exhibit491.htm


    
       

      
        
          Exhibit
4.9.1

        

      

    


    


    AMENDED
AND RESTATED

    CERTIFICATE
OF DESIGNATIONS, NUMBER,

    VOTING
POWERS, PREFERENCES AND RIGHTS

    OF

    7.375%
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK

    OF

    CBL
& ASSOCIATES PROPERTIES, INC.

    


    Pursuant
to Section 151 of the

    General
Corporation Law of the State of Delaware

    


    The
undersigned DOES HEREBY CERTIFY that the following resolution was duly adopted
by the Board of Directors of CBL & Associates Properties, Inc., a Delaware
corporation (hereinafter called the “Corporation”), with the preferences and
rights set forth therein relating to dividends, conversion, redemption,
dissolution and distribution of assets of the Corporation having been fixed by
the Board of Directors pursuant to authority granted to it under Article IV of
the Corporation’s Amended and Restated Certificate of Incorporation, as amended
(the “Certificate of Incorporation”), and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware:

    


    RESOLVED:  That,
pursuant to authority conferred upon the Board of Directors by the Amended and
Restated Certificate of Incorporation of the Corporation, the Board of Directors
hereby authorizes the issuance of an additional 995,000 shares of 7.375% Series
D Cumulative Redeemable Preferred Stock, $.01 par value, of the Corporation, for
an amended and restated total of 1,800,000 shares of such stock authorized for
issuance, and hereby fixes the designations, powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of such shares, in addition to those set
forth in such Certificate of Incorporation, as follows:

    


    
      	
              1.  

            	
              Designation
      and Amount.

            


    

    


    The
shares of such series shall be designated 7.375% Series D Cumulative Redeemable
Preferred Stock” (the “Series D Preferred Stock”) and the number of shares
constituting such series shall be 1,800,000.  The designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Series D Preferred Shares shall be subject in all cases to the provisions of
Article IV of the Certificate of Incorporation regarding limitations on
beneficial and constructive ownership of the Corporation’s capital
stock.

    


    
      	
              2.  

            	
              Dividends
      and Distribution Rights.

            


    

    


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

    


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

    


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

    


    (d)
Except as set forth in the next sentence, no dividends shall be declared or paid
or set apart for payment on any shares of the Corporation’s Common Stock, $.01
par value (“Common Stock”), or shares of any other class or series of capital
stock of the Corporation ranking, as to dividends, on a parity with or junior to
the Series D Preferred Stock (other than a dividend paid in shares of Common
Stock or in shares of any other class or series of capital stock ranking junior
to the Series D Preferred Stock as to dividends and upon liquidation) for any
period unless full cumulative dividends on the Series D Preferred Stock for all
past dividend periods and the then current dividend period shall have been or
contemporaneously are (i) declared and paid in cash or (ii) declared and a sum
sufficient for the payment thereof in cash is set apart for such
payment.  When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series D Preferred Stock and the
shares of any other series of preferred stock ranking on a parity as to
dividends with the Series D Preferred Stock, all dividends declared upon the
Series D Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with the Series D Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Series D Preferred
Stock and such other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series D Preferred
Stock and such other series of preferred stock (which shall not include any
accrual in respect of unpaid dividends on such other series of preferred stock
for prior dividend periods if such other series of preferred stock does not have
a cumulative dividend) bear to each other.  No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series D Preferred Stock which may be in
arrears.

    


    (e)
Except as provided in paragraph 2(d), unless full cumulative dividends on the
Series D Preferred Stock shall have been or contemporaneously are declared and
paid in cash or declared and a sum sufficient for the payment thereof in cash is
set apart for payment for all past dividend periods and the then current
dividend period, no dividends (other than in Common Stock or other capital stock
ranking junior to the Series D Preferred Stock as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or other
dividend shall be declared or made upon the Common Stock or any other capital
stock of the Corporation ranking junior to or on parity with the Series D
Preferred Stock as to dividends or amounts upon liquidation nor shall any shares
of Common Stock, or any other shares of capital stock of the Corporation ranking
junior to or on a parity with the Series D Preferred Stock as to dividends or
upon liquidation, be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such shares) by the Corporation (except by conversion into
or exchange for other shares of capital stock of the Corporation ranking junior
to the Series D Preferred Stock as to dividends and upon liquidation and except
for the acquisition of shares that have been designated as “Shares-in-Trust” in
accordance with the terms of the Certificate of Incorporation).

    


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

    


    
      	
              3.  

            	
              Liquidation
      Rights.

            


    

    


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

     

    
      	
              4.  

            	
              Redemption.

            


    

     

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

     

    (b)
Unless full cumulative dividends on all Series D Preferred Stock shall have been
or contemporaneously are declared and paid in cash or declared and a sum
sufficient for the payment thereof in cash set apart for payment for all past
dividend periods and the then current dividend period, no Series D Preferred
Stock shall be redeemed unless all outstanding shares of Series D Preferred
Stock are simultaneously redeemed and the Corporation shall not purchase or
otherwise acquire directly or indirectly any shares of Series D Preferred Stock
(except by exchange for shares of capital stock of the Corporation ranking
junior to the Series D Preferred Stock as to dividends and amounts upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase by the Corporation in accordance with the terms of the Certificate of
Incorporation of shares of the Corporation designated as “Shares-in-Trust”
thereunder or the purchase or acquisition of Series D Preferred Stock pursuant
to a purchase or exchange offer made on the same terms to holders of all
outstanding shares of Series D Preferred Stock.

     

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

     

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

    


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

    


    (f) The
Series D Preferred Stock shall have no stated maturity and shall not be subject
to any sinking fund or mandatory redemption; provided, however, that the Series
D Preferred Stock owned by a stockholder in excess of the Ownership Limit (as
defined in the Certificate of Incorporation) shall be subject to the provisions
of Article IV of the Certificate of Incorporation.

     

    
      	
              5.  

            	
              Voting Rights.

            




    (a)
Holders of the Series D Preferred Stock shall not have any voting rights, except
as provided by applicable law and as set forth in this paragraph 5.

    


    (b)
Whenever dividends on any shares of Series D Preferred Stock shall be in arrears
for six or more consecutive or non-consecutive quarterly periods (a “Preferred
Dividend Default”), the holders of such Series D Preferred Stock (voting
together as a class with the holders of all other classes or series of equity
securities of the Corporation ranking on parity with the Series D Preferred
Stock upon which like voting rights have been conferred and are exercisable
(“Parity Preferred”)) shall be entitled at the next annual meeting of
stockholders to elect two additional directors to the Board of Directors (the
“Preferred Directors”).  Notwithstanding the foregoing, if, prior to
the election of Preferred Directors in the manner described in this paragraph,
all accumulated dividends are paid on the Series D Preferred Stock and all other
classes or series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, no Preferred Directors shall be so
elected.  Any Preferred Directors so elected will serve until all
unpaid cumulative dividends have been paid or declared and set apart for
payment.  Upon such election, the size of the Board of Directors will
be increased by two directors.  If and when all such accumulated
dividends shall have been paid on the Series D Preferred Stock and all other
classes or series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Director so
elected will terminate and the size of the Board of Directors will be reduced
accordingly.  So long as a Preferred Dividend Default shall continue,
any vacancy in the office of a Preferred Director may be filled by written
consent of the Preferred Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the outstanding
Series D Preferred Stock when they have the voting rights described above
(voting together as a class with the holders of all other classes or series of
Parity Preferred).  Each of the Preferred Directors shall be entitled
to one vote on any matter.

    


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

    


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

    


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

     

    
      	
              6.  

            	
              Conversion.

            




    The
shares of Series D Preferred Stock shall not be convertible into or exchangeable
for any other property or securities of the Corporation.

     

    
      	
              7.  

            	
              Ranking.

            




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

     

    
      	
              8.  

            	
              Exclusion
      of Other Rights.

            




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

     

    
      	
              9.  

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

     

    
      	
              11.  

            	
              No
      Preemptive Rights.

            




    No holder
of Series D Preferred Stock shall be entitled to any preemptive rights to
subscribe for or acquire any unissued shares of capital stock of the Corporation
(whether now or hereafter authorized) or securities of the Corporation
convertible into or carrying a right to subscribe to or acquire shares of
capital stock of the Corporation.

     

    


     

    


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    IN
WITNESS WHEREOF, CBL & Associates Properties, Inc. has caused this Amended
and Restated Certificate of Designations, Number, Voting Powers, Preferences and
Rights of 7.375% Series D Cumulative Redeemable Preferred Stock to be duly
executed by its Vice Chairman of the Board and Chief Financial Officer this
25th day of
February,
2010.

    


    


    CBL & Associates
Properties, Inc.

    


    


    By:           /s/  John N.
Foy                                           

    John N. Foy

    Vice Chairman of the
Board

    and Chief Financial
Officer