Attached files
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
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T
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ANNUAL REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the fiscal year ended December 31, 2009
Or
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o
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TRANSITION REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from ______________ to _________________
Commission
File Number 1-12494
CBL
& ASSOCIATES PROPERTIES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
(State
or other jurisdiction of incorporation or organization)
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62-1545718
(I.R.S.
Employer Identification No.)
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2030
Hamilton Place Blvd., Suite 500
Chattanooga,
TN
(Address
of principal executive office)
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37421
(Zip
Code)
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Registrant’s
telephone number, including area code: 423.855.0001
Securities
registered pursuant to Section 12(b) of the Act:
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Title
of each Class
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Name
of each exchange on which registered
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Common
Stock, $0.01 par value
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New
York Stock Exchange
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7.75%
Series C Cumulative Redeemable Preferred Stock, $0.01 par
value
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New
York Stock Exchange
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7.375%
Series D Cumulative Redeemable Preferred Stock, $0.01 par
value
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New
York Stock Exchange
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Securities
registered pursuant to Section 12(g) of the Act: None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes T No o
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes o No
T
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes T No
o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will
not be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definition of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Act. (Check
one):
| Large accelerated filer T | Accelerated filer o |
| Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act).
Yes o No T
The
aggregate market value of the 131,481,016 shares of common stock held by
non-affiliates of the registrant as of June 30, 2009 was $708,682,676, based on
the closing price of $5.39 per share on the New York Stock Exchange on June 30,
2009. (For this computation, the registrant has excluded the market value of all
shares of its common stock reported as beneficially owned by executive officers
and directors of the registrant; such exclusion shall not be deemed to
constitute an admission that any such person is an “affiliate” of the
registrant.)
As of
February 15, 2010, 137,893,850 shares of common stock were
outstanding.
DOCUMENTS
INCORPORATED BY REFERENCE
Portions
of the Registrant’s Proxy Statement for the 2010 Annual Meeting of Stockholders
are incorporated by reference in Part III.
EXPLANATORY
NOTE
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2009,
initially filed on February 22, 2010 (“Form 10-K”), is revised by this Amendment
No. 1 on Form 10-K/A to our Form 10-K (“Amendment No. 1”) to include the
separate audited financial statements of JG Gulf Coast Town Center, LLC and
Triangle Town Member, LLC, in accordance with Rule 3-09 of Regulation S-X (“Rule
3-09”), as new Exhibits 99.1 and 99.2, respectively, in Part IV, Item 15, Exhibits, Financial Statement
Schedules (“Item 15”). In accordance with Rule 3-09(b)(1), the
separate audited financial statements of JG Gulf Coast Town Center, LLC and
Triangle Town Member, LLC, which were not available prior to the filing of our
Form 10-K, are being filed as an amendment to our Form 10-K within 90 days after
the end of our fiscal year.
In
addition, this Amendment No. 1 revises Item 15 to include a replacement for
Exhibit 10.7.4, to correct a typographical error in the original, as well as new
Exhibits 31.1, 31.2, 32.1 and 32.2, certifications of the Chief Executive
Officer and Chief Financial Officer, and new Exhibits 23.2 and 23.3, consents of
Deloitte & Touche LLP.
Except as
described above, no other amendments are being made to the Form 10-K. This
Amendment No. 1 does not update or modify the disclosure contained in our Form
10-K in any way other than as required to reflect the items discussed above and
does not reflect events occurring after the February 22, 2010 filing of our Form
10-K.
1
PART
IV
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(1)
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Consolidated
Financial Statements
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Report
of Independent Registered Public Accounting Firm
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Consolidated
Balance Sheets as of December 31, 2009 and 2008
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Consolidated
Statements of Operations for the Years Ended December 31, 2009, 2008 and
2007
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Consolidated
Statements of Equity for the Years Ended December 31, 2009, 2008 and
2007
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Consolidated
Statements of Cash Flows for the Years Ended December 31, 2009, 2008 and
2007
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Notes
to Consolidated Financial Statements
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| The Consolidated Financial Statements above are incorporated by reference from the Annual Report on Form 10-K of CBL & Associates Properties, Inc. filed on February 22, 2010. | ||
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(2)
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Consolidated
Financial Statement Schedules
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Schedule
II Valuation and Qualifying Accounts
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Schedule
III Real Estate and Accumulated Depreciation
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Schedule
IV Mortgage Loans on Real Estate
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| Financial statement schedules not listed herein are either not required or are not present in amounts sufficient to require submission of the schedule or the information required to be included therein is included in our consolidated financial statements in Item 15 or are reported elsewhere. | ||
| The Consolidated Financial Statement Schedules above are incorporated by reference from the Annual Report on Form 10-K of CBL & Associates Properties, Inc. filed on February 22, 2010. | ||
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(3)
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The
Exhibit Index attached to this report is incorporated by reference into
this Item 15(a)(3).
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2
SIGNATURES
Pursuant to the requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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CBL
& ASSOCIATES PROPERTIES, INC.
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(Registrant)
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By:
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/s/ John N. Foy
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John
N. Foy
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Vice
Chairman of the Board, Chief Financial Officer, Treasurer and
Secretary
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Dated:
March 31, 2010
3
EXHIBIT INDEX
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Exhibit
Number
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Description
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3.1
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Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of
the Company, dated October 8, 2009 (cc)
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3.2
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Amended
and Restated Certificate of Incorporation of the Company, as amended
through October 8, 2009 (cc)
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3.3
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Amended
and Restated Bylaws of the Company, as amended effective November 6, 2007
(s)
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4.1
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See
Amended and Restated Certificate of Incorporation of the Company, as
amended, and Amended and Restated Bylaws of the Company relating to the
Common Stock, Exhibits 3.1, 3.2 and 3.3 above
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4.2
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Certificate
of Designations, dated June 25, 1998, relating to the 9.0% Series A
Cumulative Redeemable Preferred Stock (e)
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4.3
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Certificate
of Designation, dated April 30, 1999, relating to the Series 1999 Junior
Participating Preferred Stock (e)
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4.4
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Terms
of Series J Special Common Units of the Operating Partnership, pursuant to
Article 4.4 of the Second Amended and Restated Partnership Agreement of
the Operating Partnership (e)
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4.5
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Certificate
of Designations, dated June 11, 2002, relating to the 8.75% Series B
Cumulative Redeemable Preferred Stock (f)
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4.6
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Acknowledgement
Regarding Issuance of Partnership Interests and Assumption of Partnership
Agreement (h)
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4.7
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Certificate
of Designations, dated August 13, 2003, relating to the 7.75% Series C
Cumulative Redeemable Preferred Stock (g)
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4.8
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Certificate
of Correction of the Certificate of Designations relating to the 7.75%
Series C Cumulative Redeemable Preferred Stock (j)
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4.9
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Certificate
of Designations, dated December 10, 2004, relating to the 7.375% Series D
Cumulative Redeemable Preferred Stock (j)
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4.10
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Terms
of the Series S Special Common Units of the Operating Partnership,
pursuant to the Third Amendment to the Second Amended and Restated
Partnership Agreement of the Operating Partnership (k)
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4.11
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Terms
of the Series L Special Common Units of the Operating Partnership,
pursuant to the Fourth Amendment to the Second Amended and Restated
Partnership Agreement of the Operating Partnership (n)
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4.12
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Terms
of the Series K Special Common Units of the Operating Partnership,
pursuant to the First Amendment to the Third Amended and Restated
Partnership Agreement of the Operating Partnership
(o)
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4
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Exhibit
Number
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Description
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10.1.1
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Third
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, dated June 15, 2005 (m)
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10.1.2
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First
Amendment to Third Amended and Restated Agreement of Limited Partnership
of the Operating Partnership, dated as of November 16, 2005
(o)
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10.2
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Property
Management Agreement between the Operating Partnership and the Management
Company (a)
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10.3
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Property
Management Agreement relating to Retained Properties
(a)
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10.4
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Subscription
Agreement relating to purchase of the Common Stock and Preferred Stock of
the Management Company (a)
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10.5.1
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CBL
& Associates Properties, Inc. Amended and Restated Stock Incentive
Plan† (i)
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10.5.2
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Form
of Non-Qualified Stock Option Agreement for all participants†
(h)
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10.5.3
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Form
of Stock Restriction Agreement for restricted stock awards†
(h)
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10.5.4
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Form
of Stock Restriction agreement for restricted stock awards with annual
installment vesting† (i)
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10.5.5
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Amendment
No. 1 to CBL & Associates Properties, Inc. Amended and Restated Stock
Incentive Plan† (k)
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10.5.6
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Amendment
No. 2 to CBL & Associates Properties, Inc. Amended and Restated Stock
Incentive Plan† (k)
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10.5.7
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Form
of Stock Restriction Agreement for restricted stock awards in 2004 and
2005† (l)
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10.5.8
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Form
of Stock Restriction Agreement for restricted stock awards in 2006 and
subsequent years† (r)
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10.6
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Form
of Indemnification Agreements between the Company and the Management
Company and their officers and directors (a)
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10.7.1
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Employment
Agreement for Charles B. Lebovitz† (a)
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10.7.2
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Employment
Agreement for John N. Foy† (a)
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10.7.3
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Employment
Agreement for Stephen D. Lebovitz† (a)
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Summary
Description of CBL & Associates Properties, Inc. Director Compensation
Arrangements†
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10.7.5
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Summary
Description of November 5, 2007 Compensation Committee Action Approving
2008 Executive Base Salary Levels† (s)
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10.7.6
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Letter
Agreement, dated March 3, 2008, between the Company and Eric P. Snyder†
(v)
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5
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Exhibit
Number
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Description
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10.7.7
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Summary
Description of November 3, 2008 Compensation Committee Action Revising
2008 Executive Bonus Opportunities† (x)
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10.7.8
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Separation
and General Release Agreement, dated January 5, 2009, between the Company
and Ronald L. Fullam† (y)
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10.7.9
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Separation
and General Release Agreement, dated January 5, 2009, between the Company
and Robert S. Tingle† (y)
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10.7.10
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Summary
Description of November 2, 2009 Compensation Committee Action On 2010
Executive Base Salaries and 2009 Executive Bonus Opportunities†
(dd)
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10.7.11
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Summary
Description of the Company’s 2010 NOI Growth Incentive Plan, as approved
by the Board of Directors on December 11, 2009† (dd)
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10.8.1
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Option
Agreement relating to certain Retained Properties (a)
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10.8.2
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Option
Agreement relating to Outparcels (a)
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10.9.1
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Property
Partnership Agreement relating to Hamilton Place (a)
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10.9.2
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Property
Partnership Agreement relating to CoolSprings Galleria
(a)
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10.10.1
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Acquisition
Option Agreement relating to Hamilton Place (a)
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10.10.2
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Acquisition
Option Agreement relating to the Hamilton Place Centers
(a)
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10.11
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Second
Amended and Restated Credit Agreement by and among the Operating
Partnership and the Company, and Wells Fargo Bank, National Association,
et al., dated as of November 2, 2009 (bb)
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10.12.1
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Master
Contribution Agreement, dated as of September 25, 2000, by and among the
Company, the Operating Partnership and the Jacobs entities
(c)
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10.12.2
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Amendment
to Master Contribution Agreement, dated as of September 25, 2000, by and
among the Company, the Operating Partnership and the Jacobs entities
(p)
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10.13.1
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Share
Ownership Agreement by and among the Company and its related parties and
the Jacobs entities, dated as of January 31, 2001 (d)
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10.13.2
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Voting
and Standstill Agreement dated as of September 25, 2000
(p)
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10.13.3
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Amendment,
effective as of January 1, 2006, to Voting and Standstill Agreement dated
as of September 25, 2000 (q)
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10.14.1
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Registration
Rights Agreement by and between the Company and the Holders of SCU’s
listed on Schedule A thereto, dated as of January 31, 2001
(d)
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6
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Exhibit
Number
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Description
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10.14.2
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Registration
Rights Agreement by and between the Company and Frankel Midland Limited
Partnership, dated as of January 31, 2001 (d)
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10.14.3
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Registration
Rights Agreement by and between the Company and Hess Abroms Properties of
Huntsville, dated as of January 31, 2001 (d)
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10.14.4
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Registration
Rights Agreement by and between the Company and the Holders of Series S
Special Common Units of the Operating Partnership listed on Schedule A
thereto, dated July 28, 2004 (k)
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10.14.5
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Form
of Registration Rights Agreements between the Company and Certain Holders
of Series K Special Common Units of the Operating Partnership, dated as of
November 16, 2005 (o)
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10.15.1
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Amended
and Restated Loan Agreement between the Operating Partnership, The Lakes
Mall, LLC, Lakeshore/Sebring Limited Partnership and First Tennessee Bank
National Association, dated April 30, 2008 (w)
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10.15.2
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Amended
and Restated Loan Agreement between the Operating Partnership, The Lakes
Mall, LLC, Lakeshore/Sebring Limited Partnership and First Tennessee Bank
National Association, dated May 15, 2009 (z)
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10.16
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Amended
and Restated Limited Liability Company Agreement of JG Gulf Coast Town
Center LLC by and between JG Gulf Coast Member LLC, an Ohio limited
liability company and CBL/Gulf Coast, LLC, a Florida limited liability
company, dated April 27, 2005 (n)
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10.17.1
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Contribution
Agreement and Joint Escrow Instructions between the Company and the owners
of Oak Park Mall named therein, dated as of October 17, 2005
(o)
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10.17.2
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First
Amendment to Contribution Agreement and Joint Escrow Instructions between
the Company and the owners of Oak Park Mall named therein, dated as of
November 8, 2005 (o)
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10.17.3
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Contribution
Agreement and Joint Escrow Instructions between the Company and the owners
of Eastland Mall named therein, dated as of October 17, 2005
(o)
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10.17.4
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First
Amendment to Contribution Agreement and Joint Escrow
Instructions between the Company and the owners of Eastland Mall named
therein, dated as of November 8, 2005 (o)
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10.17.5
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Purchase
and Sale Agreement and Joint Escrow Instructions between the Company and
the owners of Hickory Point Mall named therein, dated as of October 17,
2005 (o)
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10.17.6
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Purchase
and Sale Agreement and Joint Escrow Instructions between the Company and
the owner of Eastland Medical Building, dated as of October 17, 2005
(o)
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10.17.7
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Letter
Agreement, dated as of October 17, 2005, between the Company and the other
parties to the acquisition agreements listed above for Oak Park Mall,
Eastland Mall, Hickory Point Mall and Eastland Medical Building
(o)
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10.18.1
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Master
Transaction Agreement by and among REJ Realty LLC, JG Realty Investors
Corp., JG Manager LLC, JG North Raleigh L.L.C., JG Triangle Peripheral
South LLC, and the Operating Partnership, effective October 24, 2005
(q)
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7
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Exhibit
Number
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Description
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10.18.2
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Amended
and Restated Limited Liability Company Agreement of Triangle Town Member,
LLC by and among CBL Triangle Town Member, LLC and REJ Realty LLC, JG
Realty Investors Corp. and JG Manager LLC, effective as of November 16,
2005 (q)
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10.19.1
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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 (t)
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10.19.2
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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
(t)
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10.19.3
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Purchase
and Sale Agreement between Westfield America Limited Partnership, as
Transferor, and CBL & Associates Limited Partnership, as Transferee,
dated August 9, 2007 (t)
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10.20
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Unsecured
Credit Agreement, dated November 30, 2007, by and among CBL &
Associates Limited Partnership, as Borrower, and CBL & Associates
Properties, Inc., as Parent, Wells Fargo Bank, National Association, as
administrative agent, U.S. Bank National Association, Bank of America,
N.A., and Aareal Bank AG (u)
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10.21.1
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Unsecured
Term Loan Agreement, dated April 22, 2008, by and among CBL &
Associates Limited Partnership, as Borrower, and CBL & Associates
Properties, Inc., as Parent, Wells Fargo Bank, National Association, as
Administrative Agent and Lead Arranger, Accrual Capital Corporation, as
Syndication Agent, U.S. Bank National Association and Fifth Third Bank
(w)
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10.21.2
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Joinder
in Unsecured Term Loan Agreement, dated April 30, 2008, by and among CBL
& Associates Limited Partnership, as Borrower, and CBL &
Associates Properties, Inc., as Parent, Wells Fargo Bank, National
Association, as Administrative Agent and Lead Arranger, and Raymond James
Bank FSB (w)
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10.21.3
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Joinder
in Unsecured Term Loan Agreement, dated May 7, 2008, by and among CBL
& Associates Limited Partnership, as Borrower, and CBL &
Associates Properties, Inc., as Parent, Wells Fargo Bank, National
Association, as Administrative Agent and Lead Arranger, and Regions Bank
(w)
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10.22
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Loan
Agreement by and among Meridian Mall Limited Partnership, as Borrower, CBL
& Associates Limited Partnership, as Guarantor, and CBL &
Associates Properties, Inc., as Parent, and Wells Fargo Bank, National
Association, as administrative agent, et al. (x)
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10.23
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Seventh
Amended and Restated Credit Agreement between CBL & Associates Limited
Partnership and Wells Fargo Bank, National Association, et al., dated
Septemer 28, 2009 (aa)
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12
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Computation
of Ratio of Earnings to Combined Fixed Charges and Preferred Dividends
(dd)
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14.1
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Second
Amended And Restated Code Of Business Conduct And Ethics Of CBL &
Associates Properties, Inc., CBL & Associates Management, Inc. And
Their Affiliates (s)
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21
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Subsidiaries
of the Company (dd)
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23
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Consent
of Deloitte & Touche LLP (dd)
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| 23.2 | Consent of Independent Auditors - Deloitte & Touche LLP | |
| 23.3 | Consent of Independent Auditors - Deloitte & Touche LLP |
8
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Exhibit
Number
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Description
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Certification
pursuant to Securities Exchange Act Rule 13a-14(a) by the Chief Executive
Officer, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
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Certification
pursuant to Securities Exchange Act Rule 13a-14(a) by the Chief Financial
Officer, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
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Certification
pursuant to Securities Exchange Act Rule 13a-14(b) by the Chief Executive
Officer, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
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Certification
pursuant to Securities Exchange Act Rule 13a-14(b) by the Chief Financial
Officer as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
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| 99.1 | Financial Statements of JG Gulf Coast Town Center, LLC | |
| 99.2 | Financial Statements of Triangle Town Member, LLC |
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(a)
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Incorporated
by reference to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-11 (No. 33-67372), as filed with the
Commission on January 27, 1994.*
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(b)
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Incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998.*
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(c)
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Incorporated
by reference from the Company’s Current Report on Form 8-K/A, filed on
October 27, 2000.*
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(d)
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Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on
February 6, 2001.*
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(e)
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Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2001.*
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(f)
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Incorporated
by reference from the Company’s Current Report on Form 8-K, dated June 10,
2002, filed on June 17, 2002.*
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(g)
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Incorporated
by reference from the Company’s Registration Statement on Form 8-A, filed
on August 21, 2003.*
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(h)
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Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2002.*
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(i)
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Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2003.*
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(j)
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Incorporated
by reference from the Company’s Registration Statement on Form 8-A, filed
on December 10, 2004.*
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(k)
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Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2004.*
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(l)
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Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on May
13, 2005.*
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(m)
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Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on June
21, 2005.*
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(n)
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Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2005.*
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(o)
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Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on
November 22, 2005.*
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(p)
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Incorporated
by reference from the Company’s Proxy Statement dated December 19, 2000
for the Special Meeting of Shareholders held January 19,
2001.*
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(q)
|
Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2005.*
|
|
(r)
|
Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on May
24, 2006.*
|
|
(s)
|
Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on
November 9, 2007.*
|
|
(t)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2007.*
|
|
(u)
|
Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2007.*
|
|
(v)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2008.*
|
|
(w)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2008.*
|
|
(x)
|
Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2008.*
|
|
(y)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2009.*
|
|
(z)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2009.*
|
|
(aa)
|
Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on
September 30, 2009.*
|
|
(bb)
|
Incorporated
by reference from the Company’s Current Report on Form 8-K, filed on
November 5, 2009.*
|
|
(cc)
|
Incorporated
by reference from the Company’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2009.*
|
|
(dd)
|
Incorporated
by reference from the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31,
2009.*
|
|
†
|
A
management contract or compensatory plan or arrangement required to be
filed pursuant to Item 15(b) of this
report.
|
*
Commission File No. 1-12494
10