Execution Copy
--------------
CBL & Associates Properties, Inc.
Common Stock
(par value $.01 per share)
Preferred Stock
(par value $.01 per share)
Common Stock Warrants
Underwriting Agreement
June 10, 2002
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time, CBL & Associates Properties, Inc., a Delaware
corporation (the "Company") and the owner of 100% of the issued and outstanding
shares of common stock of both CBL Holdings I, Inc., a Delaware corporation
("CBL Holdings I"), and CBL Holdings II, Inc., a Delaware corporation ("CBL
Holdings II"), the general partner and a limited partner, respectively, of CBL &
Associates Limited Partnership, a Delaware limited partnership (the "Operating
Partnership"), and such Operating Partnership
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain (i) shares of its Common Stock, par value $.01 per share, (ii) shares of
its Preferred Stock, par value $.01 per share or (iii) Common Stock Warrants
(the "Shares") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Firm Shares"). If specified in such Pricing
Agreement, the Company may grant to the Underwriters the right to purchase at
their election an additional number of shares, specified in such Pricing
Agreement as provided in Section 3 hereof (the "Optional Shares"). The Firm
Shares and the Optional Shares, if any, which the Underwriters elect to purchase
pursuant to Section 3 hereof are herein collectively called the "Designated
Shares".
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase any of the Shares. The obligation of the
Company to issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Firm Shares, the maximum
number of Optional Shares, if any, the initial public offering price of such
Firm and Optional Shares or the manner of determining such price, the purchase
price to the Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Shares, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2
2. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) The registration statement on Form S-3 (File No. 333-47041) in respect
of the Shares has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits thereto, but including all documents
incorporated by reference in the prospectus included therein, to the
Representatives for each of the other Underwriters, have been declared effective
by the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the "Act"), each in
the form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or, to the knowledge of the
Company or the Operating Partnership, threatened by the Commission (any
preliminary prospectus included in the registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the registration statement at the time such part of
the registration statement became effective, each as amended at the time such
part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating to the
Shares, in the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
3
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, when they became effective or were filed
with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading; and any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not, in the case of a registration statement which becomes
effective under the Act, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which are
filed under the Act or the Exchange Act with the Commission, an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they are
made when such documents are so filed, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Shares;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and the Registration Statement does
not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus does not and
will not, as of the applicable filing date of the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated Shares through the
4
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Shares;
(d) Neither the Company nor any of its partnership, limited liability
company or corporate subsidiaries ("subsidiaries", as used herein, shall include
the Operating Partnership and the Property Partnerships (regardless of the level
of the Company's direct or indirect ownership in such Property Partnership), as
each is defined in the Company's most recent annual report on Form 10-K) has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt or increase in excess of $15,000,000 in
short-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity (or, with respect to partnership subsidiaries, partnership
capital) or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) As of each Time of Delivery (as defined in Section 4 hereof), the
Company and its subsidiaries will have good and marketable title in fee simple
to, or good and marketable leasehold estates in (in each case as described in
the Prospectus), all real property described in the Prospectus as being owned by
them, and good and marketable title to all personal property owned by them which
is material to the business of the Company, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Prospectus
or such as do not materially and adversely affect the value of such property,
and do not interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid and
subsisting leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as set forth in or
contemplated by the Prospectus;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus; the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of the State of Tennessee; CBL Holdings I and the Operating Partnership
have been duly qualified as a foreign corporation or partnership for the
transaction of business and are in good standing (to the
5
extent the concept of good standing applies in any such jurisdiction) under the
laws of each other jurisdiction in which the Operating Partnership owns or
leases properties, or conducts any business, so as to require such
qualification, or are subject to no material disability by reason of the failure
to be so qualified or in good standing in any such jurisdiction; and each
subsidiary of the Company has been duly organized and is validly existing as a
partnership, limited liability company or corporation and is in good standing
under the laws of its jurisdiction of organization;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description of the capital stock contained in the Prospectus;
the Second Amended and Restated Agreement of Limited Partnership of CBL &
Associates Limited Partnership, as amended by the First Amendment to the Second
Amended and Restated Agreement of Limited Partnership, (the "Partnership
Agreement") and the partnership agreement of each other partnership subsidiary
of the Company has been duly authorized, executed and delivered by the Company
or the subsidiary of the Company that is the partner thereto and is valid,
legally binding and enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, receivership or other laws
affecting rights of creditors generally and by general equity principles,
including without limitation, those respecting the availability of specific
performance); the Company is the sole stockholder of each of CBL Holdings I and
CBL Holdings II; CBL Holdings I is the sole general partner of the Operating
Partnership and has a 1.091244% general partner interest in the Operating
Partnership; CBL Holdings II is a limited partner of the Operating Partnership
and has a 49.123566% limited partner interest in the Operating Partnership; all
of the partnership interests in the Operating Partnership and each other
partnership subsidiary of the Company, the Operating Partnership or the
Management Company, as the case may be, have been duly and validly authorized
and issued and (except as described in the Prospectus) are owned directly or
indirectly by the Company, CBL Holdings I, CBL Holdings II, the Operating
Partnership or the Management Company free and clear of all liens, encumbrances,
equities or claims; all of the membership or other equity interests in each
limited liability company subsidiary of the Company, the Operating Partnership
or the Management Company, as the case may be, has been duly and validly
authorized and issued and are owned directly or indirectly by the Company, CBL
Holdings I, CBL Holdings II, the Operating Partnership or the Management Company
free and clear of all liens, encumbrances, equities or claims; as of each Time
of Delivery, all of the issued shares of capital stock of the corporate
subsidiaries of the Company or the Operating Partnership, as the case may be,
shall have been duly and validly authorized and issued, shall be fully paid and
non-assessable and (except for directors' qualifying shares and except as set
forth in the Prospectus) shall be owned directly or indirectly by the Company,
CBL Holdings I, CBL Holdings II, the Operating Partnership or the Management
Company, as the case may be, free and clear of all liens, encumbrances, equities
or claims;
6
(h) The Shares have been duly and validly authorized, and, when the Firm
Shares are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Firm Shares and, in the case of any Optional
Shares, pursuant to Additional Shares Options (as defined in Section 3 hereof)
with respect to such Optional Shares, such Designated Shares will be duly and
validly issued and fully paid and non-assessable; the Shares conform to the
description thereof contained in the Registration Statement, and the Designated
Shares will conform to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Shares;
(i) The Units to be issued to the Company by the Operating Partnership upon
the contribution of the net proceeds from the sale of the Firm Shares and any
Optional Shares, if applicable, to the Operating Partnership by the Company have
been duly authorized and, when issued and delivered to the Company, such Units
will be owned by the Company and will be validly issued or created under the
limited partnership agreement of the Operating Partnership and fully paid and
the issuance of the Units will not be subject to any preemptive or similar
rights that would entitle any person to acquire any Units upon the issuance
thereof by the Operating Partnership.
(j) This Agreement and the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus have been duly and validly authorized
by the Company and the Operating Partnership and this Agreement has been duly
and validly executed and delivered by the Company and the Operating Partnership.
The issue and sale of the Shares by the Company and the compliance by the
Company and the Operating Partnership with all of the provisions of this
Agreement, any Pricing Agreement and each Additional Shares Option, if any, and
the consummation of the transactions contemplated herein and therein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject which would have a material adverse effect
on the Company or such subsidiaries, or which would have any adverse effect on
the consummation of the issue and sale of the Shares or any other transaction
contemplated hereby, nor will such action result in any violation of (a) the
provisions of the Certificate of Incorporation or By-laws of the Company, CBL
Holdings I or CBL Holdings II or the Certificate of Limited Partnership or
Partnership Agreement of the Operating Partnership or the partnership agreement
and certificate of limited partnership or the certificate of formation and
limited liability company agreement of any Property Partnership or (b) any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties which, in the case of Clause (b), would have a material adverse
effect on the Company or such subsidiaries, or which would have any adverse
effect on the consummation of the issue and sale of the Shares or any other
transaction contemplated hereby; and no consent,
7
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Shares by the Company or the consummation by the Company and the Operating
Partnership of the transactions contemplated by this Agreement or any Pricing
Agreement or any Additional Shares Option, except such as have been, or will
have been prior to each Time of Delivery (as defined in Section 4 hereof),
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole; and, to the
knowledge of the Company or the Operating Partnership, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(l) Neither the Company nor any of its corporate subsidiaries are in
violation of their respective Certificates of Incorporation or By-laws, neither
the Operating Partnership nor any of the Company's partnership subsidiaries are
in violation of their respective partnership agreements or any relevant
certificate of limited partnership and none of the Company's limited liability
company subsidiaries is in violation of its certificate of formation or limited
liability company agreement, nor is the Company or any of its subsidiaries in
default in any material respect in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
(m) The statements made in the Registration Statement under the captions
"Description of Capital Stock", "Description of Preferred Stock", "Description
of Common Stock", "Description of Common Stock Warrants" and "Federal Income Tax
Considerations" are, and the statements made in the Prospectus as amended or
supplemented under the corresponding captions to the extent made are, insofar as
such statements constitute a summary of documents referred to therein, accurate
summaries in all material respects, and insofar as such statements constitute a
summary of matters of law or legal conclusions, accurate summaries in all
material respects;
(n) Each of Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, and Deloitte & Touche LLP are
8
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(o) Neither the Company nor any of its subsidiaries, is or, after giving
effect to the transactions herein contemplated, will be an "investment company"
or an entity "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(p) No preemptive rights of stockholders exist with respect to any of the
Shares. No person or entity holds the rights to require or participate in the
registration under the Act of the Shares pursuant to the Registration Statement
and, except as set forth in the Prospectus and in the Partnership Agreement, no
person holds the right to require registration under the Act of any shares of
capital stock of the Company at any other time other than the rights of holders
of limited partnership interests in the Operating Partnership to require
registration under the Act of shares of Common Stock issuable upon exchange of
the limited partnership interests for shares of Common Stock;
(q) Neither the Company nor the Operating Partnership have any direct
corporate subsidiaries other than CBL & Associates Management, Inc. (the
"Management Company"), CBL North Haven, Inc., CBL Holdings I and CBL Holdings
II;
(r) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
(s) Commencing with its taxable year ended December 31, 1993, the Company
has been, and upon the sale of the Designated Shares, the Company will continue
to be organized and operated in conformity with the requirements for
qualification and taxation as a real estate investment trust (a "REIT") under
the Internal Revenue Code of 1986, as amended (the "Code"), the Company's
proposed method of operation as described in the Prospectus as amended or
supplemented will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code, and no actions have been
taken (or not taken which are required to be taken) which would cause such
qualification to be lost;
(t) The consolidated financial statements of the Company, including the
notes thereto, and the supporting schedules included incorporated by reference
in the Registration Statement and the Prospectus present fairly the financial
position as of the dates indicated and the results of operations, changes in
stockholders' equity and cash flows for the periods therein specified of the
Company and its consolidated subsidiaries; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved and
9
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein;
(u) Neither the Company, the Operating Partnership nor any of their
respective affiliates has taken, nor will any of them take, directly or
indirectly, any action resulting in a violation of Regulation M under the
Exchange Act, or is designed to cause or result in, or which might reasonably be
expected to constitute, cause or result in, the stabilization or manipulation of
the price of any security to facilitate the sale or resale of the Shares.
Neither the Company, nor the Operating Partnership has prior to the date hereof
offered or sold any securities which would be "integrated" with the offer and
sale of the Shares pursuant to the Registration Statement;
(v) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied; and
(w) Except as would not, singularly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries (including, but not limited
to, the Operating Partnership) taken as a whole, (i) to the Company's and the
Operating Partnership's knowledge, there does not exist on any of the properties
described in the Prospectus or in any document incorporated herein by reference
any Hazardous Materials (as hereinafter defined) in unlawful quantities, (ii) to
the Company's and the Operating Partnership's knowledge, there has not occurred
on or off such properties any unlawful spills, releases, discharges or disposal
of Hazardous Materials, and (iii) the Company and the subsidiaries (including,
but not limited to, the Operating Partnership) have not failed to comply with
all applicable local, state and Federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the generation,
recycling, sale, storage, handling, transport and disposal of any Hazardous
Materials.
As used herein, "Hazardous Material" shall include, without limitation, any
flammable explosives, radioactive materials, oil, petroleum, petroleum products,
asbestos or any material defined as "hazardous materials", "hazardous wastes",
"hazardous or toxic substances", under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.) (CERCLA), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Section 6901, et seq.), and in the regulations adopted
pursuant to each of the foregoing.
All of the properties currently owned by the Company and the subsidiaries
(including, but not limited to, the Operating Partnership) have been, and it is
contemplated that all future acquisitions will be, subjected to an environmental
assessment (which generally includes a site visit, interviews and database
review, but no subsurface sampling). These assessments and follow-up
investigations, if any, of the properties (including, where deemed appropriate
by the Company, asbestos sampling additional public record review, subsurface
sampling and other testing), of the properties
10
have not revealed any environmental liability that the Company believes would
have a material adverse effect on the Company and its subsidiaries, including,
but not limited to, the Operating Partnership, taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Shares and authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Additional Shares Option") to purchase at their election up to the number
of Optional Shares set forth in such Pricing Agreement, on the terms set forth
in the paragraph above, for the sole purpose of covering sales of Shares in
excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised by written notice from the Representatives to the
Company, given within a period specified in the Pricing Agreement, setting forth
the aggregate number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by the Representatives
but in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Representatives and the Company otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be purchased
by each Underwriter pursuant to the Pricing Agreement relating thereto, in the
form specified in such Pricing Agreement and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer or certified or
11
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, (i) with respect to the Firm Shares, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery" and (ii) with respect to the Optional Shares, if
any, in the manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the Underwriters' election to
purchase such Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing, such time and date,
if not the First Time of Delivery, herein called the "Second Time of Delivery".
Each such time and date for delivery is herein called a "Time of Delivery".
5. The Company and the Operating Partnership agree with each of the
Underwriters of any Designated Shares:
(a) To prepare the Prospectus as amended and supplemented in relation to
the applicable Designated Shares in a form approved by the Company and the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Shares or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Designated Shares and prior to any
Time of Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement after
any Time of Delivery for such Shares and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
such Shares, and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of the suspension
of the qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Shares or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such
order;
12
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Shares for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of the Pricing Agreement relating to such Designated
Shares from time to time, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a prospectus
is required at any time in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify the Representatives and upon their request to file such document and
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158 under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Shares and continuing to and including the date that is 90 days
(or such other period as may be specified in such Pricing Agreement) after the
last Time of Delivery for such Designated Shares, not to offer, sell, contract
to sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Designated Shares, including
but not limited to any securities that are convertible into or exchangeable for,
or that represent the right to receive, Shares or any such substantially similar
securities (other than pursuant to employee stock incentive plans or dividend
reinvestment plans existing on, or upon the
13
conversion of convertible or exchangeable securities outstanding as of, the date
of the Pricing Agreement for such Designated Shares) without the prior written
consent of the Representatives (it being understood that shares of Preferred
Stock that are not convertible into or exchangeable for, and that do not
represent the right to receive, shares of Common Stock or any such substantially
similar securities are not substantially similar to the Designated Shares);
(f) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), unaudited consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders
generally, and deliver to the Representatives (i) as soon as they are publicly
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as the
Representatives may from time to time reasonably request, subject in the case of
confidential information to mutually agreed upon confidentiality arrangements
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by the Company from the sale of the
Designated Shares pursuant to this Agreement in the manner specified in the
Prospectus as amended or supplemented under the caption "Use of Proceeds";
(i) To make the elections and take the procedural steps described in the
Prospectus under the caption "Federal Income Tax Considerations" in a timely
fashion, and to otherwise use its best efforts to meet the requirements to
qualify, for its taxable year ended December 31, 2002 and for subsequent years,
as a REIT; and
(j) To use its best efforts to list or supplementally list, subject to
notice of issuance, the Designated Shares on the New York Stock Exchange (the
"Exchange").
(k) Neither the Company nor the Operating Partnership will at any time,
directly or indirectly, take any action designed to, or which might reasonably
be expected to, cause or result in, or which has constituted or which might
reasonably be
14
expected to constitute, a violation of Regulation M under the Exchange Act, or
the stabilization of the price of its capital stock to facilitate the sale or
resale of any of the Shares.
6. The Company and the Operating Partnership covenant and agree with the
several Underwriters of any Designated Shares that the Company and the Operating
Partnership will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) the filing fees incident to any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (v) the cost of preparing certificates for the Shares; (vi) the cost and
charges of any transfer agent or registrar or dividend disbursing agent; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder and under any Additional Shares Option which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company and the Operating Partnership in
or incorporated by reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the condition that the Company and the Operating
Partnership shall have performed all of their obligations hereunder theretofore
to be performed in all material respects, and the following additional
conditions:
(a) The Prospectus as amended or supplemented shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for
15
that purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated each
Time of Delivery for such Designated Shares, with respect to the incorporation
of the Company, the organization of the Operating Partnership, the validity of
the Shares being delivered at such Time of Delivery, the Registration Statement
and the Prospectus, as well as such other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company and the Operating
Partnership, shall have furnished to the Representatives their written opinion,
dated each Time of Delivery for such Designated Shares, respectively, in form
and substance satisfactory to the Representatives, to the effect that:
(i) Each of the Company, CBL Holdings I, CBL Holdings II and the Management
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of Delaware with corporate power and authority to
own its properties and conduct its business as described in the Registration
Statement and Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Registration Statement and Prospectus as amended or supplemented, and all of the
issued shares of capital stock of the Company (including the Designated Shares
being delivered at such Time of Delivery) have been duly and validly authorized
and issued and are fully paid and non-assessable; and the Designated Shares
conform to the description thereof in the Prospectus as amended or supplemented;
(iii) The Designated Shares to be sold under this Agreement to the
Underwriters have been authorized for listing on the New York Stock Exchange;
(iv) CBL Holdings I has been duly qualified as a foreign corporation and
the Operating Partnership has been duly qualified as a foreign partnership for
the transaction of business and each of CBL Holdings I and the Operating
Partnership is in good standing under the laws of each such other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided that such
counsel shall state that they believe that both the Representatives and they are
justified in relying upon such opinions and certificates);
16
(v) The Operating Partnership has been duly organized and is validly
existing as a partnership in good standing under the laws of Delaware; the
Partnership Agreement has been duly authorized, executed and delivered by each
of CBL Holdings I and CBL Holdings II and is valid, legally binding and
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; all of the
partnership interests of the Operating Partnership have been duly and validly
authorized and issued, are fully paid and non-assessable and the general partner
interest of CBL Holdings I (except as set forth in the Prospectus) and the
limited partner interest of CBL Holdings II each are owned directly by CBL
Holdings I and CBL Holdings II, as applicable, and indirectly by the Company
(through the Company's 100% ownership interest in each of CBL Holdings I and CBL
Holdings II) free and clear of all liens, encumbrances, equities or claims; the
Series B Preferred Partnership Units to be issued to the Company by the
Operating Partnership in conjunction with the issuance by the Company of the
Designated Shares have been duly authorized and, when issued and delivered to
the Company, such Units will to our knowledge be owned by the Company and will
be validly issued or created under the limited partnership agreement of the
Operating Partnership and fully paid;
(vi) The Property Management Agreement between the Operating Partnership
and the Management Company has been duly authorized, executed and delivered and
is valid, legally binding and enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
(vii) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by the
Company and the Operating Partnership, and are valid, legally binding and
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(viii) The issue and sale of the Designated Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company and the
Operating Partnership with all of the provisions of this Agreement and the
Pricing Agreement with respect to the Designated Shares and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of the Certificate of Incorporation or By-laws
of the Company, CBL Holdings I or CBL Holdings II or the Certificate of Limited
Partnership or Partnership Agreement of the Operating Partnership or any statute
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties;
17
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Shares being delivered at such
Time of Delivery or the consummation by the Company or the Operating Partnership
of the transactions contemplated by this Agreement or such Pricing Agreement,
except such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Designated Shares by the Underwriters;
(x) The statements made in the Registration Statement under the captions
"Description of Capital Stock", "Description of Preferred Stock", "Description
of Common Stock", "Description of Common Stock Warrants" and "Federal Income Tax
Considerations" and in the Prospectus with respect to the Designated Shares
under the corresponding captions to the extent made, insofar as such statements
constitute a summary of documents referred to therein, are accurate summaries in
all material respects, and insofar as such statements constitute a summary of
matters of law or legal conclusions, are accurate summaries in all material
respects; and
(xi) Neither the Company nor any of its subsidiaries (which for purposes of
this subparagraph (xi) shall be deemed to include only the Operating
Partnership, the subsidiaries that own the fee title to the Xxxxxxxx Place Mall,
Coolsprings Galleria and Xxxxx Mall properties and any other subsidiary that is
"a significant subsidiary" within the meaning of Rule 1-02 of Regulation S-X) is
or, after giving effect to the issue and sale of the Designated Shares, will be
an "investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act.
Such counsel shall state that the Registration Statement and all
post-effective amendments, if any, have become effective under the Act.
Such counsel shall further state that the Registration Statement and the
Prospectus as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules and other financial data
therein, as to which such counsel need express no view), comply as to form in
all material respects with the requirements of the Act and the rules and
regulations thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus as amended or supplemented, except for
those referred to in the opinion in subsection (x) of this Section 7(c), no
facts have come to their attention that have led such counsel to believe that,
as of its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein and other
18
financial data, as to which such counsel need express no view) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules therein
and other financial data, as to which such counsel need express no view)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such Time of Delivery,
either the Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein and other financial data, as to which such counsel need express no view)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the documents incorporated by
reference in the Prospectus as amended or supplemented (other than the financial
statements and related schedules therein and other financial data, as to which
such counsel need express no view), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and no facts have
come to their attention that have led such counsel to believe that any of such
documents, when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became effective under
the Act, an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States or as to
the laws other than the federal laws of the United States, the laws of the State
of New York or the corporate, limited liability company or partnership laws of
the State of Delaware, except with respect to the matters set forth in paragraph
(iv) above. With respect to the prior paragraph, such counsel may state that
their statements are based upon their representation of the Company, the
Operating Partnership and CBL & Associates, Inc. in connection with the
formation of the Company and the Operating Partnership, and in
19
other matters from time to time since such formation, and their participation in
the preparation of the Registration Statement and Prospectus as amended or
supplemented and review and discussion thereof, but that such counsel does not
pass upon or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus as amended or supplemented, subject to the opinion set forth above in
subparagraph (x).
(d) Xxxxxxx Xxxx & Xxxxxxxxx, special tax counsel for the Company and the
Operating Partnership, shall have furnished to the Representatives their written
opinion, dated each Time of Delivery for such Designated Shares, respectively,
in form and substance satisfactory to the Representatives, to the effect that
commencing with the Company's taxable year ended December 31, 1993, the Company
is organized in conformity with the requirements for qualification as a REIT,
its proposed method of operation enables it to meet the requirements for
qualification and taxation as a REIT under the Code, and the rights of CBL &
Associates, Inc. and its affiliates to exchange all or a portion of their common
partnership units in the Operating Partnership for shares of Common Stock or
their cash equivalent, at the Company's election, will not cause the Company to
fail the diversity of ownership test of Section 856(a)(6) of the Code;
(e) Shumacker & Xxxxxxxx, P.C., counsel for the Company, shall have
furnished to the Representatives their written opinion, dated each Time of
Delivery for such Designated Shares, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each subsidiary of the Company (other than the Operating Partnership,
the Management Company, CBL Holdings I and CBL Holdings II, as to which such
counsel need express no opinion) has been duly organized and is validly existing
as a partnership, limited liability company or corporation in good standing (to
the extent applicable) under the laws of its jurisdiction of organization; the
partnership agreement of each partnership subsidiary (including, with respect to
matters of the law of the State of Tennessee, the Partnership Agreement) of the
Company has been duly authorized, executed and delivered by the Company or each
partner thereof that is a subsidiary of the Company and is valid, legally
binding and enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; all
of the partnership interests of each partnership subsidiary (other than the
Operating Partnership, as to which such counsel need express no opinion) have
been duly and validly authorized and issued, are fully paid and non-assessable
and (except as set forth in the Prospectus as amended or supplemented) are
owned, directly or indirectly, by the Company or the Operating Partnership, free
and clear of all liens, encumbrances, equities or claims; the limited liability
company or equivalent agreement of each limited liability company subsidiary of
the Company has been duly authorized, executed and delivered by the Company or
each member thereof that is a subsidiary of the Company and is valid, legally
binding and enforceable in accordance with its terms, subject, as to
20
enforcement, to bankruptcy, insolvency and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; all
of the limited liability company interests of each limited liability company
subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and (except as set forth in the Prospectus as amended or
supplemented) are owned, directly or indirectly, by the Company or the Operating
Partnership, free and clear of all liens, encumbrances, equities or claims; all
of the issued shares of capital stock of the Company (including the Designated
Shares being delivered at such Time of Delivery) are not now in violation of or
subject to any preemptive or, to the best of such counsel's knowledge, similar
rights that entitle or will entitle any person to acquire any Designated Shares
from the Company upon issuance or sale thereof; all of the issued shares of
capital stock of each corporate subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and all such issued shares of
capital stock are owned, directly or indirectly, by the Company, free and clear
of all liens, encumbrances, equities or claims; all of the limited partnership
interests of the Operating Partnership (except as set forth in the Prospectus as
amended or supplemented) are owned, directly or indirectly, by CBL Holdings II,
free and clear of all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon (a) certificates of
officers of the Company or its subsidiaries and (b) certificates of existence or
good standing received from governmental agencies in the respective states in
which the subsidiaries are organized, provided that such counsel shall state
that they believe that both the Representatives and they are justified in
relying upon such opinions and certificates);
(ii) CBL Holdings I has been duly qualified as a foreign corporation and
the Operating Partnership has been duly qualified as a foreign partnership for
the transaction of business in each of the jurisdictions set forth on Schedule A
attached hereto. The Xxxxxxxx Place Mall, CoolSprings Galleria and Xxxxx Mall
subsidiaries are validly existing and are in good standing under the laws of
each jurisdiction in which they operate. As of the date hereof, we are not aware
that either or both of CBL Holdings I and the Operating Partnership have ceased
to be in good standing under the laws of each jurisdiction set forth on Schedule
A attached hereto. The jurisdictions listed on Schedule A represent each
jurisdiction (other than Delaware) in which the Company, CBL Holdings I and/or
the Operating Partnership owns or leases properties or conducts business so as
to require qualification (such counsel being entitled to rely in respect of the
opinion in this clause upon certificates of officers of the Company or its
subsidiaries and certificates of existence or good standing received from
governmental agencies in the respective states in which the subsidiaries are
organized, provided that such counsel shall state that they believe that both
the representatives and they are justified in relying upon such certificates);
(iii) To the best of such counsel's knowledge and other than as set forth
in the Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
21
party or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole; and, to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, provided that,
with respect to the matters set forth in this subparagraph (iii), such counsel
need express no opinion with respect to the Act or to any state or foreign
securities or Blue Sky laws and they may state that they have not reviewed the
environmental reports prepared in connection with the formation of the Company
and the Operating Partnership and in connection with properties acquired by the
Company since such time;
(iv) The issue and sale of the Designated Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company and the
Operating Partnership with all of the provisions of this Agreement and the
Pricing Agreement with respect to the Designated Shares and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (except for such breaches,
violations, or defaults that are not material to the Company and its
subsidiaries and will not have any adverse effect on the consummation of the
issue and sale of the Designated Shares), nor will any such action conflict with
or result in a breach or violation of the certificate of incorporation or
certificate of formation, or by-laws, limited liability company agreement or
partnership agreement of any subsidiary of the Company known to such counsel
(other than the Operating Partnership, the Management Company, CBL Holdings I
and CBL Holdings II), nor will such action result in any violation of any
statute or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, provided that, with respect to the
matters set forth in this subparagraph (iv), such counsel need express no
opinion with respect to the Act or to any state or foreign securities or Blue
Sky laws;
(v) Any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid and subsisting leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as set forth or contemplated in the Prospectus
as amended or supplemented (in giving the opinion in this clause, such counsel
may state that they are relying upon opinions of counsel of the lessors of such
property and, in respect of matters of fact, upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
22
shall state that they believe that both you and they are justified in relying
upon such opinions and certificates); and such counsel shall also state that in
respect of all real property described in the Prospectus as amended or
supplemented as being owned by the Company or its subsidiaries (except for
Meridian Mall, Okemos, MI; Springdale Mall, Mobile, AL; Xxxxxx Mall,
Stroudsburg, PA; Xxxxxxxxx Xxxx, Xxxxxxxxx, XX; Xxxxxxxxx Xxxx, Xxxxxxxxx, XX;
Hickory Hollow Mall, Nashville, TN; York Galleria, York, PA; and Burnsville
Center, Burnsville, MN, whose titles such counsel have not reviewed), they made
a general review of the titles of the Company and its subsidiaries and reviewed
title commitments, abstracts, and/or reports of title companies rendered or
issued prior to the time of acquisition of such property by the Company or its
subsidiaries and based upon such review, and its representation of the Company
and the Operating Partnership in connection with the formation of the Company
and the Operating Partnership and the transactions relating to the formation,
its representation of the Company and the Operating Partnership in connection
with certain acquisitions and dispositions of and certain financings relating to
real property by the Company, the Operating Partnership and/or their
subsidiaries subsequent to their formation and to the date of the opinion and
its representation of CBL & Associates, Inc., as of the time of such review no
facts came to their attention that led such counsel to believe that there is any
material inaccuracy in such commitments, abstracts and reports relating to the
real property described in the Prospectus as being owned by the Company or its
subsidiaries.
(vi) Each Property Partnership (for purposes of this subparagraph (vi), the
term "Property Partnership" shall mean any subsidiary of the Company and/or the
Operating Partnership that is in the form of a partnership) is properly treated
(a) as a partnership for federal income tax purposes and (b) is not a "publicly
traded partnership" within the meaning of Section 7704(b) of the Internal
Revenue Code of 1986, as amended.
Such counsel shall state further that no facts have come to their attention
that have led such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and the other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial statements
and related schedules and other related financial data therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
or that, as of such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which
23
such counsel need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States or as to
the laws other than those of the State of Tennessee and the Federal laws of the
United States, and except with respect to the matters set forth in subparagraph
(i) above. With respect to the prior paragraph, such counsel may state that
their statements are based upon their representation of the Company and the
Operating Partnership in connection with the formation of the Company and the
Operating Partnership, and the transactions relating to the formation, their
representation of the Company and the Operating Partnership and/or their
subsidiaries subsequent to their formation and to the date of the opinion, their
representation of CBL & Associates, Inc. and their participation in the
preparation of the Registration Statement and Prospectus as amended or
supplemented and review and discussion thereof, but that such counsel does not
pass upon or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus;
(f) On the date of the Pricing Agreement for such Designated Shares and at
each Time of Delivery for such Designated Shares, Deloitte & Touche LLP, shall
have furnished to the Representatives a letter, dated the date of the Pricing
Agreement for the Designated Shares, and a comfort letter dated such Time of
Delivery, respectively, in form and substance satisfactory to the
Representatives;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the Designated
Shares, and (ii) since the respective dates as of which information is given in
the Prospectus as amended prior to the date of the Pricing Agreement relating to
the Designated Shares there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Shares, the effect of which, in any such
case described in Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
24
Designated Shares on the terms and in the manner contemplated in the Prospectus
as amended relating to the Designated Shares;
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities or preferred stock, if any, by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock, if any;
(i) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension in trading in securities generally on the New York Stock Exchange or
such trading has been made subject to material limitations, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York Stock Exchange or by
order of the Commission or any other governmental authority having jurisdiction;
(ii) a suspension or material limitation in trading in the Company's securities
on the New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities or
acts of terrorism involving the United States or the declaration by the United
States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the Firm
Shares or Optional Shares or both on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the Designated
Shares;
(j) The Designated Shares at each Time of Delivery shall have been duly
listed, subject to notice of issuance, on the New York Stock Exchange;
(k) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of the Pricing Agreement relating to the Designated
Shares;
(l) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares certificates
of officers of the Company reasonably satisfactory to the Representatives as to
the accuracy of the representations and warranties of the Company and the
Operating Partnership herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Time of
25
Delivery, as to the matters set forth in subsections (a) and (g) of this Section
and as to such other matters as the Representatives may reasonably request; and
(m) The Company shall have furnished the Underwriters and Underwriters'
counsel with such other certificates, opinions or other documents as they may
have reasonably requested.
8. (a) The Company and the Operating Partnership will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages, expenses or liabilities whatsoever as incurred, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, preparing or defending any such action or claim
as such expenses are incurred; provided, however, that neither the Company nor
the Operating Partnership shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company and the Operating Partnership against any losses, claims,
damages, expenses or liabilities to which the Company or the Operating
Partnership may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented, or any such
26
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company or the
Operating Partnership for any legal or other expenses reasonably incurred by the
Company or the Operating Partnership in connection with investigating, preparing
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein at its own expense and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who, if the
Company or Operating Partnership are the indemnifying party, may be Xxxxxxx Xxxx
& Xxxxxxxxx) and, after written notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, (iii) the indemnifying party does not diligently
defend the action after assumption of the defense, or (iv) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are adverse from, additional to, or in conflict
with, those available to one or all of the indemnifying parties (in which case
the indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. No
indemnifying party shall, without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (x) (i) includes an unconditional release of the
indemnified
27
party from all liability arising out of such action or claim and (ii) does not
include any statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party and (y) the indemnifying party
confirms in writing its indemnification obligations hereunder with respect to
such settlement, compromise or judgment. In addition, the indemnifying party
shall not be required to indemnify, reimburse or otherwise make any contribution
to the amount paid or payable by the indemnified party for losses, claims,
damages, expenses or liabilities incurred by the indemnified party in settlement
of any actions, proceedings or investigations or otherwise covered hereunder,
unless such settlement has been approved by the indemnifying party, which
approval shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages, expenses or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand and the
Underwriters of the Designated Shares on the other from the offering of the
Designated Shares to which such loss, claim, damage, expense or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Operating
Partnership on the one hand and the Underwriters of the Designated Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Operating Partnership on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company and the Operating Partnership bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Operating Partnership and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in
28
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company and the Operating Partnership under this
Section 8 shall be in addition to any liability which the Company or the
Operating Partnership may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act or Exchange Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company or the Operating Partnership within the meaning of
the Act or Exchange Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Optional Shares which it has agreed to purchase under the Pricing
Agreement relating to such Shares, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such Shares
on the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such Firm
Shares or Optional Shares, as the case may be, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Shares on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for such Shares for
a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with
29
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of such Shares which remains unpurchased does
not exceed one-tenth of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of Delivery,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Firm Shares or Optional Shares, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Shares or Optional Shares, as
the case may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of Firm Shares or Optional Shares, as the case
may be, which remains unpurchased exceeds one-tenth of the aggregate number of
the Firm Shares or Optional Shares, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Optional Shares,
as the case may be, of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Firm Shares or the Additional Shares Option
relating to such Optional Shares, as the case may be, shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Operating Partnership and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, the Company or the Operating Partnership, or any officer or
director or controlling person of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Shares.
30
11. (a) The Representatives shall have the right to terminate this
Agreement, and any Pricing Agreement, at any time prior to the First Time of
Delivery or to terminate the obligations of the Underwriters to purchase the
Optional Shares at any time prior to the Second Time of Delivery, if any of the
events, conditions or circumstances specified or described in Sections 7(h) or
7(i) shall exist or occur. Any notice of termination pursuant to this Section
11(a) shall be in writing.
(b) If this Agreement shall be terminated pursuant to any of the provisions
hereof (other than pursuant to (i) notification by the Representatives as
provided in Section 11(a) hereof or (ii) Section 9(c) hereof), or if the sale of
the Shares provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth herein is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Representatives, reimburse the Underwriters through the
Representatives for all out-of-pocket expenses (including the fees and expenses
of their counsel), incurred by the Underwriters in connection herewith.
If any Pricing Agreement or Additional Shares Option shall be terminated
pursuant to Section 9 hereof, neither the Operating Partnership nor the Company
shall then be under any liability to any Underwriter with respect to the Firm
Shares or Optional Shares with respect to which such Pricing Agreement shall
have been terminated except as provided in Sections 6 and 8 hereof; but, if for
any other reason, Designated Shares are not delivered by or on behalf of the
Company as provided herein (including a termination by the Representatives
pursuant to Section 11(a)), the Company and the Operating Partnership will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses, including fees and disbursements of their counsel, incurred by the
Underwriters in connection herewith, but the Company and the Operating
Partnership shall then be under no further liability to any Underwriter with
respect to such Designated Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter
31
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of the Underwriters, the Company, the Operating
Partnership and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and each person who controls the Company,
the Operating Partnership or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Shares from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and the term "New York Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York, New York are generally authorized or
obligated by law or executive order to close.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York. Each of the
Company and the Operating Partnership irrevocably (a) submits to the
jurisdiction of any court of the State of New York or the United States District
Court for the Southern District of the State of New York for the purpose of any
suit, action, or other proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated by this Agreement, the Registration
Statement and the Prospectus (each, a "Proceeding"), (b) agrees that all claims
in respect of any Proceeding may be heard and determined in any such court, (c)
waives, to the fullest extent permitted by law, any immunity from jurisdiction
of any such court or from any legal process therein, (d) agrees not to commence
any Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
32
Very truly yours,
CBL & Associates Properties, Inc.
By: /s/ Xxxx X. Xxx
------------------------------
Name: Xxxx X. Xxx
Title: Vice Chairman
CBL & Associates Limited Partnership
By CBL Holdings I, Inc.,
its general partner
By: /s/ Xxxx X. Xxx
------------------------------
Name: Xxxx X. Xxx
Title: Vice Chairman
33
Schedule A
----------
Alabama
Colorado
Connecticut
Florida
Georgia
Illinois
Kansas
Kentucky
Maine
Massachusetts
Michigan
Mississippi
Missouri
New Hampshire
New York
North Carolina
Ohio
South Carolina
Tennessee
Texas
Virginia
Wisconsin
Wyoming
34
Annex I
June __, 2002
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX XXXXXXXX, INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXX XXXXX XXXX XXXXXX, INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
XXXXX FARGO SECURITIES, LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CBL & Associates Properties, Inc., a Delaware corporation (the "Company")
and the owner of 100% of the issued and outstanding shares of common stock of
both CBL Holdings I, Inc., a Delaware corporation, and CBL Holdings II, Inc., a
Delaware corporation, the general partner and a limited partner, respectively,
of CBL & Associates Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), and such Operating Partnership, propose, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
June __, 2002 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares") consisting of Firm
Shares and any Optional Shares the Underwriters may elect to purchase. Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of the Underwriters of the
Designated Shares pursuant to
35
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the number
of Firm Shares set forth opposite the name of the Underwriters in Schedule I
hereto and, (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares, as provided below, the
Company agrees to issue and sell to each of the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which such election shall have
been exercised.
The Company hereby grants to each of the Underwriters the right to purchase
at their election up to the number of Optional Shares set forth opposite the
name of the Underwriters in Schedule I hereto on the terms referred to in the
paragraph above for the sole purpose of covering the sales of shares in excess
of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the representatives to the Company given within
a period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and one for each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company and the Operating Partnership.
36
Very truly yours,
CBL & Associates Properties, Inc.
By: ______________________________
Name:
Title:
CBL & Associates Limited Partnership
By CBL Holdings I, Inc.,
its general partner
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
Bear, Xxxxxxx & Co., Inc. Xxxxxxxxx Xxxxxxxx, Inc.
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
Prudential Securities Incorporated Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
00
X.X.X. Xxxxxxxx, X.X. Xxxxx, Inc. Xxxxx Fargo Securities, LLC
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
38
SCHEDULE I
Maximum Number
Number of Firm of Optional Shares
Shares To Be Which May Be
Purchased Purchased
-------------- ------------------
Underwriters
Bear, Xxxxxxx & Co. Inc..................
Xxxxxxxxx Xxxxxxxx, Inc. ................
Prudential Securities Incorporated.......
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.....
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.........
Xxxxx Fargo Securities, LLC..............
Total.................................... ========= =========
39
SCHEDULE II
Title Of Designated Shares:
Number Of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price To Public:
[$___] per Share
Purchase Price By Underwriters:
[$___] per Share
Commission Payable to Underwriters:
[$___] per Share in [Federal (same day) funds]
Form of Designated Shares:
Specified Funds for Payment of Purchase Price:
Time of Delivery:
Closing Location:
40
Names And Addresses Of Representatives:
Bear, Xxxxxxx & Co. Inc. Xxxxxxxxx Xxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxxxxxxx, XX 00000
Prudential Securities Incorporated Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. Xxxxx Fargo Securities, LLC
000 Xxxxx Xxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000-0000
41
