Exhibit 1.1 UNDERWRITING AGREEMENT
CBL & Associates Properties, Inc.
Common Stock
(par value $.01 per share)
Preferred Stock
(par value $.01 per share)
Common Stock Warrants
Underwriting Agreement
March 11, 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. 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
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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);
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(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
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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 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 below), 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
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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 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 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
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and CBL Holdings II; CBL Holdings I is the sole general partner of the
Operating Partnership and has a 49.3% general partner interest in the
Operating Partnership; CBL Holdings II is a limited partner of the
Operating Partnership and has a 1.9% 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 I, CBL 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 I, CBL II, the Operating Partnership or the Management
Company, as the case may be, free and clear of all liens, encumbrances,
equities or claims;
(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 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
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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, 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;
(j) 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;
(k) 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
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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;
(l) 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;
(m) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(n) 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");
(o) 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
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under the Act of shares of Common Stock issuable upon exchange of the
limited partnership interests for shares of Common Stock;
(p) 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;
(q) 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; and
(r) 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.
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
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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 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
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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;
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(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(c)
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);
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(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 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);
15
(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").
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
16
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 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) Sullivan & Cromwell, 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;
17
(c) Willkie Farr & Gallagher, 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 Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the 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) 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);
(iv) 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
18
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;
(v) The Property Management Agreement between the Company 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;
(vi) 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;
(vii) 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;
19
(viii) 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;
(ix) 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 supplement 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
(x) Neither the Company nor any of its subsidiaries (which for
purposes of this subparagraph (x) shall be deemed to include only the
Operating Partnership, the subsidiaries that own the fee title to the
Hamilton Place Mall, Coolsprings Galleria and Hanes 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 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
20
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 (ix) 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 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
21
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
(iii) 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 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 (ix);
(d) Willkie Farr & Gallagher, 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
22
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 & Thompson, 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; 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 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
23
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 Hamilton
Place Mall, CoolSprings Galleria and Hanes 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(1) 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 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
- ----------
1 CBL Holdings I and the Operating Partnership: 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 and Wyoming.
24
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 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
25
property and, in respect of matters of fact, upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel 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; Stroud Mall, Stroudsburg, PA;
Asheville Mall, Asheville, NC; Rivergate Mall, Nashville, TN; 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.
(vii) To the best of such counsel's knowledge, 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
26
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.
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 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,
27
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, Arthur Andersen
LLP, who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives a letter, dated the
date of the Pricing Agreement for the Designated Shares, and a letter dated
such Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and 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 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
28
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 or material limitation in trading in securities generally on the
New York Stock Exchange; (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 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; and
(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
29
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 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.
8. (a) The Company and the Operating Partnership will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages 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 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 will indemnify and hold harmless the Company and the
Operating Partnership against any losses, claims, damages or liabilities to
which the Company or the Operating Partnership may become subject, under the Act
or otherwise, insofar as such losses, claims, damages 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
30
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 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 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 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 shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after 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. No indemnifying party shall, without the
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 (i) includes an
unconditional release of the indemnified 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. 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
31
previously 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 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 or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
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 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 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
or defending any such action or claim. Notwithstanding
32
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; 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.
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
33
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with 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-eleventh 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-eleventh 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.
34
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.
11. 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, the Company and the Operating Partnership will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares, 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 pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile
35
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.
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.
36
Very truly yours,
CBL & Associates Properties, Inc.
By: /s/ John N. Foy
----------------------------------------
Name: John N. Foy
Title: Vice Chairman
CBL & Associates Limited Partnership
By CBL Holdings I, Inc.,
its general partner
By: /s/ John N. Foy
----------------------------------------
Name: John N. Foy
Title: Vice Chairman
37
ANNEX I
Pricing Agreement
-----------------
______, 20__
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
March __, 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 each of the Underwriters
of the Designated Shares pursuant to 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 each of the Underwriters, and each of the Underwriters
agrees, 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 such
Underwriter 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 each of the Underwriters agrees, 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 such Underwriter in Schedule I hereto on the terms referred to 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 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 each 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. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination, upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
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:
By:
-----------------------------
On behalf of each of the Underwriters
3
SCHEDULE I
Maximum Number
of Optional
Number of Shares Which
Firm Shares May Be
Underwriter to Be Purchased Purchased
----------- --------------- ---------
Total........................................
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] [Formula]
Purchase Price by Underwriters:
[$........ per Share] [Formula]
[Commission Payable to Underwriters:
$........ per Share in Federal (same day) funds
Form of Designated Shares:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]
Specified Funds for Payment of Purchase Price:
Federal (same day) funds
[Describe any blackout provisions with respect to the Designated Shares]
Time of Delivery:
......... a.m. (New York City time), .................., 19..
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]* :
- ----------
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should be set
forth, or referenced to an attached or accompanying description, if necessary,
to ensure agreement as to the terms of the Designated Shares to be purchased and
sold. Such a description might appropriately be in the form in which such
features will be described in the Prospectus Supplement for the offering.
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached thereto; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for such five fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
-2-
consolidated financial statements included or incorporated
by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity
or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share
amounts of
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consolidated net income or cash available for distribution
or Funds from Operations (as defined in the Prospectus) or
other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
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