Exhibit 10.2


 


THIRD

AMENDMENT TO

SECOND AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

CBL & ASSOCIATES LIMITED PARTNERSHIP


 


Dated as of July 28, 2004


 


THIS THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF CBL & ASSOCIATES LIMITED
PARTNERSHIP (this “Amendment”) is hereby adopted by CBL Holdings I,
Inc., a Delaware corporation (the “General Partner”), as the general
partner of CBL & Associates Limited Partnership, a Delaware limited
partnership (the “Partnership”), and by CBL Holdings II, Inc., a
Delaware corporation, a limited partner of the Partnership representing a
Majority-In-Interest of the Limited Partners of the Partnership (the “Limited
Partner”).  For ease of reference,
capitalized terms used herein and not otherwise defined have the meanings
assigned to them in the Second Amended and Restated Agreement of Limited
Partnership of CBL & Associates Limited Partnership as the same may be
amended (the “Agreement”).


 


WHEREAS, the General Partner desires to
establish and set forth the terms of a new series of Partnership Units
designated as Series S Special Common Units (the “S-SCUs”).


 


WHEREAS, Section 4.4(a) of the Agreement
grants the General Partner authority to cause the Partnership to issue
Partnership Units in the Partnership to any Person in one or more classes or
series, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties as may be determined by the
General Partner in its sole and absolute discretion so long as the issuance
does not violate Section 9.3 of the Agreement.


 


WHEREAS, the General Partner desires to amend
the Agreement to, among other things, set forth the terms of the S-SCUs.


 


WHEREAS, Sections 4.4(a) and 14.7(b) of the
Agreement grant the General Partner power and authority to amend the Agreement
(including, without limitation, the distribution and allocation provisions
thereof) without the consent of any of the Partnership’s Limited Partners to
evidence any action taken by the General Partner pursuant to Section 4.4(a)
and to set forth the rights, powers and duties of the holders of any Additional
Units issued pursuant to Section 4.4(a).


 


WHEREAS, Section 14.7(a) of the
Agreement provides for the amendment of the Agreement with the approval of the
General Partner and the Consent of the Limited Partners, subject to the
limitations set forth therein.


 


NOW, THEREFORE, the General Partner, with the
Consent of the Limited Partners, hereby amends the Agreement as follows:


 





















 


1.                                       Section 1.1
of the Agreement is hereby amended and supplemented as set forth below:


 


(a)                                  The
following definitions are hereby deleted and replaced with the following:


 


“Common
Unit Conversion Factor” shall mean 1.0, provided, that, in the event that
the Partnership (i) makes a distribution to all holders of its Common Units in
Common Units (other than a distribution of Common Units pursuant to an offer to
all holders of Common Units, SCUs and S-SCUs permitting each to elect to
receive a distribution in Common Units in lieu of a cash distribution (such a
distribution of Common Units is referred to herein as a “Distribution of Common
Units in Lieu of Cash”)), (ii) subdivides or splits its outstanding Common
Units (which shall expressly exclude any Distribution of Common Units in Lieu
of Cash), or (iii) combines or reverse splits its outstanding Common Units into
a smaller number of Common Units (in each case, without making a comparable
distribution, subdivision, split, combination or reverse split with respect to
the SCUs or S-SCUs), the Common Unit Conversion Factor in effect immediately
preceding such event shall be adjusted by multiplying the Common Unit
Conversion Factor by a fraction, the numerator of which shall be the number of
Common Units issued and outstanding on the record date for such distribution,
subdivision, split, combination or reverse split (assuming for such purposes
that such distribution, subdivision, split, combination or reverse split
occurred as of such time), and the denominator of which shall be the actual
number of Common Units (determined without the above assumption) issued and
outstanding on the record date for such distribution, subdivision, split,
combination or reverse split.  Any
adjustment to the Common Unit Conversion Factor shall become effective
immediately after the record date for such event in the case of a distribution
or the effective date in the case of a subdivision, split, combination or
reverse split.


 


“Common
Stock Amount” shall mean, with respect to any number of common Units, SCUs
or S-SCUs, the number of shares of Common Stock equal to such number of Common
Units, SCUs or S-SCUs, as the case may be, multiplied by the Conversion Factor;
provided, however, that in the event that the Company issues to all holders of
Common Stock rights, options, warrants or convertible or exchangeable
securities entitling the shareholders to subscribe for or purchase additional
Common Stock, or any other securities or property of the Company, the value of
which is not included in the first sentence of the definition of Closing Price
of the shares of Common Stock (collectively, “additional rights”), other than a
right to receive a dividend or other distribution of Common Stock that
corresponds to Common Units issued to the Company pursuant to a Distribution of
Common Units in Lieu of Cash, then the Common Stock Amount shall also include,
other than with respect to any Common Units, SCUs or S-SCUs “beneficially owned”
by an “Acquiring Person” (as such terms are defined in the Company’s Rights
Agreement, dated as of April 30, 1999, as amended and as it may be further
amended from time to time, and any successor agreement thereto),


 


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such
additional rights that a holder of that number of shares of Common Stock would
be entitled to receive.


 


“Conversion Factor” shall mean 1.0,
provided that in the event that the Company (i) pays a dividend on its
outstanding shares of Common Stock in shares of Common Stock or makes a
distribution to all holders of its outstanding Common Stock in shares of Common
Stock (in either case other than a dividend or other distribution of shares of
Common Stock that corresponds to Common Units issued to the Company pursuant to
a Dividend of Common Units in Lieu of Cash), (ii) subdivides or splits its
outstanding shares of Common Stock, or (iii) combines or reverse splits its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock (in each case, without making a comparable dividend, distribution, subdivision,
split, combination or reverse split with respect to the Common Units, the SCUs
or S-SCUs), the Conversion Factor in effect immediately preceding such event
shall be adjusted by multiplying the Conversion Factor by a fraction, the
numerator of which shall be the number of shares of Common Stock issued and
outstanding on the record date for such dividend, distribution, subdivision,
split, combination or reverse split (assuming for such purposes that such
dividend, distribution, subdivision, split, combination or reverse split
occurred as of such time), and the denominator of which shall be the actual
number of shares of Common Stock (determined without the above assumption)
issued and outstanding on the record date for such dividend, distribution, subdivision,
split, combination or reverse split.  Any
adjustment to the Conversion Factor shall become effective immediately after
the record date for such event in the case of a dividend or distribution or the
effective date in the case of a subdivision, split, combination or reverse
split.


 


“Partnership
Units” shall mean the Common Units, the Preferred Units, the SCUs and the
S-SCUs.


 


(b)                                 The
following definitions are hereby added to Section 1.1 of the Agreement:


 


“S-SCUs”
shall have the meaning set forth in Exhibit H.


 


“S-SCU
Basic Distribution Amount” shall mean, with respect to an S-SCU, $1.269125
and, commencing with the first full calendar quarter following the fifth
anniversary of the issuance of the S-SCUs, $1.464375; provided, however, that
such amount will be adjusted appropriately to account for any unit splits,
combinations or other similar events with respect to the S-SCUs


 


“Series S
Exchange Notice” shall have the meaning set forth in Exhibit H


 


“Series S
Exchange Rights” shall have the meaning set forth in Exhibit H.


 


“Series S
Offered Units” shall have the meaning set forth in Exhibit H.


 


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2.                                       Pursuant
to Sections 4.5 and 7.8 of the Agreement, upon execution of a Limited Partner
Acceptance of the Partnership Agreement in the form attached hereto as
Attachment 1 (a “Limited Partner Acceptance”) or by causing a Limited Partner
Acceptance to be executed on its behalf, each initial holder of S-SCUs
automatically will be admitted as an Additional Partner of the Partnership,
without any further action or approval and the General Partner hereby agrees to
cause the names of such recipients to be recorded on the books and records of
the Partnership on the date of such admission.


 


3.                                       Sections
6.2(b) and 6.2(c) of the Agreement are hereby renumbered as Sections 6.2(c)(1)
and 6.2(c)(2) respectively.


 


4.                                       The
following shall be added as new Section 6.2(b) of the Agreement:


 


“(b)
Distributions shall also be made in accordance with the following order of
priority:


 


(i)
Concurrently, ratably and on parity with the distributions to holders of SCUs
provided for under Section 6.2(a)(iii), to the extent that the amount of
Net Cash Flow distributed to the holders of S-SCUs for any prior quarter was
(for any reason, including as a result of section 6.2(e), a lack of
legally available funds or a decision by the General Partner not to make
distributions for such quarter) less than the amount required to be distributed
for such quarter on account of the S-SCUs pursuant to subparagraph (ii) below,
and such shortfall has not been subsequently distributed pursuant to this Section 6.2(b)(i),
Net Cash Flow shall be distributed to the holders of S-SCUs until they have
received an amount per S-SCU, as applicable, necessary to satisfy such
shortfall for all prior quarters of the current and all prior Partnership
taxable years;”


 


“(ii)
Concurrently, ratably and on parity with the distributions to holders of SCUs
provided for under Section 6.2(a)(iv), Net Cash Flow shall be distributed
among the holders of S-SCUs until they have received for the quarter to which
the distribution relates an amount for each outstanding S-SCU equal to the
applicable S-SCU Basic Distribution Amount;


 


(iii)
Concurrently, ratably and on parity with the distributions to holders of SCUs
and Common Units provided for under Section 6.2(a)(v), the balance of the
Net Cash Flow to be distributed, if any, shall be distributed to holders of
S-SCUs pro rata in accordance with their proportionate ownership of the
aggregate number of SCUs, S-SCUs and Common Units outstanding (counting each
SCU or S-SCU as the number of Common Units into which it is convertible
pursuant to the terms of Exhibit E or Exhibit H, as applicable), provided,
however, that such distribution to the holders of S-SCUs shall:


 


(A)  be made only after the quarterly
distributions on account of each Common Unit under Section 6.2(a)(v) for
the four previous consecutive quarters shall have averaged an amount that is
equal to or greater than the applicable S-SCU Basic Distribution Amount; and


 


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(B)  be reduced by the amount of the distribution
made to such Holders on account of their S-SCUs 
with respect to such quarter pursuant to subparagraph (b)(ii) above and
the reduction will be allocated among the holders of S-SCUs pro rata in
accordance with their respective percentage interests in the total number of
S-SCUs then outstanding.


 


(iv)
Notwithstanding the foregoing, all distributions pursuant to this Section 6.2(b)
shall remain subject to the provisions of (i) each Certificate of Designation
for any class or series of Preferred Units, (ii) Exhibit E hereto with respect
to the SCUs, and (iii) Exhibit H hereto with respect to the S-SCUs.


 


5.                                       Section 6.6
of the Agreement shall be amended by replacing the words “(or Series J Exchange
Rights)” with the words “(or Series J or Series S Exchange Rights)”.


 


6.                                       The
last sentence of Section 8.2 of the Agreement is hereby deleted and
replaced in its entirety with the following:


 


“Notwithstanding
the foregoing, all distributions pursuant to this Section 8.2 shall remain
subject to the provisions of (i) the Certificate of Designation for each class
or series of Preferred Units set forth in Exhibit B hereto; (ii) Exhibit E
hereto with respect to the SCUs,; and (iii) Exhibit H with respect to the
S-SCUs.”


 


7.                                       The
following paragraph is added as Section 9.2(d) of the Agreement:


 


“(d) The
applicable Approved Transfers permitted in Paragraph 8 of Exhibit H hereto
shall also be available, mutatis mutandis, to holders of any Common Units
issued in exchange for or upon the redemption of S-SCUs.”


 


8.                                       The
following phrase is hereby added to the end of Section 11.1 of the
Agreement:


 


“and the
Rights in respect of the Common Units issued upon the redemption or exchange of
S-SCUs shall be subject to the terms, conditions and restrictions set forth in
Exhibit I hereto.”


 


9.                                       The
following phrase is hereby added to the end of Section 11.2 of the
Agreement:


 


“and the terms
and provisions applicable to the Rights in respect of the Common Units issued
upon the redemption or exchange of S-SCUs shall be as set forth in Exhibit I
hereto.”


 


10.                                 Exhibit
A of the Agreement is hereby deleted and is replaced in its entirety by new
Exhibit A attached hereto as Attachment 2.


 


11.                                 Exhibit
C of the Agreement is hereby deleted and is replaced in its entirety by new
Exhibit C attached hereto as Attachment 3.


 


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12.                                 The
exhibit attached to this Amendment as Attachment 4 is hereby added to the
Agreement as Exhibit H thereof.


 


13.                                 The
exhibit attached to this Amendment as Attachment 5 is hereby added to the
Agreement as Exhibit I thereof.


 


14.                                 Except
as expressly amended hereby, the Agreement shall remain in full force and effect.


 


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Attachment 5


 


IN WITNESS WHEREOF, the General Partner has
executed this Third Amendment as of the date first written above.


 


	
   

  	
  CBL HOLDINGS I, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John N. Foy

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John N. Foy

  
	
   

  	
   

  	
  Title:

  	
  Vice Chairman of the Board

  and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CBL & ASSOCIATES PROPERTIES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John N. Foy

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John N. Foy

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice Chairman of the Board

  and Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consented to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CBL HOLDINGS II, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John N. Foy

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John N. Foy

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice Chairman of the Board

  	
   

  	
   

  
	
   

  	
  and Chief Financial Officer