Delaware | 1-12494 | 62-1545718 | ||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||
Suite 500, 2030 Hamilton Place Blvd., Chattanooga, TN 37421 | ||||
(Address of principal executive office, including zip code) | ||||
(423) 855-0001 | ||||
(Registrant's telephone number, including area code) | ||||
N/A | ||||
(Former name, former address and former fiscal year, if changed since last report) |
£ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
£ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
£ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
£ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
(a) | Financial Statements of Businesses Acquired |
(b) | Pro Forma Financial Information |
(c) | Shell Company Transactions |
(d) | Exhibits |
Exhibit Number | Description | |
5.6 | Opinion of Husch Blackwell LLP as to the legality of the registered securities. | |
8.3 | Tax opinion of Husch Blackwell LLP, counsel for the Company. | |
10.1 | Controlled Equity OfferingSM Sales Agreement, dated March 1, 2013, by and between CBL & Associates Properties, Inc. and Cantor Fitzgerald & Co. | |
10.2 | Controlled Equity OfferingSM Sales Agreement, dated March 1, 2013, by and between CBL & Associates Properties, Inc. and J.P. Morgan Securities LLC. | |
10.3 | Controlled Equity OfferingSM Sales Agreement, dated March 1, 2013, by and between CBL & Associates Properties, Inc. and KeyBanc Capital Markets Inc. | |
10.4 | Controlled Equity OfferingSM Sales Agreement, dated March 1, 2013, by and between CBL & Associates Properties, Inc. and RBC Capital Markets, LLC. | |
10.5 | Controlled Equity OfferingSM Sales Agreement, dated March 1, 2013, by and between CBL & Associates Properties, Inc. and Wells Fargo Securities, LLC. | |
23.13 | Consent of Husch Blackwell LLP (included in Exhibit 5.6 and Exhibit 8.3). |
Re: | CBL & Associates Properties, Inc. |
(1) | the Registration Statement and the Prospectus; |
(2) | the Amended and Restated Certificate of Incorporation of the Company, as presently in effect, as certified by a certificate of the Secretary of State of the State of Delaware (the “Delaware Secretary”) dated February 20, 2013; |
(3) | the Certificate of Good Standing with respect to the Company issued by the Delaware Secretary and dated as of March 1, 2013; |
(5) | the Fourth Amended and Restated Partnership Agreement of the Operating Partnership dated November 2, 2010, as amended and supplemented to date; |
(6) | the Certificate of Incorporation and Bylaws of CBL Holdings I, Inc., a Delaware corporation which is a wholly owned subsidiary of the Company and serves as the General Partner of the Operating Partnership (“CBL Holdings I”), as presently in effect; |
(7) | the Certificate of Incorporation and Bylaws of CBL Holdings II, Inc., a Delaware corporation and a wholly owned subsidiary of the Company (“CBL Holdings II”), as presently in effect; |
(8) | each of the Controlled Equity OfferingSM Sales Agreements concerning the Offered Securities dated March 1, 2013 by and among the Company, the Operating Partnership and each of Cantor Fitzgerald & Co., J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., RBC Capital Markets, LLC and Wells Fargo Securities, LLC (collectively, the “Sales Agreements”); |
(9) | certain resolutions of the Board of Directors of the Company (a) duly adopted at a meeting held on June 1, 2012, relating to the original filing of the Registration Statement and Prospectus and related matters and (b) duly adopted at a meeting held on November 6, 2012, relating to the Offered Securities and related matters, each as certified by the Secretary of the Company in the Certificate of the Secretary of CBL& Associates Properties, Inc. dated as of even date herewith (the “Secretary's Certificate”); and |
(10) | certain resolutions of the Board of Directors of CBL Holdings I, duly adopted by unanimous written consent effective as of February 28, 2013, relating to the Common Units of limited partnership interest in the Operating Partnership to be issued to CBL Holdings II in exchange for the Company's contribution to the Operating Partnership of the proceeds from the sale of the Offered Securities, and related matters, as certified by the Secretary of CBL Holdings I in the Certificate of the Secretary of CBL Holdings I, Inc. dated as of even date herewith (the “Holdings I Secretary's Certificate”). |
(1) | that the Offered Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner and at prices determined as stated in the Registration Statement and the Prospectus; and |
(2) | that the Sales Agreements are complete or will be appropriately completed (including, without limitation, all amendments and exhibits thereto) and as executed, will be identical to the form we examined. |
(i) | The Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code during its taxable years ended December 31, 2005 through December 31, 2012, and that its current and proposed organization and method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT thereafter; and |
(ii) | The statements included in the Prospectus under the heading “Material U.S. Federal Income Tax Considerations,” insofar as such statements discuss matters of United States |
Very truly yours, | |
CBL & ASSOCIATES PROPERTIES, INC. | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
CBL & ASSOCIATES LIMITED PARTNERSHIP | |
By CBL Holding I, Inc., its general partner | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
ACCEPTED as of the date | |
first-above written: | |
CANTOR FITZGERALD & CO. | |
By: /s/ Jeffrey Lumby | |
Name: Jeffrey Lumby | |
Title: Sr. Managing Director |
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
Jeffrey Lumby | jlumby@cantor.com |
Joshua Feldman | jfeldman@cantor.com |
Farzana Mitchell | farzana_mitchell@cblproperties.com |
Katie Reinsmidt | katie_reinsmidt@cblproperties.com |
Andy Cobb | andy_cobb@cblproperties.com |
Stephen Lebovitz | stephen_lebovitz@cblproperties.com |
Name | State of Incorporation or Formation |
Arbor Place Limited Partnership | Georgia |
CBL & Associates Limited Partnership | Delaware |
CBL & Associates Management, Inc. | Delaware |
CBL Holdings I, Inc. | Delaware |
CBL Holdings II, Inc. | Delaware |
CBL SubREIT, Inc. | Maryland |
CBL/GP, Inc. | Wyoming |
CBL/J I, LLC | Delaware |
CBL/J II, LLC | Delaware |
Chattanooga Insurance Company Ltd | Bermuda |
CW Joint Venture LLC | Delaware |
Imperial Valley Commons LP | California |
IV Commons LLC | California |
St. Clair Square GP, Inc. | Illinois |
SubREIT Investor-Boston General Partnership | Massachusetts |
SubREIT Investor-Boston GP I, LLC | Massachusetts |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of each of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
Re: | CBL & Associates Properties, Inc. — Common Stock having an aggregate offering price of up to $300,000,000 |
1. | the Registration Statement on Form S-3, as amended (No. 333-182515), relating to the Securities, dated March 1, 2013, as filed by the Company with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”) (such registration statement, including the documents incorporated or deemed to be incorporated by reference therein, being referred to herein as the “Registration Statement”); |
2. | the Prospectus Supplement, dated March 1, 2013, as filed by the Company pursuant to Rule 424(b) of the Act, and the accompanying base prospectus included as part of the Registration Statement, each relating to the Securities (such base prospectus and Prospectus Supplement being referred to herein as the “Prospectus”); |
3. | the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated or deemed incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 through the date hereof; and |
4. | an executed copy of each of the Sales Agreements. |
1. | the Documents; |
2. | the Officers’ Certificate, executed by an officer of the Company, delivered to the Sales Agents pursuant to Section 7(m) of each of the Sales Agreements, in the form attached hereto as Exhibit A (the “Officers’ Certificate”); |
3. | the Officer’s Certificate, executed by an officer of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit B (the “Company Certificate”); |
4. | the Secretary’s Certificate, executed by the secretary of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit C (the “Secretary Certificate”); |
5. | copies, certified by the Secretary of State of the State of Delaware, of the certificate of incorporation or certificate of limited partnership, as the case may be, of each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
6. | certificates of good standing and legal existence from the State of Delaware with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
7. | certificates of good standing and legal existence as a foreign corporation or foreign limited partnership from public officials in the states named in Schedule A attached hereto with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
8. | the bylaws of each of the Company, CBL Holdings I and CBL Holdings II; and |
9. | the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
1. | Each of the Company, CBL Holdings I and CBL Holdings II is a corporation duly incorporated, legally existing and in good standing under the laws of the State of Delaware and has the corporate power to own its properties and conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign corporation in such states. |
2. | The Operating Partnership is a partnership duly formed, legally existing and in good standing under the laws of the State of Delaware; the Operating Partnership Agreement has been duly authorized, executed and delivered by each of CBL Holdings I and CBL Holdings II and is valid, legally binding and enforceable in accordance with its terms; and the partnership interests of the Operating Partnership owned by CBL Holdings I and CBL, Holdings II have been duly authorized and validly issued, and are owned by them. |
3. | The Operating Partnership has the partnership power under the Operating Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign limited partnership in such states. |
4. | The execution and delivery by each of the Company and the Operating Partnership of the Sales Agreements have been duly authorized by all necessary corporate action of the Company or partnership action of the Operating Partnership, and the Sales Agreements |
5. | The Securities have been duly authorized by all necessary corporate action and, upon delivery to the Sales Agents against payment therefor in accordance with the terms of the Sales Agreements, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not subject to preemptive rights. |
7. | The Securities are duly authorized for listing on the New York Stock Exchange, subject to official notice of issuance. |
8. | The execution and delivery of the Sales Agreements and the performance by the Company and the Operating Partnership of their respective obligations thereunder (i) do not violate or result in a violation of the certificate of incorporation or bylaws of the Company, CBL Holdings I or CBL Holdings II or the certificate of limited partnership of the Operating Partnership or the Operating Partnership Agreement, and (ii) do not violate any statute, rule, regulation or judgment, order or decree known to us of any court or governmental authority or agency having jurisdiction over the Company, CBL Holdings I, CBL Holdings II or the Operating Partnership. |
9. | The Securities conform in all material respects to the description thereof contained under the headings “Description of Capital Stock” in the Prospectus. |
10. | Neither the Company nor the Operating Partnership is, nor after receipt of the proceeds from the sale of the Securities and the use of such proceeds in accordance with the “Use of Proceeds” section of the Prospectus will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. |
11. | The Registration Statement has become effective under the Act, and we are not aware that any stop order suspending the effectiveness thereof has been issued or any proceedings for that purpose have been instituted or are pending or threatened under the Act. |
12. | Each of the documents that are incorporated or deemed incorporated by reference into the Prospectus at the time it was filed or last amended (other than the financial statements and supporting schedules and other financial or statistical data derived from such financial statements included therein, as to which we express no opinion), when it was filed with the Commission (or, if later, upon filing of an amendment thereto) complied, as of its respective date, as to form in all material respects with the requirements of the Exchange Act. |
13. | The Registration Statement, the Prospectus, and each amendment or supplement to the Registration Statement and Prospectus (in each case other than (i) the financial statements and supporting schedules and other financial or statistical data derived from such |
14. | No authorization, approval or consent of any court or governmental authority or agency is required in connection with the transactions contemplated by the Sales Agreements, except such as have been obtained under the Act and from the NYSE and such as may be required under state securities or blue sky laws in connection with sale from time to time of the Securities on the Company’s behalf by the Sales Agents. |
15. | The Company has an authorized capitalization as set forth or incorporated by reference in the Registration Statement and the Prospectus. |
16. | The partnership interests of the Operating Partnership have been duly authorized by all necessary partnership action and validly issued and, assuming that the holders of limited partner interests of the Operating Partnership do not participate in the control of the business of the Operating Partnership, the Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). |
17. | The Common Units to be issued to CBL Holdings II by the Operating Partnership in conjunction with the issuance by the Company of the Securities have been duly authorized by all necessary partnership action and validly issued and, assuming that CBL Holdings II does not participate in the control of the business of the Operating Partnership, such Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). To our knowledge, except as described in the Registration Statement and the Prospectus, there are no preemptive rights to purchase or subscribe for partnership interests of the Operating Partnership or any other securities of the Operating Partnership. |
18. | The execution and delivery of the Sales Agreements by each of the Company and the Operating Partnership and the performance by each of the Company and the Operating Partnership of its obligations thereunder and the consummation of the transactions therein contemplated do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any contract set forth on Exhibit D attached hereto. |
Foreign Qualifications | |
ENTITY | STATE |
CBL & Associates Properties, Inc. | Delaware (State of Incorporation) |
Tennessee | |
CBL Holdings I, Inc. | Delaware (State of Incorporation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming | |
CBL Holdings II, Inc. | Delaware (State of Incorporation) |
CBL & Associates Management, Inc. | Delaware (State of Incorporation) |
Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming | |
CBL & Associates Limited Partnership | Delaware (State of creation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming |
1. | Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
2. | Certificate of Designation, dated October 1, 2012, relating to the 6.625% Series E Cumulative Preferred Units. |
3. | Share Ownership Agreement by and among the Company and its related parties and the Jacobs entities, dated as of January 31, 2001. |
4. | Contribution Agreement among Westfield America Limited Partnership, as Transferor, and CW Joint Venture, LLC, as Transferee, and CBL & Associates Limited Partnership, dated August 9, 2007. |
5. | Contribution Agreement among CBL & Associates Limited Partnership, as Transferor, St. Clair Square, GP, Inc. and CW Joint Venture, LLC, as Transferee, and Westfield America Limited Partnership, dated August 9, 2007. |
6. | Purchase and Sale Agreement between Westfield America Limited Partnership, as Transferor, and CBL & Associates Limited Partnership, as Transferee, dated August 9, 2007. |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
(A) | any real property and buildings held under lease by the Company and its subsidiaries, as a lessee, 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 |
(B) | the execution and delivery of each of the Sales Agreements by each of the Company and the Operating Partnership, and the performance by each of the Company and the Operating Partnership of its obligations thereunder, and the consummation of the transactions therein contemplated, do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any of the contracts listed as Exhibits numbered 10.11.1, 10.11.2, 10.11.3, 10.11.4, 10.15.1, 10.15.2, 10.15.3, 10.20.1, 10.20.2, 10.20.3, 10.21.1, 10.21.2, 10.23.1, 10.23.2, 10.24.1 and 10.24.2, to the Company’s Annual Report on Form 10-K as filed with the Commission on March 1, 2013; and |
(C) | to the best of my knowledge and other than as set forth in the Registration Statement and 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 such Subsidiaries is the subject which, if determined adversely to the Company or any of the 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 my 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 Section 2(C), I express no opinion with respect to the Securities Act (as it relates to the Transactions) or to any state or foreign securities or Blue Sky laws. |
By: | ||
Name: Farzana K. Mitchell | ||
Title: Executive Vice President – Chief Financial Officer and Treasurer |
Very truly yours, | |
CBL & ASSOCIATES PROPERTIES, INC. | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
CBL & ASSOCIATES LIMITED PARTNERSHIP | |
By CBL Holding I, Inc., its general partner | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
ACCEPTED as of the date | |
first-above written: | |
J.P. MORGAN SECURITIES LLC | |
By: /s/ Youn H. Lee | |
Name: Youn H. Lee | |
Title: Executive Director |
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
Youn Lee | youn.h.lee@jpmorgan.com |
Ara Movsesian | ara.movsesian@jpmorgan.com |
Angela Terra | angela.b.terra@jpmorgan.com |
Farzana Mitchell | farzana_mitchell@cblproperties.com |
Katie Reinsmidt | katie_reinsmidt@cblproperties.com |
Andy Cobb | andy_cobb@cblproperties.com |
Stephen Lebovitz | stephen_lebovitz@cblproperties.com |
Name | State of Incorporation or Formation |
Arbor Place Limited Partnership | Georgia |
CBL & Associates Limited Partnership | Delaware |
CBL & Associates Management, Inc. | Delaware |
CBL Holdings I, Inc. | Delaware |
CBL Holdings II, Inc. | Delaware |
CBL SubREIT, Inc. | Maryland |
CBL/GP, Inc. | Wyoming |
CBL/J I, LLC | Delaware |
CBL/J II, LLC | Delaware |
Chattanooga Insurance Company Ltd | Bermuda |
CW Joint Venture LLC | Delaware |
Imperial Valley Commons LP | California |
IV Commons LLC | California |
St. Clair Square GP, Inc. | Illinois |
SubREIT Investor-Boston General Partnership | Massachusetts |
SubREIT Investor-Boston GP I, LLC | Massachusetts |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of each of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
Re: | CBL & Associates Properties, Inc. — Common Stock having an aggregate offering price of up to $300,000,000 |
1. | the Registration Statement on Form S-3, as amended (No. 333-182515), relating to the Securities, dated March 1, 2013, as filed by the Company with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”) (such registration statement, including the documents incorporated or deemed to be incorporated by reference therein, being referred to herein as the “Registration Statement”); |
2. | the Prospectus Supplement, dated March 1, 2013, as filed by the Company pursuant to Rule 424(b) of the Act, and the accompanying base prospectus included as part of the Registration Statement, each relating to the Securities (such base prospectus and Prospectus Supplement being referred to herein as the “Prospectus”); |
3. | the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated or deemed incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 through the date hereof; and |
4. | an executed copy of each of the Sales Agreements. |
1. | the Documents; |
2. | the Officers’ Certificate, executed by an officer of the Company, delivered to the Sales Agents pursuant to Section 7(m) of each of the Sales Agreements, in the form attached hereto as Exhibit A (the “Officers’ Certificate”); |
3. | the Officer’s Certificate, executed by an officer of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit B (the “Company Certificate”); |
4. | the Secretary’s Certificate, executed by the secretary of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit C (the “Secretary Certificate”); |
5. | copies, certified by the Secretary of State of the State of Delaware, of the certificate of incorporation or certificate of limited partnership, as the case may be, of each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
6. | certificates of good standing and legal existence from the State of Delaware with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
7. | certificates of good standing and legal existence as a foreign corporation or foreign limited partnership from public officials in the states named in Schedule A attached hereto with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
8. | the bylaws of each of the Company, CBL Holdings I and CBL Holdings II; and |
9. | the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
1. | Each of the Company, CBL Holdings I and CBL Holdings II is a corporation duly incorporated, legally existing and in good standing under the laws of the State of Delaware and has the corporate power to own its properties and conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign corporation in such states. |
2. | The Operating Partnership is a partnership duly formed, legally existing and in good standing under the laws of the State of Delaware; the Operating Partnership Agreement has been duly authorized, executed and delivered by each of CBL Holdings I and CBL Holdings II and is valid, legally binding and enforceable in accordance with its terms; and the partnership interests of the Operating Partnership owned by CBL Holdings I and CBL, Holdings II have been duly authorized and validly issued, and are owned by them. |
3. | The Operating Partnership has the partnership power under the Operating Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign limited partnership in such states. |
4. | The execution and delivery by each of the Company and the Operating Partnership of the Sales Agreements have been duly authorized by all necessary corporate action of the Company or partnership action of the Operating Partnership, and the Sales Agreements |
5. | The Securities have been duly authorized by all necessary corporate action and, upon delivery to the Sales Agents against payment therefor in accordance with the terms of the Sales Agreements, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not subject to preemptive rights. |
7. | The Securities are duly authorized for listing on the New York Stock Exchange, subject to official notice of issuance. |
8. | The execution and delivery of the Sales Agreements and the performance by the Company and the Operating Partnership of their respective obligations thereunder (i) do not violate or result in a violation of the certificate of incorporation or bylaws of the Company, CBL Holdings I or CBL Holdings II or the certificate of limited partnership of the Operating Partnership or the Operating Partnership Agreement, and (ii) do not violate any statute, rule, regulation or judgment, order or decree known to us of any court or governmental authority or agency having jurisdiction over the Company, CBL Holdings I, CBL Holdings II or the Operating Partnership. |
9. | The Securities conform in all material respects to the description thereof contained under the headings “Description of Capital Stock” in the Prospectus. |
10. | Neither the Company nor the Operating Partnership is, nor after receipt of the proceeds from the sale of the Securities and the use of such proceeds in accordance with the “Use of Proceeds” section of the Prospectus will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. |
11. | The Registration Statement has become effective under the Act, and we are not aware that any stop order suspending the effectiveness thereof has been issued or any proceedings for that purpose have been instituted or are pending or threatened under the Act. |
12. | Each of the documents that are incorporated or deemed incorporated by reference into the Prospectus at the time it was filed or last amended (other than the financial statements and supporting schedules and other financial or statistical data derived from such financial statements included therein, as to which we express no opinion), when it was filed with the Commission (or, if later, upon filing of an amendment thereto) complied, as of its respective date, as to form in all material respects with the requirements of the Exchange Act. |
13. | The Registration Statement, the Prospectus, and each amendment or supplement to the Registration Statement and Prospectus (in each case other than (i) the financial statements and supporting schedules and other financial or statistical data derived from such |
14. | No authorization, approval or consent of any court or governmental authority or agency is required in connection with the transactions contemplated by the Sales Agreements, except such as have been obtained under the Act and from the NYSE and such as may be required under state securities or blue sky laws in connection with sale from time to time of the Securities on the Company’s behalf by the Sales Agents. |
15. | The Company has an authorized capitalization as set forth or incorporated by reference in the Registration Statement and the Prospectus. |
16. | The partnership interests of the Operating Partnership have been duly authorized by all necessary partnership action and validly issued and, assuming that the holders of limited partner interests of the Operating Partnership do not participate in the control of the business of the Operating Partnership, the Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). |
17. | The Common Units to be issued to CBL Holdings II by the Operating Partnership in conjunction with the issuance by the Company of the Securities have been duly authorized by all necessary partnership action and validly issued and, assuming that CBL Holdings II does not participate in the control of the business of the Operating Partnership, such Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). To our knowledge, except as described in the Registration Statement and the Prospectus, there are no preemptive rights to purchase or subscribe for partnership interests of the Operating Partnership or any other securities of the Operating Partnership. |
18. | The execution and delivery of the Sales Agreements by each of the Company and the Operating Partnership and the performance by each of the Company and the Operating Partnership of its obligations thereunder and the consummation of the transactions therein contemplated do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any contract set forth on Exhibit D attached hereto. |
Foreign Qualifications | |
ENTITY | STATE |
CBL & Associates Properties, Inc. | Delaware (State of Incorporation) |
Tennessee | |
CBL Holdings I, Inc. | Delaware (State of Incorporation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming | |
CBL Holdings II, Inc. | Delaware (State of Incorporation) |
CBL & Associates Management, Inc. | Delaware (State of Incorporation) |
Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming | |
CBL & Associates Limited Partnership | Delaware (State of creation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming |
1. | Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
2. | Certificate of Designation, dated October 1, 2012, relating to the 6.625% Series E Cumulative Preferred Units. |
3. | Share Ownership Agreement by and among the Company and its related parties and the Jacobs entities, dated as of January 31, 2001. |
4. | Contribution Agreement among Westfield America Limited Partnership, as Transferor, and CW Joint Venture, LLC, as Transferee, and CBL & Associates Limited Partnership, dated August 9, 2007. |
5. | Contribution Agreement among CBL & Associates Limited Partnership, as Transferor, St. Clair Square, GP, Inc. and CW Joint Venture, LLC, as Transferee, and Westfield America Limited Partnership, dated August 9, 2007. |
6. | Purchase and Sale Agreement between Westfield America Limited Partnership, as Transferor, and CBL & Associates Limited Partnership, as Transferee, dated August 9, 2007. |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
(A) | any real property and buildings held under lease by the Company and its subsidiaries, as a lessee, 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 |
(B) | the execution and delivery of each of the Sales Agreements by each of the Company and the Operating Partnership, and the performance by each of the Company and the Operating Partnership of its obligations thereunder, and the consummation of the transactions therein contemplated, do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any of the contracts listed as Exhibits numbered 10.11.1, 10.11.2, 10.11.3, 10.11.4, 10.15.1, 10.15.2, 10.15.3, 10.20.1, 10.20.2, 10.20.3, 10.21.1, 10.21.2, 10.23.1, 10.23.2, 10.24.1 and 10.24.2, to the Company’s Annual Report on Form 10-K as filed with the Commission on March 1, 2013; and |
(C) | to the best of my knowledge and other than as set forth in the Registration Statement and 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 such Subsidiaries is the subject which, if determined adversely to the Company or any of the 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 my 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 Section 2(C), I express no opinion with respect to the Securities Act (as it relates to the Transactions) or to any state or foreign securities or Blue Sky laws. |
By: | ||
Name: Farzana K. Mitchell | ||
Title: Executive Vice President – Chief Financial Officer and Treasurer |
Very truly yours, | |
CBL & ASSOCIATES PROPERTIES, INC. | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
CBL & ASSOCIATES LIMITED PARTNERSHIP | |
By CBL Holding I, Inc., its general partner | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
ACCEPTED as of the date | |
first-above written: | |
KEYBANC CAPITAL MARKETS INC. | |
By: /s/ Mark J. Koster | |
Name: Mark J. Koster | |
Title: Managing Director |
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
David Gruber | dgruber@key.com |
Paul Hodermarsky | phodermarsky@key.com |
Mark Koster | mkoster@key.com |
Michael Jones | michael.c.jones@key.com |
Farzana Mitchell | farzana_mitchell@cblproperties.com |
Katie Reinsmidt | katie_reinsmidt@cblproperties.com |
Andy Cobb | andy_cobb@cblproperties.com |
Stephen Lebovitz | stephen_lebovitz@cblproperties.com |
Name | State of Incorporation or Formation |
Arbor Place Limited Partnership | Georgia |
CBL & Associates Limited Partnership | Delaware |
CBL & Associates Management, Inc. | Delaware |
CBL Holdings I, Inc. | Delaware |
CBL Holdings II, Inc. | Delaware |
CBL SubREIT, Inc. | Maryland |
CBL/GP, Inc. | Wyoming |
CBL/J I, LLC | Delaware |
CBL/J II, LLC | Delaware |
Chattanooga Insurance Company Ltd | Bermuda |
CW Joint Venture LLC | Delaware |
Imperial Valley Commons LP | California |
IV Commons LLC | California |
St. Clair Square GP, Inc. | Illinois |
SubREIT Investor-Boston General Partnership | Massachusetts |
SubREIT Investor-Boston GP I, LLC | Massachusetts |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of each of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
Re: | CBL & Associates Properties, Inc. — Common Stock having an aggregate offering price of up to $300,000,000 |
1. | the Registration Statement on Form S-3, as amended (No. 333-182515), relating to the Securities, dated March 1, 2013, as filed by the Company with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”) (such registration statement, including the documents incorporated or deemed to be incorporated by reference therein, being referred to herein as the “Registration Statement”); |
2. | the Prospectus Supplement, dated March 1, 2013, as filed by the Company pursuant to Rule 424(b) of the Act, and the accompanying base prospectus included as part of the Registration Statement, each relating to the Securities (such base prospectus and Prospectus Supplement being referred to herein as the “Prospectus”); |
3. | the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated or deemed incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 through the date hereof; and |
4. | an executed copy of each of the Sales Agreements. |
1. | the Documents; |
2. | the Officers’ Certificate, executed by an officer of the Company, delivered to the Sales Agents pursuant to Section 7(m) of each of the Sales Agreements, in the form attached hereto as Exhibit A (the “Officers’ Certificate”); |
3. | the Officer’s Certificate, executed by an officer of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit B (the “Company Certificate”); |
4. | the Secretary’s Certificate, executed by the secretary of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit C (the “Secretary Certificate”); |
5. | copies, certified by the Secretary of State of the State of Delaware, of the certificate of incorporation or certificate of limited partnership, as the case may be, of each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
6. | certificates of good standing and legal existence from the State of Delaware with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
7. | certificates of good standing and legal existence as a foreign corporation or foreign limited partnership from public officials in the states named in Schedule A attached hereto with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
8. | the bylaws of each of the Company, CBL Holdings I and CBL Holdings II; and |
9. | the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
1. | Each of the Company, CBL Holdings I and CBL Holdings II is a corporation duly incorporated, legally existing and in good standing under the laws of the State of Delaware and has the corporate power to own its properties and conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign corporation in such states. |
2. | The Operating Partnership is a partnership duly formed, legally existing and in good standing under the laws of the State of Delaware; the Operating Partnership Agreement has been duly authorized, executed and delivered by each of CBL Holdings I and CBL Holdings II and is valid, legally binding and enforceable in accordance with its terms; and the partnership interests of the Operating Partnership owned by CBL Holdings I and CBL, Holdings II have been duly authorized and validly issued, and are owned by them. |
3. | The Operating Partnership has the partnership power under the Operating Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign limited partnership in such states. |
4. | The execution and delivery by each of the Company and the Operating Partnership of the Sales Agreements have been duly authorized by all necessary corporate action of the Company or partnership action of the Operating Partnership, and the Sales Agreements |
5. | The Securities have been duly authorized by all necessary corporate action and, upon delivery to the Sales Agents against payment therefor in accordance with the terms of the Sales Agreements, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not subject to preemptive rights. |
7. | The Securities are duly authorized for listing on the New York Stock Exchange, subject to official notice of issuance. |
8. | The execution and delivery of the Sales Agreements and the performance by the Company and the Operating Partnership of their respective obligations thereunder (i) do not violate or result in a violation of the certificate of incorporation or bylaws of the Company, CBL Holdings I or CBL Holdings II or the certificate of limited partnership of the Operating Partnership or the Operating Partnership Agreement, and (ii) do not violate any statute, rule, regulation or judgment, order or decree known to us of any court or governmental authority or agency having jurisdiction over the Company, CBL Holdings I, CBL Holdings II or the Operating Partnership. |
9. | The Securities conform in all material respects to the description thereof contained under the headings “Description of Capital Stock” in the Prospectus. |
10. | Neither the Company nor the Operating Partnership is, nor after receipt of the proceeds from the sale of the Securities and the use of such proceeds in accordance with the “Use of Proceeds” section of the Prospectus will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. |
11. | The Registration Statement has become effective under the Act, and we are not aware that any stop order suspending the effectiveness thereof has been issued or any proceedings for that purpose have been instituted or are pending or threatened under the Act. |
12. | Each of the documents that are incorporated or deemed incorporated by reference into the Prospectus at the time it was filed or last amended (other than the financial statements and supporting schedules and other financial or statistical data derived from such financial statements included therein, as to which we express no opinion), when it was filed with the Commission (or, if later, upon filing of an amendment thereto) complied, as of its respective date, as to form in all material respects with the requirements of the Exchange Act. |
13. | The Registration Statement, the Prospectus, and each amendment or supplement to the Registration Statement and Prospectus (in each case other than (i) the financial statements and supporting schedules and other financial or statistical data derived from such |
14. | No authorization, approval or consent of any court or governmental authority or agency is required in connection with the transactions contemplated by the Sales Agreements, except such as have been obtained under the Act and from the NYSE and such as may be required under state securities or blue sky laws in connection with sale from time to time of the Securities on the Company’s behalf by the Sales Agents. |
15. | The Company has an authorized capitalization as set forth or incorporated by reference in the Registration Statement and the Prospectus. |
16. | The partnership interests of the Operating Partnership have been duly authorized by all necessary partnership action and validly issued and, assuming that the holders of limited partner interests of the Operating Partnership do not participate in the control of the business of the Operating Partnership, the Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). |
17. | The Common Units to be issued to CBL Holdings II by the Operating Partnership in conjunction with the issuance by the Company of the Securities have been duly authorized by all necessary partnership action and validly issued and, assuming that CBL Holdings II does not participate in the control of the business of the Operating Partnership, such Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). To our knowledge, except as described in the Registration Statement and the Prospectus, there are no preemptive rights to purchase or subscribe for partnership interests of the Operating Partnership or any other securities of the Operating Partnership. |
18. | The execution and delivery of the Sales Agreements by each of the Company and the Operating Partnership and the performance by each of the Company and the Operating Partnership of its obligations thereunder and the consummation of the transactions therein contemplated do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any contract set forth on Exhibit D attached hereto. |
Foreign Qualifications | |
ENTITY | STATE |
CBL & Associates Properties, Inc. | Delaware (State of Incorporation) |
Tennessee | |
CBL Holdings I, Inc. | Delaware (State of Incorporation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming | |
CBL Holdings II, Inc. | Delaware (State of Incorporation) |
CBL & Associates Management, Inc. | Delaware (State of Incorporation) |
Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming | |
CBL & Associates Limited Partnership | Delaware (State of creation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming |
1. | Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
2. | Certificate of Designation, dated October 1, 2012, relating to the 6.625% Series E Cumulative Preferred Units. |
3. | Share Ownership Agreement by and among the Company and its related parties and the Jacobs entities, dated as of January 31, 2001. |
4. | Contribution Agreement among Westfield America Limited Partnership, as Transferor, and CW Joint Venture, LLC, as Transferee, and CBL & Associates Limited Partnership, dated August 9, 2007. |
5. | Contribution Agreement among CBL & Associates Limited Partnership, as Transferor, St. Clair Square, GP, Inc. and CW Joint Venture, LLC, as Transferee, and Westfield America Limited Partnership, dated August 9, 2007. |
6. | Purchase and Sale Agreement between Westfield America Limited Partnership, as Transferor, and CBL & Associates Limited Partnership, as Transferee, dated August 9, 2007. |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
(A) | any real property and buildings held under lease by the Company and its subsidiaries, as a lessee, 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 |
(B) | the execution and delivery of each of the Sales Agreements by each of the Company and the Operating Partnership, and the performance by each of the Company and the Operating Partnership of its obligations thereunder, and the consummation of the transactions therein contemplated, do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any of the contracts listed as Exhibits numbered 10.11.1, 10.11.2, 10.11.3, 10.11.4, 10.15.1, 10.15.2, 10.15.3, 10.20.1, 10.20.2, 10.20.3, 10.21.1, 10.21.2, 10.23.1, 10.23.2, 10.24.1 and 10.24.2, to the Company’s Annual Report on Form 10-K as filed with the Commission on March 1, 2013; and |
(C) | to the best of my knowledge and other than as set forth in the Registration Statement and 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 such Subsidiaries is the subject which, if determined adversely to the Company or any of the 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 my 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 Section 2(C), I express no opinion with respect to the Securities Act (as it relates to the Transactions) or to any state or foreign securities or Blue Sky laws. |
By: | ||
Name: Farzana K. Mitchell | ||
Title: Executive Vice President – Chief Financial Officer and Treasurer |
Very truly yours, | |
CBL & ASSOCIATES PROPERTIES, INC. | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
CBL & ASSOCIATES LIMITED PARTNERSHIP | |
By CBL Holding I, Inc., its general partner | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
ACCEPTED as of the date | |
first-above written: | |
RBC CAPITAL MARKETS, LLC | |
By: /s/ Jennifer Caruso | |
Name: Jennifer Caruso | |
Title: Director |
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
Peter Chapman | peter.chapman@rbccm.com |
Jennifer Caruso | jennifer.caruso@rbccm.com |
Andrew Jones | andrew.jones@rbccm.com |
Dan King | dan.king@rbccm.com |
Farzana Mitchell | farzana_mitchell@cblproperties.com |
Katie Reinsmidt | katie_reinsmidt@cblproperties.com |
Andy Cobb | andy_cobb@cblproperties.com |
Stephen Lebovitz | stephen_lebovitz@cblproperties.com |
Name | State of Incorporation or Formation |
Arbor Place Limited Partnership | Georgia |
CBL & Associates Limited Partnership | Delaware |
CBL & Associates Management, Inc. | Delaware |
CBL Holdings I, Inc. | Delaware |
CBL Holdings II, Inc. | Delaware |
CBL SubREIT, Inc. | Maryland |
CBL/GP, Inc. | Wyoming |
CBL/J I, LLC | Delaware |
CBL/J II, LLC | Delaware |
Chattanooga Insurance Company Ltd | Bermuda |
CW Joint Venture LLC | Delaware |
Imperial Valley Commons LP | California |
IV Commons LLC | California |
St. Clair Square GP, Inc. | Illinois |
SubREIT Investor-Boston General Partnership | Massachusetts |
SubREIT Investor-Boston GP I, LLC | Massachusetts |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of each of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
Re: | CBL & Associates Properties, Inc. — Common Stock having an aggregate offering price of up to $300,000,000 |
1. | the Registration Statement on Form S-3, as amended (No. 333-182515), relating to the Securities, dated March 1, 2013, as filed by the Company with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”) (such registration statement, including the documents incorporated or deemed to be incorporated by reference therein, being referred to herein as the “Registration Statement”); |
2. | the Prospectus Supplement, dated March 1, 2013, as filed by the Company pursuant to Rule 424(b) of the Act, and the accompanying base prospectus included as part of the Registration Statement, each relating to the Securities (such base prospectus and Prospectus Supplement being referred to herein as the “Prospectus”); |
3. | the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated or deemed incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 through the date hereof; and |
4. | an executed copy of each of the Sales Agreements. |
1. | the Documents; |
2. | the Officers’ Certificate, executed by an officer of the Company, delivered to the Sales Agents pursuant to Section 7(m) of each of the Sales Agreements, in the form attached hereto as Exhibit A (the “Officers’ Certificate”); |
3. | the Officer’s Certificate, executed by an officer of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit B (the “Company Certificate”); |
4. | the Secretary’s Certificate, executed by the secretary of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit C (the “Secretary Certificate”); |
5. | copies, certified by the Secretary of State of the State of Delaware, of the certificate of incorporation or certificate of limited partnership, as the case may be, of each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
6. | certificates of good standing and legal existence from the State of Delaware with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
7. | certificates of good standing and legal existence as a foreign corporation or foreign limited partnership from public officials in the states named in Schedule A attached hereto with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
8. | the bylaws of each of the Company, CBL Holdings I and CBL Holdings II; and |
9. | the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
1. | Each of the Company, CBL Holdings I and CBL Holdings II is a corporation duly incorporated, legally existing and in good standing under the laws of the State of Delaware and has the corporate power to own its properties and conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign corporation in such states. |
2. | The Operating Partnership is a partnership duly formed, legally existing and in good standing under the laws of the State of Delaware; the Operating Partnership Agreement has been duly authorized, executed and delivered by each of CBL Holdings I and CBL Holdings II and is valid, legally binding and enforceable in accordance with its terms; and the partnership interests of the Operating Partnership owned by CBL Holdings I and CBL, Holdings II have been duly authorized and validly issued, and are owned by them. |
3. | The Operating Partnership has the partnership power under the Operating Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign limited partnership in such states. |
4. | The execution and delivery by each of the Company and the Operating Partnership of the Sales Agreements have been duly authorized by all necessary corporate action of the Company or partnership action of the Operating Partnership, and the Sales Agreements |
5. | The Securities have been duly authorized by all necessary corporate action and, upon delivery to the Sales Agents against payment therefor in accordance with the terms of the Sales Agreements, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not subject to preemptive rights. |
7. | The Securities are duly authorized for listing on the New York Stock Exchange, subject to official notice of issuance. |
8. | The execution and delivery of the Sales Agreements and the performance by the Company and the Operating Partnership of their respective obligations thereunder (i) do not violate or result in a violation of the certificate of incorporation or bylaws of the Company, CBL Holdings I or CBL Holdings II or the certificate of limited partnership of the Operating Partnership or the Operating Partnership Agreement, and (ii) do not violate any statute, rule, regulation or judgment, order or decree known to us of any court or governmental authority or agency having jurisdiction over the Company, CBL Holdings I, CBL Holdings II or the Operating Partnership. |
9. | The Securities conform in all material respects to the description thereof contained under the headings “Description of Capital Stock” in the Prospectus. |
10. | Neither the Company nor the Operating Partnership is, nor after receipt of the proceeds from the sale of the Securities and the use of such proceeds in accordance with the “Use of Proceeds” section of the Prospectus will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. |
11. | The Registration Statement has become effective under the Act, and we are not aware that any stop order suspending the effectiveness thereof has been issued or any proceedings for that purpose have been instituted or are pending or threatened under the Act. |
12. | Each of the documents that are incorporated or deemed incorporated by reference into the Prospectus at the time it was filed or last amended (other than the financial statements and supporting schedules and other financial or statistical data derived from such financial statements included therein, as to which we express no opinion), when it was filed with the Commission (or, if later, upon filing of an amendment thereto) complied, as of its respective date, as to form in all material respects with the requirements of the Exchange Act. |
13. | The Registration Statement, the Prospectus, and each amendment or supplement to the Registration Statement and Prospectus (in each case other than (i) the financial statements and supporting schedules and other financial or statistical data derived from such |
14. | No authorization, approval or consent of any court or governmental authority or agency is required in connection with the transactions contemplated by the Sales Agreements, except such as have been obtained under the Act and from the NYSE and such as may be required under state securities or blue sky laws in connection with sale from time to time of the Securities on the Company’s behalf by the Sales Agents. |
15. | The Company has an authorized capitalization as set forth or incorporated by reference in the Registration Statement and the Prospectus. |
16. | The partnership interests of the Operating Partnership have been duly authorized by all necessary partnership action and validly issued and, assuming that the holders of limited partner interests of the Operating Partnership do not participate in the control of the business of the Operating Partnership, the Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). |
17. | The Common Units to be issued to CBL Holdings II by the Operating Partnership in conjunction with the issuance by the Company of the Securities have been duly authorized by all necessary partnership action and validly issued and, assuming that CBL Holdings II does not participate in the control of the business of the Operating Partnership, such Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). To our knowledge, except as described in the Registration Statement and the Prospectus, there are no preemptive rights to purchase or subscribe for partnership interests of the Operating Partnership or any other securities of the Operating Partnership. |
18. | The execution and delivery of the Sales Agreements by each of the Company and the Operating Partnership and the performance by each of the Company and the Operating Partnership of its obligations thereunder and the consummation of the transactions therein contemplated do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any contract set forth on Exhibit D attached hereto. |
Foreign Qualifications | |
ENTITY | STATE |
CBL & Associates Properties, Inc. | Delaware (State of Incorporation) |
Tennessee | |
CBL Holdings I, Inc. | Delaware (State of Incorporation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming | |
CBL Holdings II, Inc. | Delaware (State of Incorporation) |
CBL & Associates Management, Inc. | Delaware (State of Incorporation) |
Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming | |
CBL & Associates Limited Partnership | Delaware (State of creation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming |
1. | Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
2. | Certificate of Designation, dated October 1, 2012, relating to the 6.625% Series E Cumulative Preferred Units. |
3. | Share Ownership Agreement by and among the Company and its related parties and the Jacobs entities, dated as of January 31, 2001. |
4. | Contribution Agreement among Westfield America Limited Partnership, as Transferor, and CW Joint Venture, LLC, as Transferee, and CBL & Associates Limited Partnership, dated August 9, 2007. |
5. | Contribution Agreement among CBL & Associates Limited Partnership, as Transferor, St. Clair Square, GP, Inc. and CW Joint Venture, LLC, as Transferee, and Westfield America Limited Partnership, dated August 9, 2007. |
6. | Purchase and Sale Agreement between Westfield America Limited Partnership, as Transferor, and CBL & Associates Limited Partnership, as Transferee, dated August 9, 2007. |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
(A) | any real property and buildings held under lease by the Company and its subsidiaries, as a lessee, 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 |
(B) | the execution and delivery of each of the Sales Agreements by each of the Company and the Operating Partnership, and the performance by each of the Company and the Operating Partnership of its obligations thereunder, and the consummation of the transactions therein contemplated, do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any of the contracts listed as Exhibits numbered 10.11.1, 10.11.2, 10.11.3, 10.11.4, 10.15.1, 10.15.2, 10.15.3, 10.20.1, 10.20.2, 10.20.3, 10.21.1, 10.21.2, 10.23.1, 10.23.2, 10.24.1 and 10.24.2, to the Company’s Annual Report on Form 10-K as filed with the Commission on March 1, 2013; and |
(C) | to the best of my knowledge and other than as set forth in the Registration Statement and 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 such Subsidiaries is the subject which, if determined adversely to the Company or any of the 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 my 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 Section 2(C), I express no opinion with respect to the Securities Act (as it relates to the Transactions) or to any state or foreign securities or Blue Sky laws. |
By: | ||
Name: Farzana K. Mitchell | ||
Title: Executive Vice President – Chief Financial Officer and Treasurer |
Very truly yours, | |
CBL & ASSOCIATES PROPERTIES, INC. | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
CBL & ASSOCIATES LIMITED PARTNERSHIP | |
By CBL Holding I, Inc., its general partner | |
By: /s/ Farzana K. Mitchell | |
Name: Farzana K. Mitchell | |
Title: Executive Vice President – Chief Financial Officer and Treasurer | |
ACCEPTED as of the date | |
first-above written: | |
WELLS FARGO SECURITIES, LLC | |
By: /s/ Marc C. Ogborn | |
Name: Marc C. Ogborn | |
Title: Vice President |
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
Mark Horgan | mhorgan@wellsfargo.com |
Barrett Kollme | barrett.kollme@wellsfargo.com |
Chris Flouhouse | chris.flouhouse@wellsfargo.com |
Jennifer Lynch | jennifer.r.lynch@wellsfargo.com |
William O’Connell | william.oconnell@wellsfargo.com |
Josie Callanan | josie.callanan@wellsfargo.com |
Brian Reale | brian.reale@wellsfargo.com |
Farzana Mitchell | farzana_mitchell@cblproperties.com |
Katie Reinsmidt | katie_reinsmidt@cblproperties.com |
Andy Cobb | andy_cobb@cblproperties.com |
Stephen Lebovitz | stephen_lebovitz@cblproperties.com |
Name | State of Incorporation or Formation |
Arbor Place Limited Partnership | Georgia |
CBL & Associates Limited Partnership | Delaware |
CBL & Associates Management, Inc. | Delaware |
CBL Holdings I, Inc. | Delaware |
CBL Holdings II, Inc. | Delaware |
CBL SubREIT, Inc. | Maryland |
CBL/GP, Inc. | Wyoming |
CBL/J I, LLC | Delaware |
CBL/J II, LLC | Delaware |
Chattanooga Insurance Company Ltd | Bermuda |
CW Joint Venture LLC | Delaware |
Imperial Valley Commons LP | California |
IV Commons LLC | California |
St. Clair Square GP, Inc. | Illinois |
SubREIT Investor-Boston General Partnership | Massachusetts |
SubREIT Investor-Boston GP I, LLC | Massachusetts |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of each of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
Re: | CBL & Associates Properties, Inc. — Common Stock having an aggregate offering price of up to $300,000,000 |
1. | the Registration Statement on Form S-3, as amended (No. 333-182515), relating to the Securities, dated March 1, 2013, as filed by the Company with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”) (such registration statement, including the documents incorporated or deemed to be incorporated by reference therein, being referred to herein as the “Registration Statement”); |
2. | the Prospectus Supplement, dated March 1, 2013, as filed by the Company pursuant to Rule 424(b) of the Act, and the accompanying base prospectus included as part of the Registration Statement, each relating to the Securities (such base prospectus and Prospectus Supplement being referred to herein as the “Prospectus”); |
3. | the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated or deemed incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 through the date hereof; and |
4. | an executed copy of each of the Sales Agreements. |
1. | the Documents; |
2. | the Officers’ Certificate, executed by an officer of the Company, delivered to the Sales Agents pursuant to Section 7(m) of each of the Sales Agreements, in the form attached hereto as Exhibit A (the “Officers’ Certificate”); |
3. | the Officer’s Certificate, executed by an officer of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit B (the “Company Certificate”); |
4. | the Secretary’s Certificate, executed by the secretary of the Company, delivered to Goulston & Storrs, P.C. in connection with this opinion, in the form attached hereto as Exhibit C (the “Secretary Certificate”); |
5. | copies, certified by the Secretary of State of the State of Delaware, of the certificate of incorporation or certificate of limited partnership, as the case may be, of each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
6. | certificates of good standing and legal existence from the State of Delaware with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
7. | certificates of good standing and legal existence as a foreign corporation or foreign limited partnership from public officials in the states named in Schedule A attached hereto with respect to each of the Company, the Operating Partnership, CBL Holdings I and CBL Holdings II; |
8. | the bylaws of each of the Company, CBL Holdings I and CBL Holdings II; and |
9. | the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
1. | Each of the Company, CBL Holdings I and CBL Holdings II is a corporation duly incorporated, legally existing and in good standing under the laws of the State of Delaware and has the corporate power to own its properties and conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign corporation in such states. |
2. | The Operating Partnership is a partnership duly formed, legally existing and in good standing under the laws of the State of Delaware; the Operating Partnership Agreement has been duly authorized, executed and delivered by each of CBL Holdings I and CBL Holdings II and is valid, legally binding and enforceable in accordance with its terms; and the partnership interests of the Operating Partnership owned by CBL Holdings I and CBL, Holdings II have been duly authorized and validly issued, and are owned by them. |
3. | The Operating Partnership has the partnership power under the Operating Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Schedule A hereto, is qualified to transact business and is in good standing as a foreign limited partnership in such states. |
4. | The execution and delivery by each of the Company and the Operating Partnership of the Sales Agreements have been duly authorized by all necessary corporate action of the Company or partnership action of the Operating Partnership, and the Sales Agreements |
5. | The Securities have been duly authorized by all necessary corporate action and, upon delivery to the Sales Agents against payment therefor in accordance with the terms of the Sales Agreements, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not subject to preemptive rights. |
7. | The Securities are duly authorized for listing on the New York Stock Exchange, subject to official notice of issuance. |
8. | The execution and delivery of the Sales Agreements and the performance by the Company and the Operating Partnership of their respective obligations thereunder (i) do not violate or result in a violation of the certificate of incorporation or bylaws of the Company, CBL Holdings I or CBL Holdings II or the certificate of limited partnership of the Operating Partnership or the Operating Partnership Agreement, and (ii) do not violate any statute, rule, regulation or judgment, order or decree known to us of any court or governmental authority or agency having jurisdiction over the Company, CBL Holdings I, CBL Holdings II or the Operating Partnership. |
9. | The Securities conform in all material respects to the description thereof contained under the headings “Description of Capital Stock” in the Prospectus. |
10. | Neither the Company nor the Operating Partnership is, nor after receipt of the proceeds from the sale of the Securities and the use of such proceeds in accordance with the “Use of Proceeds” section of the Prospectus will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. |
11. | The Registration Statement has become effective under the Act, and we are not aware that any stop order suspending the effectiveness thereof has been issued or any proceedings for that purpose have been instituted or are pending or threatened under the Act. |
12. | Each of the documents that are incorporated or deemed incorporated by reference into the Prospectus at the time it was filed or last amended (other than the financial statements and supporting schedules and other financial or statistical data derived from such financial statements included therein, as to which we express no opinion), when it was filed with the Commission (or, if later, upon filing of an amendment thereto) complied, as of its respective date, as to form in all material respects with the requirements of the Exchange Act. |
13. | The Registration Statement, the Prospectus, and each amendment or supplement to the Registration Statement and Prospectus (in each case other than (i) the financial statements and supporting schedules and other financial or statistical data derived from such |
14. | No authorization, approval or consent of any court or governmental authority or agency is required in connection with the transactions contemplated by the Sales Agreements, except such as have been obtained under the Act and from the NYSE and such as may be required under state securities or blue sky laws in connection with sale from time to time of the Securities on the Company’s behalf by the Sales Agents. |
15. | The Company has an authorized capitalization as set forth or incorporated by reference in the Registration Statement and the Prospectus. |
16. | The partnership interests of the Operating Partnership have been duly authorized by all necessary partnership action and validly issued and, assuming that the holders of limited partner interests of the Operating Partnership do not participate in the control of the business of the Operating Partnership, the Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). |
17. | The Common Units to be issued to CBL Holdings II by the Operating Partnership in conjunction with the issuance by the Company of the Securities have been duly authorized by all necessary partnership action and validly issued and, assuming that CBL Holdings II does not participate in the control of the business of the Operating Partnership, such Common Units will represent valid and, subject to the qualifications set forth herein, fully paid limited partner interests in the Operating Partnership (subject to the obligation of a limited partner of the Operating Partnership to make payments provided for in the Operating Partnership Agreement). To our knowledge, except as described in the Registration Statement and the Prospectus, there are no preemptive rights to purchase or subscribe for partnership interests of the Operating Partnership or any other securities of the Operating Partnership. |
18. | The execution and delivery of the Sales Agreements by each of the Company and the Operating Partnership and the performance by each of the Company and the Operating Partnership of its obligations thereunder and the consummation of the transactions therein contemplated do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any contract set forth on Exhibit D attached hereto. |
Foreign Qualifications | |
ENTITY | STATE |
CBL & Associates Properties, Inc. | Delaware (State of Incorporation) |
Tennessee | |
CBL Holdings I, Inc. | Delaware (State of Incorporation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming | |
CBL Holdings II, Inc. | Delaware (State of Incorporation) |
CBL & Associates Management, Inc. | Delaware (State of Incorporation) |
Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming | |
CBL & Associates Limited Partnership | Delaware (State of creation) |
Alabama, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming |
1. | Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated November 2, 2010. |
2. | Certificate of Designation, dated October 1, 2012, relating to the 6.625% Series E Cumulative Preferred Units. |
3. | Share Ownership Agreement by and among the Company and its related parties and the Jacobs entities, dated as of January 31, 2001. |
4. | Contribution Agreement among Westfield America Limited Partnership, as Transferor, and CW Joint Venture, LLC, as Transferee, and CBL & Associates Limited Partnership, dated August 9, 2007. |
5. | Contribution Agreement among CBL & Associates Limited Partnership, as Transferor, St. Clair Square, GP, Inc. and CW Joint Venture, LLC, as Transferee, and Westfield America Limited Partnership, dated August 9, 2007. |
6. | Purchase and Sale Agreement between Westfield America Limited Partnership, as Transferor, and CBL & Associates Limited Partnership, as Transferee, dated August 9, 2007. |
Cantor Fitzgerald & Co. 499 Park Avenue New York, New York 10022 |
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
KeyBanc Capital Markets Inc. 127 Public Square Cleveland, Ohio 44114 |
RBC Capital Markets, LLC Three World Financial Center, 8th Floor 200 Vesey Street New York, New York 10281 |
Wells Fargo Securities, LLC 375 Park Avenue New York, New York 10152 |
Re: | Opinion Required by Sections 7(n) and 8(e) of the Controlled Equity OfferingSM Sales Agreements dated March 1, 2013 |
(A) | any real property and buildings held under lease by the Company and its subsidiaries, as a lessee, 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 |
(B) | the execution and delivery of each of the Sales Agreements by each of the Company and the Operating Partnership, and the performance by each of the Company and the Operating Partnership of its obligations thereunder, and the consummation of the transactions therein contemplated, do not and will not, whether with or without the giving of notice or lapse of time or both, cause a violation of, or breach or default under the terms of any of the contracts listed as Exhibits numbered 10.11.1, 10.11.2, 10.11.3, 10.11.4, 10.15.1, 10.15.2, 10.15.3, 10.20.1, 10.20.2, 10.20.3, 10.21.1, 10.21.2, 10.23.1, 10.23.2, 10.24.1 and 10.24.2, to the Company’s Annual Report on Form 10-K as filed with the Commission on March 1, 2013; and |
(C) | to the best of my knowledge and other than as set forth in the Registration Statement and 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 such Subsidiaries is the subject which, if determined adversely to the Company or any of the 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 my 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 Section 2(C), I express no opinion with respect to the Securities Act (as it relates to the Transactions) or to any state or foreign securities or Blue Sky laws. |
By: | ||
Name: Farzana K. Mitchell | ||
Title: Executive Vice President – Chief Financial Officer and Treasurer |
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