010 completion of an
underwritten public offering of 6,300,000 depositary shares, each representing
1/10
th
of a
share of its 7.375% Series D Preferred Stock, is furnished as an exhibit to this
report.
Item
9.01
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Financial
Statements and Exhibits.
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(a)
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Financial
Statements of Businesses Acquired
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(b)
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Pro
Forma Financial Information
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Exhibit
Number
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Description
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4.9.1
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Amended
and Restated Certificate of Designations, dated February 25, 2010,
relating to the Company’s 7.375% Series D Cumulative Redeemable Preferred
Stock
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10.1.3
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Amended
and Restated Certificate of Designation, dated February 25, 2010, of
7.375% Series D Cumulative Redeemable Preferred Units
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99.1
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Press
Release – CBL & Associates Properties, Inc. Announces Closing of
$127.9 Million Preferred Stock
Offering
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
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CBL
& ASSOCIATES PROPERTIES, INC.
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/s/
Farzana K. Mitchell
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Farzana
K. Mitchell
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Executive
Vice President - Finance
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Date:
March 1, 2010
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS, NUMBER,
VOTING
POWERS, PREFERENCES AND RIGHTS
OF
7.375%
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
CBL
& ASSOCIATES PROPERTIES, INC.
Pursuant
to Section 151 of the
General
Corporation Law of the State of Delaware
The
undersigned DOES HEREBY CERTIFY that the following resolution was duly adopted
by the Board of Directors of CBL & Associates Properties, Inc., a Delaware
corporation (hereinafter called the “Corporation”), with the preferences and
rights set forth therein relating to dividends, conversion, redemption,
dissolution and distribution of assets of the Corporation having been fixed by
the Board of Directors pursuant to authority granted to it under Article IV of
the Corporation’s Amended and Restated Certificate of Incorporation, as amended
(the “Certificate of Incorporation”), and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware:
RESOLVED: That,
pursuant to authority conferred upon the Board of Directors by the Amended and
Restated Certificate of Incorporation of the Corporation, the Board of Directors
hereby authorizes the issuance of an additional 995,000 shares of 7.375% Series
D Cumulative Redeemable Preferred Stock, $.01 par value, of the Corporation, for
an amended and restated total of 1,800,000 shares of such stock authorized for
issuance, and hereby fixes the designations, powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of such shares, in addition to those set
forth in such Certificate of Incorporation, as follows:
1.
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Designation
and Amount.
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The
shares of such series shall be designated 7.375% Series D Cumulative Redeemable
Preferred Stock” (the “Series D Preferred Stock”) and the number of shares
constituting such series shall be 1,800,000. The designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Series D Preferred Shares shall be subject in all cases to the provisions of
Article IV of the Certificate of Incorporation regarding limitations on
beneficial and constructive ownership of the Corporation’s capital
stock.
2.
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Dividends
and Distribution Rights.
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(a)
Holders of Series D Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors of the Corporation (the “Board of
Directors”), out of assets of the Corporation legally available for the payment
of dividends, cumulative preferential cash dividends at the rate of 7.375% per
annum of the $250.00 liquidation preference. Such dividends shall be
cumulative from and including the date of the original issue by the Corporation
of shares of Series D Preferred Stock and shall be payable quarterly in arrears
on the 30th day of March, June, September, and December of each year or, if not
a business day, the next succeeding business day (each, a “Dividend Payment
Date”). The first dividend shall be paid on March 30,
2005. Such first dividend and any dividend payable on the Series D
Preferred Stock for any other partial dividend period shall be computed on the
basis of a 360-day year consisting of twelve 30-day months. Dividends
will be payable to holders of record as they appear in the stockholder records
of the Corporation at the close of business on the applicable record date, which
shall be the 15th day of the calendar month in which the applicable Dividend
Payment Date falls or on such other date designated by the Board of Directors
for the payment of dividends that is not more than 30 nor less than 10 days
prior to such Dividend Payment Date (each, a “Dividend Record
Date”).
(b) No
dividends on the Series D Preferred Stock shall be declared by the Board of
Directors or paid or set apart for payment by the Corporation at such time as
the terms and provisions of any agreement of the Corporation, including any
agreement relating to its indebtedness, 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.
(c)
Notwithstanding anything contained herein to the contrary, dividends on the
Series D Preferred Stock shall accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such dividends, and whether or not such dividends are
declared. Accrued but unpaid dividends on the Series D Preferred
Stock shall accumulate as of the Dividend Payment Date on which they first
become payable.
(d)
Except as set forth in the next sentence, no dividends shall be declared or paid
or set apart for payment on any shares of the Corporation’s Common Stock, $.01
par value (“Common Stock”), or shares of any other class or series of capital
stock of the Corporation ranking, as to dividends, on a parity with or junior to
the Series D Preferred Stock (other than a dividend paid in shares of Common
Stock or in shares of any other class or series of capital stock ranking junior
to the Series D Preferred Stock as to dividends and upon liquidation) for any
period unless full cumulative dividends on the Series D Preferred Stock for all
past dividend periods and the then current dividend 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. When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series D Preferred Stock and the
shares of any other series of preferred stock ranking on a parity as to
dividends with the Series D Preferred Stock, all dividends declared upon the
Series D Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with the Series D Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Series D Preferred
Stock and such other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series D Preferred
Stock and such other series of preferred stock (which shall not include any
accrual in respect of unpaid dividends on such other series of preferred stock
for prior dividend periods if such other series of preferred stock does not have
a cumulative dividend) bear to each other. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series D Preferred Stock which may be in
arrears.
(e)
Except as provided in paragraph 2(d), unless full cumulative dividends on the
Series D Preferred Stock shall have been or contemporaneously are declared and
paid in cash or declared and a sum sufficient for the payment thereof in cash is
set apart for payment for all past dividend periods and the then current
dividend period, no dividends (other than in Common Stock or other capital stock
ranking junior to the Series D Preferred Stock as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or other
dividend shall be declared or made upon the Common Stock or any other capital
stock of the Corporation ranking junior to or on parity with the Series D
Preferred Stock as to dividends or amounts upon liquidation nor shall any shares
of Common Stock, or any other shares of capital stock of the Corporation ranking
junior to or on a parity with the Series D Preferred Stock as to dividends 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 shares) by the Corporation (except by conversion into
or exchange for other shares of capital stock of the Corporation ranking junior
to the Series D Preferred Stock as to dividends and upon liquidation and except
for the acquisition of shares that have been designated as “Shares-in-Trust” in
accordance with the terms of the Certificate of Incorporation).
(f)
Holders of shares of Series D Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property or shares of stock, in excess of
full cumulative dividends on the Series D Preferred Stock as provided
above. Any dividend payment made on the Series D Preferred Stock
shall first be credited against the earliest accrued but unpaid dividends due
with respect to such shares which remains payable.
Upon any
voluntary or involuntary liquidation, dissolution or winding-up of the affairs
of the Corporation, the holders of shares of Series D Preferred Stock shall be
entitled to be paid out of the assets of the Corporation legally available for
distribution to its stockholders a liquidation preference of $250.00 per share,
plus an amount equal to any accrued and unpaid dividends to the date of payment
(whether or not declared), before any distribution or payment shall be made to
holders of shares of Common Stock or any other class or series of capital stock
of the Corporation ranking junior to the Series D Preferred Stock as to
liquidation rights. In the event that, upon such voluntary or
involuntary liquidation, dissolution or winding-up, the available assets of the
Corporation are insufficient to pay the amount of the liquidating distributions
on all outstanding shares of Series D Preferred Stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of the
Corporation ranking on a parity with the Series D Preferred Stock in the
distribution of assets, then the holders of the Series D Preferred Stock and all
other such classes or series of shares of capital stock shall share ratably in
any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively
entitled. Holders of Series D Preferred Stock shall be entitled to
written notice of any such liquidation. After payment of the full
amount of the liquidating distributions to which they are entitled, the holders
of Series D Preferred Stock will have no right or claim to any of the remaining
assets of the Corporation. The consolidation or merger of the
Corporation with or into any other corporation, trust or entity, or of any other
corporation, trust or other entity with or into the Corporation, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Corporation shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(a)
Shares of Series D Preferred Stock shall not be redeemable prior to December 13,
2009; provided, however, that the Corporation may, prior to such date and in
accordance with the terms of the Certificate of Incorporation, purchase shares
of Series D Preferred Stock designated as “Shares-In-Trust”
thereunder. On or after December 13, 2009, the Corporation, at its
option upon not less than 30 nor more than 60 days’ written notice, may redeem
the Series D Preferred Stock, in whole or in part, at any time or from time to
time, for cash at a redemption price of $250.00 per share, plus any accrued and
unpaid dividends thereon up to and including the date fixed for redemption
(except as provided below), without interest. If fewer than all of
the outstanding shares of Series D Preferred Stock are to be redeemed, the
shares of Series D Preferred Stock to be redeemed shall be redeemed pro rata (as
nearly as may be practicable without creating fractional shares) or by lot or by
any other equitable method determined by the Corporation. Holders of
Series D Preferred Stock to be redeemed shall surrender such Series D Preferred
Stock at the place designated in such notice and shall be entitled to the
redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. If notice of redemption of any
Series D Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Corporation in trust for the benefit of
the holders of any shares of Series D Preferred Stock so called for redemption,
then from and after the redemption date dividends shall cease to accrue on such
Series D Preferred Stock, such shares of Series D Preferred Stock shall no
longer be deemed outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price plus any accrued and
unpaid dividends payable upon such redemption. Nothing herein shall
prevent or restrict the Corporation’s right or ability to purchase, from time to
time either at a public or a private sale, all, or any portion, of the
outstanding Series D Preferred Stock at such price or prices as the Corporation
may determine, subject to the provisions of applicable law.
(b)
Unless full cumulative dividends on all Series D Preferred Stock shall have been
or contemporaneously are declared and paid in cash or declared and a sum
sufficient for the payment thereof in cash set apart for payment for all past
dividend periods and the then current dividend period, no Series D Preferred
Stock shall be redeemed unless all outstanding shares of Series D Preferred
Stock are simultaneously redeemed and the Corporation shall not purchase or
otherwise acquire directly or indirectly any shares of Series D Preferred Stock
(except by exchange for shares of capital stock of the Corporation ranking
junior to the Series D Preferred Stock as to dividends and amounts upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase by the Corporation in accordance with the terms of the Certificate of
Incorporation of shares of the Corporation designated as “Shares-in-Trust”
thereunder or the purchase or acquisition of Series D Preferred Stock pursuant
to a purchase or exchange offer made on the same terms to holders of all
outstanding shares of Series D Preferred Stock.
(c)
Notice of redemption shall be mailed by the Corporation, postage prepaid, not
less than 30 nor more than 60 days prior to the redemption date, addressed to
the respective holders of record of the shares of Series D Preferred Stock to be
redeemed at their respective addresses as they appear on the share transfer
records of the Corporation. No failure to give such notice or any
defect thereto or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series D Preferred Stock except as to a
holder to whom notice was defective or not given. Each notice shall
state (i) the redemption date; (ii) the redemption price; (iii) the number of
shares of Series D Preferred Stock to be redeemed; (iv) the place or places
where certificates for shares of Series D Preferred Stock are to be surrendered
for payment of the redemption price; and (v) that dividends on the Series D
Preferred Stock to be redeemed shall cease to accrue on such redemption
date. If fewer than all of the shares of Series D Preferred Stock
held by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares of Series D Preferred Stock held by such
holder to be redeemed.
(d)
Immediately prior to any redemption of Series D Preferred Stock, the Corporation
shall pay, in cash, any accumulated and unpaid dividends through the redemption
date, unless a redemption date falls after a Dividend Record Date and prior to
the corresponding Dividend Payment Date, in which case each holder of Series D
Preferred at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on Series
D Preferred Stock for which a notice of redemption has been given.
(e) All
shares of the Series D Preferred Stock redeemed or repurchased pursuant to this
paragraph 4 shall be retired and shall be restored to the status of authorized
and unissued shares of preferred stock, without designation as to series and may
thereafter be reissued as shares of any series of preferred stock.
(f) The
Series D Preferred Stock shall have no stated maturity and shall not be subject
to any sinking fund or mandatory redemption; provided, however, that the Series
D Preferred Stock owned by a stockholder in excess of the Ownership Limit (as
defined in the Certificate of Incorporation) shall be subject to the provisions
of Article IV of the Certificate of Incorporation.
(a)
Holders of the Series D Preferred Stock shall not have any voting rights, except
as provided by applicable law and as set forth in this paragraph 5.
(b)
Whenever dividends on any shares of Series D Preferred Stock shall be in arrears
for six or more consecutive or non-consecutive quarterly periods (a “Preferred
Dividend Default”), the holders of such Series D Preferred Stock (voting
together as a class with the holders of all other classes or series of equity
securities of the Corporation ranking on parity with the Series D Preferred
Stock upon which like voting rights have been conferred and are exercisable
(“Parity Preferred”)) shall be entitled at the next annual meeting of
stockholders to elect two additional directors to the Board of Directors (the
“Preferred Directors”). Notwithstanding the foregoing, if, prior to
the election of Preferred Directors in the manner described in this paragraph,
all accumulated dividends are paid on the Series D Preferred Stock and all other
classes or series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, no Preferred Directors shall be so
elected. Any Preferred Directors so elected will serve until all
unpaid cumulative dividends have been paid or declared and set apart for
payment. Upon such election, the size of the Board of Directors will
be increased by two directors. If and when all such accumulated
dividends shall have been paid on the Series D Preferred Stock and all other
classes or series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Director so
elected will terminate and the size of the Board of Directors will be reduced
accordingly. So long as a Preferred Dividend Default shall continue,
any vacancy in the office of a Preferred Director may be filled by written
consent of the Preferred Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the outstanding
Series D Preferred Stock when they have the voting rights described above
(voting together as a class with the holders of all other classes or series of
Parity Preferred). Each of the Preferred Directors shall be entitled
to one vote on any matter.
(c) The
affirmative vote or consent of the holders of two-thirds of the shares of Series
D Preferred Stock and each other class or series of Parity Preferred outstanding
at the time (voting together as a class), given in person or by proxy, either in
writing or at a meeting, will be required to: (i) authorize or
create, or increase the authorized or issued amount of, any class or series of
capital stock ranking senior to the Series D Preferred Stock with respect to
payment of dividends or the distribution of assets upon liquidation, dissolution
or winding-up of the Corporation or reclassify any authorized shares of the
Corporation into such capital stock, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such capital stock; or (ii) amend, alter or repeal the provisions of the
Certificate of Incorporation or this Certificate of Designations, whether by
merger, consolidation, transfer or conveyance of substantially all of its assets
or otherwise (an “Event”), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series D Preferred Stock or the
holders thereof; provided however, with respect to the occurrence of any of the
Events set forth in (ii) above, so long as the Series D Preferred Stock remains
outstanding with the terms thereof materially unchanged, taking into account
that, upon the occurrence of an Event, the Corporation may not be the surviving
entity, the occurrence of such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power of holders
of Series D Preferred Stock and in such case such holders shall not have any
voting rights with respect to the Events set forth in (ii)
above. Except as may be required by law, holders of Series D
Preferred Stock shall not be entitled to vote with respect to (A) any increase
or decrease in the total number of authorized shares of common stock or
preferred stock, (B) any increase, decrease or issuance of any series of capital
stock including the Series D Preferred Stock or (C) the creation or issuance of
any other series of capital stock, in each case referred to in clauses (A), (B)
or (C) above, ranking on a parity with or junior to the Series D Preferred Stock
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding-up.
(d) The
foregoing voting provisions of this paragraph 5 shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series D Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds, in cash, shall have been deposited in trust to effect such
redemption.
(e) In
any matter in which the Series D Preferred Stock may vote (as expressly provided
herein or as may be required by law), each share of Series D Preferred Stock
shall be entitled to one vote per each $25.00 in liquidation
preference.
The
shares of Series D Preferred Stock shall not be convertible into or exchangeable
for any other property or securities of the Corporation.
The
Series D Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, dissolution or winding-up of the Corporation, rank (a) senior to
the Common Stock and to all equity securities ranking junior to such Series D
Preferred Stock; (b) on a parity with all equity securities issued by the
Corporation the terms of which specifically provide that such equity securities
rank on a parity with the Series D Preferred Stock; and (c) junior to all equity
securities issued by the Corporation (in accordance with this Certificate of
Designations) the terms of which specifically provide that such equity
securities rank senior to the Series D Preferred Stock. For purposes
of this paragraph 7, the term “equity securities” does not include convertible
debt securities
.
8.
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Exclusion
of Other Rights.
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The
Series D Preferred Stock shall not have any preferences or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption other than as expressly set
forth in the Certificate of Incorporation and this Certificate of
Designations.
9.
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Headings
of Subdivisions.
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The
headings of the various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the provisions
hereof.
10.
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Severability
of Provisions.
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If any
preferences or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series D Preferred Stock set forth in the Certificate of
Incorporation and this Certificate of Designations is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy, all
other preferences or other rights, voting powers, restrictions, limitations as
to distributions, qualifications or terms or conditions of redemption of Series
D Preferred Stock set forth in the Certificate of Incorporation which can be
given effect without the invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect and no preferences or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the Series
D Preferred Stock herein set forth shall be deemed dependent upon any other
provision thereof unless so expressed therein.
11.
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No
Preemptive Rights.
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No holder
of Series D Preferred Stock shall be entitled to any preemptive rights to
subscribe for or acquire any unissued shares of capital stock of the Corporation
(whether now or hereafter authorized) or securities of the Corporation
convertible into or carrying a right to subscribe to or acquire shares of
capital stock of the Corporation.
SIGNATURE APPEARS ON NEXT
PAGE
IN
WITNESS WHEREOF, CBL & Associates Properties, Inc. has caused this Amended
and Restated Certificate of Designations, Number, Voting Powers, Preferences and
Rights of 7.375% Series D Cumulative Redeemable Preferred Stock to be duly
executed by its Vice Chairman of the Board and Chief Financial Officer this
25
th day of
February
,
2010.
CBL & Associates
Properties, Inc.
By:
/s/ John N.
Foy
John N. Foy
Vice Chairman of the
Board
and Chief Financial
Officer
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATION
OF
7.375%
SERIES D CUMULATIVE REDEEMABLE PREFERRED UNITS
OF
CBL
& ASSOCIATES LIMITED PARTNERSHIP
Pursuant
to Article 4.4 of the
Second
Amended and Restated Partnership Agreement of
CBL &
Associates Limited Partnership
WHEREAS,
CBL & Associates Properties, Inc. (the “Company”) previously issued, in
December 2004, 700,000 shares (the “2004 Offering”) of 7.375% Series D
Cumulative Redeemable Preferred Stock (the “Preferred Stock”); and
WHEREAS,
the Company has committed to issue, in March 2010, an additional 630,000 shares
(the “2010 Offering”) of the Preferred Stock; and
WHEREAS,
the Company previously contributed the net proceeds of the 2004 Offering to CBL
& Associates Limited Partnership (the “Operating Partnership”), and the
Company and the Operating Partnership now desire that the Company contribute net
proceeds of the 2010 Offering to the Operating Partnership, in each case in
exchange for preferred units having substantially the same economic rights and
terms as the Preferred Stock;
WHEREAS,
Article 4.4 of the Second Amended and Restated Partnership Agreement of the
Operating Partnership (the “Partnership Agreement”) provides for a Preferred
Unit Designation, setting forth, in sufficient detail, the economic rights and
terms of the class or series of preferred units.
NOW
THEREFORE, CBL Holdings I, Inc., the general partner of the Operating
Partnership (the “General Partner”) hereby amends and restates in full, as so
amended, the designated terms of a series of preferred units, with the
designations, powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
such preferred units, being hereby fixed as follows:
1.
|
Designation
and Amount.
|
The units
of such series shall be designated “7.375% Series D Cumulative Redeemable
Preferred Units” (the “Series D Preferred Units”) and the number of units
constituting such series shall be 1,800,000. The designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Series D Preferred Units shall be subject in all cases to the provisions of the
Partnership Agreement.
2.
|
Dividends
and Distribution Rights.
|
(a) Holders
of Series D Preferred Units shall be entitled to receive, when, as and if
declared by the General Partner, out of assets of the Operating Partnership
legally available for the payment of dividends, cumulative preferential cash
dividends at the rate of 7.375% per annum of the $250.00 liquidation
preference. Such dividends shall be cumulative from and including the
date of the original issue by the Operating Partnership of the Series D
Preferred Units and shall be payable quarterly in arrears on the 30th day of
March, June, September, and December of each year or, if not a business day, the
next succeeding business day (each, a “Dividend Payment Date”). The
first dividend shall be paid on March 30, 2005. Such first dividend
and any dividend payable on the Series D Preferred Units for any other partial
dividend period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends will be payable to holders of record
as they appear in the records of the Operating Partnership at the close of
business on the applicable record date, which shall be the 15th day of the
calendar month in which the applicable Dividend Payment Date falls or on such
other date designated by the General Partner for the payment of dividends that
is not more than 30 nor less than 10 days prior to such Dividend Payment Date
(each, a “Dividend Record Date”).
(b) No
dividends on the Series D Preferred Units shall be declared by the General
Partner or paid or set apart for payment by the General Partner at such time as
the terms and provisions of any agreement of the Operating Partnership,
including any agreement relating to its indebtedness, 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.
(c) Notwithstanding
anything contained herein to the contrary, dividends on the Series D Preferred
Units shall accrue whether or not the Operating Partnership has earnings,
whether or not there are funds legally available for the payment of such
dividends, and whether or not such dividends are declared. Accrued
but unpaid dividends on the Series D Preferred Units shall accumulate as of the
Dividend Payment Date on which they first become payable.
(d) Except
as set forth in the next sentence, no dividends shall be declared or paid or set
apart for payment on any of the Operating Partnership’s Common Units (“Common
Units”), or units of any other class or series of units of the Operating
Partnership ranking, as to dividends, on a parity with or junior to the Series D
Preferred Units (other than a dividend paid in units of Common Units or in units
of any other class or series of units ranking junior to the Series D Preferred
Units as to dividends and upon liquidation) for any period unless full
cumulative dividends on the Series D Preferred Units for all past dividend
periods and the then current dividend 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. When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series D Preferred Units and the
units of any other series of preferred units ranking on a parity as to dividends
with the Series D Preferred Units, all dividends declared upon the Series D
Preferred Units and any other series of preferred units ranking on a parity as
to dividends with the Series D Preferred Units shall be declared pro rata so
that the amount of dividends declared per unit of Series D Preferred Units and
such other series of preferred units shall in all cases bear to each other the
same ratio that accrued dividends per unit on the Series D Preferred Units and
such other series of preferred units (which shall not include any accrual in
respect of unpaid dividends on such other series of preferred units for prior
dividend periods if such other series of preferred units does not have a
cumulative dividend) bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series D Preferred Units which may be in arrears.
(e) Except
as provided in paragraph 2(d), unless full cumulative dividends on the Series D
Preferred Units shall have been or contemporaneously are declared and paid in
cash or declared and a sum sufficient for the payment thereof in cash is set
apart for payment for all past dividend periods and the then current dividend
period, no dividends (other than in Common Units or other units ranking junior
to the Series D Preferred Units as to dividends and upon liquidation) shall be
declared or paid or set aside for payment or other dividend shall be declared or
made upon the Common Units or any other units of the Operating Partnership
ranking junior to or on parity with the Series D Preferred Units as to dividends
or amounts upon liquidation nor shall any units of Common Units, or any units of
any other class or series of units of the Operating Partnership ranking junior
to or on a parity with the Series D Preferred Units as to dividends 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 Operating Partnership (except by conversion
into or exchange for other units of the Operating Partnership ranking junior to
the Series D Preferred Units as to dividends and upon
liquidation). Nothing in the foregoing shall be deemed to preclude
the exercise of Rights (as defined in the Partnership Agreement) by any unit
holder in accordance with the Partnership Agreement.
(f) Holders
of Series D Preferred Units shall not be entitled to any dividend, whether
payable in cash, property or units, in excess of full cumulative dividends on
the Series D Preferred Units as provided above. Any dividend payment
made on the Series D Preferred Units shall first be credited against the
earliest accrued but unpaid dividends due with respect to such units which
remains payable.
Upon any
voluntary or involuntary liquidation, dissolution or winding-up of the affairs
of the Operating Partnership, the holders of units of Series D Preferred Units
shall be entitled to be paid out of the assets of the Operating Partnership
legally available for distribution to its Unit holders a liquidation preference
of $250.00 per unit, plus an amount equal to any accrued and unpaid dividends to
the date of payment (whether or not declared), before any distribution or
payment shall be made to holders of units of Common Units or any other class or
series of units of the Operating Partnership ranking junior to the Series D
Preferred Units as to liquidation rights. In the event that, upon
such voluntary or involuntary liquidation, dissolution or winding-up, the
available assets of the Operating Partnership are insufficient to pay the amount
of the liquidating distributions on all outstanding units of Series D Preferred
Units and the corresponding amounts payable on all units of other classes or
series of units of the Operating Partnership ranking on a parity with the Series
D Preferred Units in the distribution of assets, then the holders of the Series
D Preferred Units and all other such classes or series of units shall share
ratably in any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively
entitled. Holders of Series D Preferred Units shall be entitled to
written notice of any such liquidation. After payment of the full
amount of the liquidating distributions to which they are entitled, the holders
of Series D Preferred Units will have no right or claim to any of the remaining
assets of the Operating Partnership. The consolidation or merger of
the Operating Partnership with or into any corporation, trust or entity, or of
any corporation, trust or other entity with or into the Operating Partnership,
or the sale, lease or conveyance of all or substantially all of the property or
business of the Operating Partnership shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Operating
Partnership.
(a) Series
D Preferred Units shall not be redeemable prior to December 13,
2009. On or after December 13, 2009, the Operating Partnership, at
its option upon not less than 30 nor more than 60 days’ written notice, may
redeem the Series D Preferred Units, in whole or in part, at any time or from
time to time, for cash at a redemption price of $250.00 per unit, plus any
accrued and unpaid dividends thereon up to and including the date fixed for
redemption (except as provided below), without interest. If fewer
than all of the outstanding units of Series D Preferred Units are to be
redeemed, the units of Series D Preferred Units to be redeemed shall be redeemed
pro rata (as nearly as may be practicable without creating fractional units) or
by lot or by any other equitable method determined by the Operating
Partnership. Holders of Series D Preferred Units to be redeemed shall
surrender such Series D Preferred Units at the place designated in such notice
and shall be entitled to the redemption price and any accrued and unpaid
dividends payable upon such redemption following such surrender. If
notice of redemption of any Series D Preferred Units has been given and if the
funds necessary for such redemption have been set aside by the Operating
Partnership in trust for the benefit of the holders of any units of Series D
Preferred Units so called for redemption, then from and after the redemption
date dividends shall cease to accrue on such Series D Preferred Units, such
units of Series D Preferred Units shall no longer be deemed outstanding and all
rights of the holders of such units will terminate, except the right to receive
the redemption price plus any accrued and unpaid dividends payable upon such
redemption
.
Nothing
herein shall prevent or restrict the Operating Partnership’s right or ability to
purchase, from time to time either at a public or a private sale,
all, or
any portion, of the outstanding
Series D Preferred Units at such price or prices as the Operating Partnership
may determine, subject to the provisions of applicable
law.
(b) Unless
full cumulative dividends on all Series D Preferred Units shall have been or
contemporaneously are declared and paid in cash or declared and a sum sufficient
for the payment thereof in cash set apart for payment for all past dividend
periods and the then current dividend period, no Series D Preferred Units shall
be redeemed unless all outstanding units of Series D Preferred Units are
simultaneously redeemed and the Operating Partnership shall not purchase or
otherwise acquire directly or indirectly any units of Series D Preferred Units
(except by exchange for units of the Operating Partnership ranking junior to the
Series D Preferred Units as to dividends and amounts upon
liquidation).
(c) Notice
of redemption shall be mailed by the Operating Partnership, postage prepaid, not
less than 30 nor more than 60 days prior to the redemption date, addressed to
the respective holders of record of the units of Series D Preferred Units to be
redeemed at their respective addresses as they appear on the records of the
Operating Partnership. No failure to give such notice or any defect
thereto or in the mailing thereof shall affect the validity of the proceedings
for the redemption of any Series D Preferred Units except as to a holder to whom
notice was defective or not given. Each notice shall state (i) the
redemption date; (ii) the redemption price; (iii) the number of units of Series
D Preferred Units to be redeemed; (iv) the place or places where units of Series
D Preferred Units are to be surrendered for payment of the redemption price; and
(v) that dividends on the Series D Preferred Units to be redeemed shall cease to
accrue on such redemption date. If fewer than all of the units of
Series D Preferred Units held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of units of Series D
Preferred Units held by such holder to be redeemed.
(d) Immediately
prior to any redemption of Series D Preferred Units, the Operating Partnership
shall pay, in cash, any accumulated and unpaid dividends through the redemption
date, unless a redemption date falls after a Dividend Record Date and prior to
the corresponding Dividend Payment Date, in which case each holder of Series D
Preferred Units at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such units on the corresponding Dividend
Payment Date notwithstanding the redemption of such units before such Dividend
Payment Date. Except as provided above, the Operating Partnership
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series D Preferred Units for which a notice of redemption has been
given.
(e) All
Series D Preferred Units redeemed or repurchased pursuant to this paragraph 4
shall be retired and shall be restored to the status of authorized and unissued
units of preferred units, without designation as to Series D and may thereafter
be reissued as units of any series of preferred units.
(f) The
Series D Preferred Units shall have no stated maturity and shall not be subject
to any sinking fund or mandatory redemption.
(a) Holders
of the Series D Preferred Units shall not have any voting rights, except as set
forth in the Partnership Agreement.
(b) The
affirmative vote or consent of the holders of two-thirds of the units of Series
D Preferred Units and the holders of all other classes or series of Preferred
Units of the Operating Partnership ranking on parity with the Series D Preferred
Units upon which like voting rights have been conferred and are exercisable,
outstanding at the time (voting together as a class), given in person or by
proxy, either in writing or at a meeting, will be required to:
(i) authorize or create, or increase the authorized or issued amount of,
any class or series of units ranking senior to the Series D Preferred Units with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding-up of the Operating Partnership or reclassify any
authorized units of the Operating Partnership into such units, or create,
authorize or issue any obligation or security convertible into or evidencing the
right to purchase any such units; or (ii) amend, alter or repeal the provisions
of the Partnership Agreement or this Certificate of Designations, whether by
merger, consolidation, transfer or conveyance of substantially all of its assets
or otherwise (an “Event”), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series D Preferred Units or the
holders thereof; provided however, with respect to the occurrence of any of the
Events set forth in (ii) above, so long as the Series D Preferred Units remain
outstanding with the terms thereof materially unchanged, taking into account
that, upon the occurrence of an Event, the Operating Partnership may not be the
surviving entity, the occurrence of such Event shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting power of
holders of Series D Preferred Units and in such case such holders shall not have
any voting rights with respect to the Events set forth in (ii)
above. Except as may be required by law, holders of Series D
Preferred Units shall not be entitled to vote with respect to (A) any increase
or decrease in the total number of authorized Preferred Units, (B) any increase,
decrease or issuance of any series of Preferred Units including the Series D
Preferred Units or (C) the creation or issuance of any other series of Preferred
Units, in each case referred to in clauses (A), (B) or (C) above, ranking on a
parity with or junior to the Series D Preferred Units with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding-up.
(c) The
foregoing voting provisions of this paragraph 5 shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding units of Series D Preferred Units
shall have been redeemed or called for redemption upon proper notice and
sufficient funds, in cash, shall have been deposited in trust to effect such
redemption.
(d) In
any matter in which the Series D Preferred Units may vote (as expressly provided
herein or as may be required by law), each unit of Series D Preferred Units
shall be entitled to one vote per each $25.00 in stated liquidation
preference.
The units
of Series D Preferred Units shall not be convertible into or exchangeable for
any other property or units of the Operating Partnership.
The
Series D Preferred Units shall, with respect to dividend rights and rights upon
liquidation, dissolution or winding-up of the Operating Partnership, rank (a)
senior to the Common Units and to all units ranking junior to such Series D
Preferred Units; (b) on a parity with all units issued by the Operating
Partnership the terms of which specifically provide that such units rank on a
parity with the Series D Preferred Units; and (c) junior to all units issued by
the Operating Partnership (in accordance with this Certificate of Designations)
the terms of which specifically provide that such units rank senior to the
Series D Preferred Units. For purposes of this paragraph 7, the term “units”
does not include indebtedness convertible into units.
8.
|
Exclusion
of Other Rights.
|
The
Series D Preferred Units shall not have any preferences or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption other than as expressly set
forth in the Partnership Agreement and this Certificate of
Designations.
9.
|
Headings
of Subdivisions.
|
The
headings of the various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the provisions
hereof.
10.
|
Severability
of Provisions.
|
If any
preferences or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series D Preferred Units set forth in the Partnership
Agreement and this Certificate of Designations is invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
preferences or other rights, voting powers, restrictions, limitations as to
distributions, qualifications or terms or conditions of redemption of Series D
Preferred Units set forth in the Partnership Agreement which can be given effect
without the invalid, unlawful or unenforceable provision thereof shall,
nevertheless, remain in full force and effect and no preferences or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the Series
D Preferred Units herein set forth shall be deemed dependent upon any other
provision thereof unless so expressed therein.
11.
|
No
Preemptive Rights.
|
No holder
of Series D Preferred Units shall be entitled to any preemptive rights to
subscribe for or acquire any unissued units of the Operating Partnership
(whether now or hereafter authorized) or securities of the Operating Partnership
convertible into or carrying a right to subscribe to or acquire units of the
Operating Partnership.
SIGNATURE APPEARS ON NEXT
PAGE
IN
WITNESS WHEREOF, CBL Holdings I, Inc. has caused this Amended and Restated
Certificate of Designation of 7.375% Series D Cumulative Redeemable Preferred
Units to be duly executed by its Vice Chairman of the Board and Chief Financial
Officer this
25th
day of
February
,
2010.
CBL Holdings I,
Inc.
By: /s/ John
N.
Foy
John N. Foy
Vice Chairman of the
Board
and Chief Financial
Officer
Investor Contact: Katie
Reinsmidt, Vice President - Corporate Communications and Investor Relations,
423.490.8301,
katie_reinsmidt@cblproperties.com
CBL
& ASSOCIATES PROPERTIES INC. ANNOUNCES CLOSING OF
$127.9
MILLION PREFERRED STOCK OFFERING
CHATTANOOGA, Tenn.
(March 1, 2010) – CBL & Associates Properties, Inc. (NYSE: CBL)
announced today that it has closed an underwritten public offering of 6,300,000
depositary shares, each representing 1/10th of a share of its 7.375% Series D
Cumulative Redeemable Preferred Stock, liquidation preference $25.00 per
depositary share. The Company has granted the underwriters of the
offering a 30-day option to purchase up to an additional 945,000 depositary
shares to cover over-allotments. Including the shares issued in this
offering (without giving effect to any exercise of the underwriters' option to
purchase additional depositary shares), the Company now has 13,300,000
depositary shares outstanding, each representing 1/10th of a share of its 7.375%
Series D Cumulative Redeemable Preferred Stock. The securities are redeemable at
liquidation preference, plus accrued and unpaid dividends, at any time at the
option of the Company. These securities have no stated maturity, sinking fund or
mandatory redemption and are not convertible into any other securities of the
Company.
The
depositary shares were priced at $20.30 per share including accrued dividends
equating to a yield of 9.08%. The Company intends to use the estimated net
offering proceeds of $123.3 million to reduce outstanding borrowings under its
credit facilities and for general corporate purposes.
Banc of
America Securities LLC and Wells Fargo Securities, LLC served as the joint
book-running managers of the offering.
This
offering was made pursuant to an effective registration statement filed with the
Securities and Exchange Commission. This press release shall not constitute an
offer to sell or the solicitation of an offer to buy any securities nor shall
there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
The
offering may be made only by means of a prospectus and related prospectus
supplement. Copies of the prospectus supplement and accompanying prospectus
relating to these securities, when available, may be obtained from Banc of
America Securities LLC, Attention: Prospectus Department, 100 West 33rd Street,
3rd Floor, New York, New York 10001, 1-800-294-1322, email:
dg.prospectus_distribution@bofasecurities.com
and Wells Fargo Securities, LLC, 1525 West W.T. Harris Blvd., NC0675, Charlotte,
North Carolina 28262, Attn: Syndicate Operations, 1-800-326-5897, email:
prospectus.specialrequests@wachovia.com
.
About CBL & Associates
Properties, Inc.
CBL is
one of the largest and most active owners and developers of malls and shopping
centers in the United States. CBL owns, holds interests in or manages 163
properties, including 88 regional malls/open-air centers. The properties are
located in 27 states and total 87.8 million square feet including 3.0 million
square feet of non-owned shopping centers managed for third parties. CBL
currently has one project under construction totaling 500,000 square feet, The
Pavilion at Port Orange in Port Orange, FL. Headquartered in Chattanooga, TN,
CBL has regional offices in Boston (Waltham), MA, Dallas (Irving), TX, and St.
Louis, MO. Additional information can be found at
cblproperties.com
.
Information
included herein contains "forward-looking statements" within the meaning of the
federal securities laws. Such statements are inherently subject to
risks and uncertainties, many of which cannot be predicted with accuracy and
some of which might not even be anticipated. Future events and actual
events, financial and otherwise, may differ materially from the events and
results discussed in the forward-looking statements. The reader is
directed to the Company's various filings with the Securities and Exchange
Commission, including without limitation the Company's Annual Report on Form
10-K and the "Management's Discussion and Analysis of Financial Condition and
Results of Operations" incorporated by reference therein, for a discussion of
such risks and uncertainties.