exhibit1013.htm


    
       

      
        
          Exhibit
10.1.3

        

      

    


    


    AMENDED
AND RESTATED

    CERTIFICATE
OF DESIGNATION

    OF

    7.375%
SERIES D CUMULATIVE REDEEMABLE PREFERRED UNITS

    OF

    CBL
& ASSOCIATES LIMITED PARTNERSHIP

    


    Pursuant
to Article 4.4 of the

    Second
Amended and Restated Partnership Agreement of

    CBL &
Associates Limited Partnership

    


    WHEREAS,
CBL & Associates Properties, Inc. (the “Company”) previously issued, in
December 2004, 700,000 shares (the “2004 Offering”) of 7.375% Series D
Cumulative Redeemable Preferred Stock (the “Preferred Stock”); and

     

    WHEREAS,
the Company has committed to issue, in March 2010, an additional 630,000 shares
(the “2010 Offering”) of the Preferred Stock; and

     

    WHEREAS,
the Company previously contributed the net proceeds of the 2004 Offering to CBL
& Associates Limited Partnership (the “Operating Partnership”), and the
Company and the Operating Partnership now desire that the Company contribute net
proceeds of the 2010 Offering to the Operating Partnership, in each case in
exchange for preferred units having substantially the same economic rights and
terms as the Preferred Stock;

     

    WHEREAS,
Article 4.4 of the Second Amended and Restated Partnership Agreement of the
Operating Partnership (the “Partnership Agreement”) provides for a Preferred
Unit Designation, setting forth, in sufficient detail, the economic rights and
terms of the class or series of preferred units.

     

    NOW
THEREFORE, CBL Holdings I, Inc., the general partner of the Operating
Partnership (the “General Partner”) hereby amends and restates in full, as so
amended, the designated terms of a series of preferred units, with the
designations, powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
such preferred units, being hereby fixed as follows:

     

    
      	
              1.  

            	
              Designation
      and Amount.

            




    The units
of such series shall be designated “7.375% Series D Cumulative Redeemable
Preferred Units” (the “Series D Preferred Units”) and the number of units
constituting such series shall be 1,800,000.  The designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Series D Preferred Units shall be subject in all cases to the provisions of the
Partnership Agreement.

     

    
      	
              2.  

            	
              Dividends
      and Distribution Rights.

            




    (a)  Holders
of Series D Preferred Units shall be entitled to receive, when, as and if
declared by the General Partner, out of assets of the Operating Partnership
legally available for the payment of dividends, cumulative preferential cash
dividends at the rate of 7.375% per annum of the $250.00 liquidation
preference.  Such dividends shall be cumulative from and including the
date of the original issue by the Operating Partnership of the Series D
Preferred Units and shall be payable quarterly in arrears on the 30th day of
March, June, September, and December of each year or, if not a business day, the
next succeeding business day (each, a “Dividend Payment Date”).  The
first dividend shall be paid on March 30, 2005.  Such first dividend
and any dividend payable on the Series D Preferred Units for any other partial
dividend period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.  Dividends will be payable to holders of record
as they appear in the records of the Operating Partnership at the close of
business on the applicable record date, which shall be the 15th day of the
calendar month in which the applicable Dividend Payment Date falls or on such
other date designated by the General Partner for the payment of dividends that
is not more than 30 nor less than 10 days prior to such Dividend Payment Date
(each, a “Dividend Record Date”).

     

    (b)  No
dividends on the Series D Preferred Units shall be declared by the General
Partner or paid or set apart for payment by the General Partner at such time as
the terms and provisions of any agreement of the Operating Partnership,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.

     

    (c)  Notwithstanding
anything contained herein to the contrary, dividends on the Series D Preferred
Units shall accrue whether or not the Operating Partnership has earnings,
whether or not there are funds legally available for the payment of such
dividends, and whether or not such dividends are declared.  Accrued
but unpaid dividends on the Series D Preferred Units shall accumulate as of the
Dividend Payment Date on which they first become payable.

     

    (d)  Except
as set forth in the next sentence, no dividends shall be declared or paid or set
apart for payment on any of the Operating Partnership’s Common Units (“Common
Units”), or units of any other class or series of units of the Operating
Partnership ranking, as to dividends, on a parity with or junior to the Series D
Preferred Units (other than a dividend paid in units of Common Units or in units
of any other class or series of units ranking junior to the Series D Preferred
Units as to dividends and upon liquidation) for any period unless full
cumulative dividends on the Series D Preferred Units for all past dividend
periods and the then current dividend period shall have been or
contemporaneously are (i) declared and paid in cash or (ii) declared and a sum
sufficient for the payment thereof in cash is set apart for such
payment.  When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series D Preferred Units and the
units of any other series of preferred units ranking on a parity as to dividends
with the Series D Preferred Units, all dividends declared upon the Series D
Preferred Units and any other series of preferred units ranking on a parity as
to dividends with the Series D Preferred Units shall be declared pro rata so
that the amount of dividends declared per unit of Series D Preferred Units and
such other series of preferred units shall in all cases bear to each other the
same ratio that accrued dividends per unit on the Series D Preferred Units and
such other series of preferred units (which shall not include any accrual in
respect of unpaid dividends on such other series of preferred units for prior
dividend periods if such other series of preferred units does not have a
cumulative dividend) bear to each other.  No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series D Preferred Units which may be in arrears.

     

    (e)  Except
as provided in paragraph 2(d), unless full cumulative dividends on the Series D
Preferred Units shall have been or contemporaneously are declared and paid in
cash or declared and a sum sufficient for the payment thereof in cash is set
apart for payment for all past dividend periods and the then current dividend
period, no dividends (other than in Common Units or other units ranking junior
to the Series D Preferred Units as to dividends and upon liquidation) shall be
declared or paid or set aside for payment or other dividend shall be declared or
made upon the Common Units or any other units of the Operating Partnership
ranking junior to or on parity with the Series D Preferred Units as to dividends
or amounts upon liquidation nor shall any units of Common Units, or any units of
any other class or series of units of the Operating Partnership ranking junior
to or on a parity with the Series D Preferred Units as to dividends or upon
liquidation, be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such units) by the Operating Partnership (except by conversion
into or exchange for other units of the Operating Partnership ranking junior to
the Series D Preferred Units as to dividends and upon
liquidation).  Nothing in the foregoing shall be deemed to preclude
the exercise of Rights (as defined in the Partnership Agreement) by any unit
holder in accordance with the Partnership Agreement.

     

    (f)  Holders
of Series D Preferred Units shall not be entitled to any dividend, whether
payable in cash, property or units, in excess of full cumulative dividends on
the Series D Preferred Units as provided above.  Any dividend payment
made on the Series D Preferred Units shall first be credited against the
earliest accrued but unpaid dividends due with respect to such units which
remains payable.

     

    
      	
              3.  

            	
              Liquidation
      Rights.

            




    Upon any
voluntary or involuntary liquidation, dissolution or winding-up of the affairs
of the Operating Partnership, the holders of units of Series D Preferred Units
shall be entitled to be paid out of the assets of the Operating Partnership
legally available for distribution to its Unit holders a liquidation preference
of $250.00 per unit, plus an amount equal to any accrued and unpaid dividends to
the date of payment (whether or not declared), before any distribution or
payment shall be made to holders of units of Common Units or any other class or
series of units of the Operating Partnership ranking junior to the Series D
Preferred Units as to liquidation rights.  In the event that, upon
such voluntary or involuntary liquidation, dissolution or winding-up, the
available assets of the Operating Partnership are insufficient to pay the amount
of the liquidating distributions on all outstanding units of Series D Preferred
Units and the corresponding amounts payable on all units of other classes or
series of units of the Operating Partnership ranking on a parity with the Series
D Preferred Units in the distribution of assets, then the holders of the Series
D Preferred Units and all other such classes or series of units shall share
ratably in any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively
entitled.  Holders of Series D Preferred Units shall be entitled to
written notice of any such liquidation.  After payment of the full
amount of the liquidating distributions to which they are entitled, the holders
of Series D Preferred Units will have no right or claim to any of the remaining
assets of the Operating Partnership.  The consolidation or merger of
the Operating Partnership with or into any corporation, trust or entity, or of
any corporation, trust or other entity with or into the Operating Partnership,
or the sale, lease or conveyance of all or substantially all of the property or
business of the Operating Partnership shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Operating
Partnership.

     

    
      
      

    

     

    
      	
              4.  

            	
              Redemption.

            


    

     

    (a)  Series
D Preferred Units shall not be redeemable prior to December 13,
2009.  On or after December 13, 2009, the Operating Partnership, at
its option upon not less than 30 nor more than 60 days’ written notice, may
redeem the Series D Preferred Units, in whole or in part, at any time or from
time to time, for cash at a redemption price of $250.00 per unit, plus any
accrued and unpaid dividends thereon up to and including the date fixed for
redemption (except as provided below), without interest.  If fewer
than all of the outstanding units of Series D Preferred Units are to be
redeemed, the units of Series D Preferred Units to be redeemed shall be redeemed
pro rata (as nearly as may be practicable without creating fractional units) or
by lot or by any other equitable method determined by the Operating
Partnership.  Holders of Series D Preferred Units to be redeemed shall
surrender such Series D Preferred Units at the place designated in such notice
and shall be entitled to the redemption price and any accrued and unpaid
dividends payable upon such redemption following such surrender.  If
notice of redemption of any Series D Preferred Units has been given and if the
funds necessary for such redemption have been set aside by the Operating
Partnership in trust for the benefit of the holders of any units of Series D
Preferred Units so called for redemption, then from and after the redemption
date dividends shall cease to accrue on such Series D Preferred Units, such
units of Series D Preferred Units shall no longer be deemed outstanding and all
rights of the holders of such units will terminate, except the right to receive
the redemption price plus any accrued and unpaid dividends payable upon such
redemption.  Nothing
herein shall prevent or restrict the Operating Partnership’s right or ability to
purchase, from time to time either at a public or a private sale, all, or
any portion, of the outstanding
Series D Preferred Units at such price or prices as the Operating Partnership
may determine, subject to the provisions of applicable
law.

     

    (b)  Unless
full cumulative dividends on all Series D Preferred Units shall have been or
contemporaneously are declared and paid in cash or declared and a sum sufficient
for the payment thereof in cash set apart for payment for all past dividend
periods and the then current dividend period, no Series D Preferred Units shall
be redeemed unless all outstanding units of Series D Preferred Units are
simultaneously redeemed and the Operating Partnership shall not purchase or
otherwise acquire directly or indirectly any units of Series D Preferred Units
(except by exchange for units of the Operating Partnership ranking junior to the
Series D Preferred Units as to dividends and amounts upon
liquidation).

     

    (c)  Notice
of redemption shall be mailed by the Operating Partnership, postage prepaid, not
less than 30 nor more than 60 days prior to the redemption date, addressed to
the respective holders of record of the units of Series D Preferred Units to be
redeemed at their respective addresses as they appear on the records of the
Operating Partnership.  No failure to give such notice or any defect
thereto or in the mailing thereof shall affect the validity of the proceedings
for the redemption of any Series D Preferred Units except as to a holder to whom
notice was defective or not given.  Each notice shall state (i) the
redemption date; (ii) the redemption price; (iii) the number of units of Series
D Preferred Units to be redeemed; (iv) the place or places where units of Series
D Preferred Units are to be surrendered for payment of the redemption price; and
(v) that dividends on the Series D Preferred Units to be redeemed shall cease to
accrue on such redemption date.  If fewer than all of the units of
Series D Preferred Units held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of units of Series D
Preferred Units held by such holder to be redeemed.

     

    (d)  Immediately
prior to any redemption of Series D Preferred Units, the Operating Partnership
shall pay, in cash, any accumulated and unpaid dividends through the redemption
date, unless a redemption date falls after a Dividend Record Date and prior to
the corresponding Dividend Payment Date, in which case each holder of Series D
Preferred Units at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such units on the corresponding Dividend
Payment Date notwithstanding the redemption of such units before such Dividend
Payment Date.  Except as provided above, the Operating Partnership
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series D Preferred Units for which a notice of redemption has been
given.

     

    (e)  All
Series D Preferred Units redeemed or repurchased pursuant to this paragraph 4
shall be retired and shall be restored to the status of authorized and unissued
units of preferred units, without designation as to Series D and may thereafter
be reissued as units of any series of preferred units.

     

    (f)  The
Series D Preferred Units shall have no stated maturity and shall not be subject
to any sinking fund or mandatory redemption.

     

    
      	
              5.  

            	
              Voting
      Rights.

            




    (a)  Holders
of the Series D Preferred Units shall not have any voting rights, except as set
forth in the Partnership Agreement.

     

    (b)  The
affirmative vote or consent of the holders of two-thirds of the units of Series
D Preferred Units and the holders of all other classes or series of Preferred
Units of the Operating Partnership ranking on parity with the Series D Preferred
Units upon which like voting rights have been conferred and are exercisable,
outstanding at the time (voting together as a class), given in person or by
proxy, either in writing or at a meeting, will be required to:
(i) authorize or create, or increase the authorized or issued amount of,
any class or series of units ranking senior to the Series D Preferred Units with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding-up of the Operating Partnership or reclassify any
authorized units of the Operating Partnership into such units, or create,
authorize or issue any obligation or security convertible into or evidencing the
right to purchase any such units; or (ii) amend, alter or repeal the provisions
of the Partnership Agreement or this Certificate of Designations, whether by
merger, consolidation, transfer or conveyance of substantially all of its assets
or otherwise (an “Event”), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series D Preferred Units or the
holders thereof; provided however, with respect to the occurrence of any of the
Events set forth in (ii) above, so long as the Series D Preferred Units remain
outstanding with the terms thereof materially unchanged, taking into account
that, upon the occurrence of an Event, the Operating Partnership may not be the
surviving entity, the occurrence of such Event shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting power of
holders of Series D Preferred Units and in such case such holders shall not have
any voting rights with respect to the Events set forth in (ii)
above.  Except as may be required by law, holders of Series D
Preferred Units shall not be entitled to vote with respect to (A) any increase
or decrease in the total number of authorized Preferred Units, (B) any increase,
decrease or issuance of any series of Preferred Units including the Series D
Preferred Units or (C) the creation or issuance of any other series of Preferred
Units, in each case referred to in clauses (A), (B) or (C) above, ranking on a
parity with or junior to the Series D Preferred Units with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding-up.

     

    (c)  The
foregoing voting provisions of this paragraph 5 shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding units of Series D Preferred Units
shall have been redeemed or called for redemption upon proper notice and
sufficient funds, in cash, shall have been deposited in trust to effect such
redemption.

     

    (d)  In
any matter in which the Series D Preferred Units may vote (as expressly provided
herein or as may be required by law), each unit of Series D Preferred Units
shall be entitled to one vote per each $25.00 in stated liquidation
preference.

     

    
      	
              6.  

            	
              Conversion.

            




    The units
of Series D Preferred Units shall not be convertible into or exchangeable for
any other property or units of the Operating Partnership.

     

    
      	
              7.  

            	
              Ranking.

            




    The
Series D Preferred Units shall, with respect to dividend rights and rights upon
liquidation, dissolution or winding-up of the Operating Partnership, rank (a)
senior to the Common Units and to all units ranking junior to such Series D
Preferred Units; (b) on a parity with all units issued by the Operating
Partnership the terms of which specifically provide that such units rank on a
parity with the Series D Preferred Units; and (c) junior to all units issued by
the Operating Partnership (in accordance with this Certificate of Designations)
the terms of which specifically provide that such units rank senior to the
Series D Preferred Units. For purposes of this paragraph 7, the term “units”
does not include indebtedness convertible into units.

     

    
      	
              8.  

            	
              Exclusion
      of Other Rights.

            




    The
Series D Preferred Units shall not have any preferences or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption other than as expressly set
forth in the Partnership Agreement and this Certificate of
Designations.

     

    
      	
              9.  

            	
              Headings
      of Subdivisions.

            




    The
headings of the various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the provisions
hereof.

     

    
      	
              10.  

            	
              Severability
      of Provisions.

            




    If any
preferences or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series D Preferred Units set forth in the Partnership
Agreement and this Certificate of Designations is invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
preferences or other rights, voting powers, restrictions, limitations as to
distributions, qualifications or terms or conditions of redemption of Series D
Preferred Units set forth in the Partnership Agreement which can be given effect
without the invalid, unlawful or unenforceable provision thereof shall,
nevertheless, remain in full force and effect and no preferences or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the Series
D Preferred Units herein set forth shall be deemed dependent upon any other
provision thereof unless so expressed therein.

     

    
      	
              11.  

            	
              No
      Preemptive Rights.

            




    No holder
of Series D Preferred Units shall be entitled to any preemptive rights to
subscribe for or acquire any unissued units of the Operating Partnership
(whether now or hereafter authorized) or securities of the Operating Partnership
convertible into or carrying a right to subscribe to or acquire units of the
Operating Partnership.

     

    


    SIGNATURE APPEARS ON NEXT
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    IN
WITNESS WHEREOF, CBL Holdings I, Inc. has caused this Amended and Restated
Certificate of Designation of 7.375% Series D Cumulative Redeemable Preferred
Units to be duly executed by its Vice Chairman of the Board and Chief Financial
Officer this 25th day of February,
2010.

    


    


    CBL Holdings I,
Inc.

    


    


    By:  /s/  John
N.
Foy                                           

    John N. Foy

    Vice Chairman of the
Board

    and Chief Financial
Officer