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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: March 3, 1999
Date of earliest event reported: February 23, 1999
_______________________
BRADLEY OPERATING LIMITED PARTNERSHIP
(Exact name of Registrant as specified in its charter)
DELAWARE 0-23065 04-336041
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
40 SKOKIE BOULEVARD, NORTHBROOK, ILLINOIS 60062
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(847) 272-9800
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Item 5. Other Events.
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On February 23, 1999, Bradley Operating Limited Partnership (the "Operating
Partnership"), the entity through which Bradley Real Estate, Inc. (the
"Company"), a Maryland corporation, conducts substantially all of its business
and owns (either directly or through subsidiaries) substantially all of its
assets, completed a private placement of 2,000,000 of its 8.875% Series B
Cumulative Redeemable Perpetual Preferred Units (the "Series B Preferred Units")
to two institutional investors at a price of $25.00 per unit. The net proceeds
of approximately $49.2 million were used to repay amounts outstanding under the
Operating Partnership's unsecured credit facility. In connection with such
placement, the partnership agreement of the Operating Partnership was amended to
provide for and to describe the rights of the holders of the Series B Preferred
Units.
Distributions on the Series B Preferred Units will be cumulative from the
date of original issuance and payable quarterly on the last business day of each
March, June, September and December of each year commencing March 31, 1999, at
an annual rate of 8.875% per annum on the $25.00 original capital contribution
per unit. Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Operating Partnership, the Series B Preferred Units will be entitled
to a preferential distribution equal to the capital account attributable to such
unit (initially $25.00 per unit), plus an amount equal to all accumulated,
accrued and unpaid distributions. With respect to payment of distributions and
amounts upon liquidation, the Series B Preferred Units will rank (i) senior to
the common limited partner units and general partner units and (ii) on a parity
with the Operating Partnership's 8.4% Series A Preferred Units (the "Series A
Preferred Units").
On and after February 23, 2004, the Operating Partnership may redeem the
Series B Preferred Units at its option, in whole or in part, at any time for
cash at a redemption price equal to the redeemed holder's capital account
(initially $25.00 per unit), plus an amount equal to all accumulated, accrued
and unpaid distributions or dividends thereon to the date of redemption. In
lieu of cash, the Operating Partnership may elect to deliver shares of 8.875%
Series B Cumulative Redeemable Perpetual Preferred Stock of the Company (the
"Series B Preferred Shares") on a one-for-one basis, plus an amount equal to all
accumulated, accrued and unpaid distributions or dividends thereon to the date
of redemption. The Series B Preferred Units do not include any mandatory
redemption or sinking fund provisions.
Holders of the Series B Preferred Units have the right to exchange Series B
Preferred Units for shares of Series B Preferred Shares on a one-for-one basis.
The exchange right is exercisable, in minimum amounts of 500,000 units, at the
option of the holders of the Series B Preferred Units (i) at any time on or
after February 23, 2009, (ii) at any time if full quarterly distributions shall
not have been made for six quarters, whether or not consecutive, or (iii) upon
the occurrence of certain specified events related to the federal income tax
treatment of the Operating Partnership or the Series B Preferred Units for
federal income tax purposes.
On February 23, 1999 the Company filed Articles Supplementary to its
charter classifying and establishing the class of 2,000,000 Series B Preferred
Shares and describing such Series B Preferred Shares and the rights of the
holders thereof. The Company's Board of Directors has reserved such Series B
Preferred Shares for issuance upon exchange of Series B Preferred Units. In
general, the distribution and liquidation preferences and other rights of
holders of Series B Preferred Shares and the Company's right to redeem Series B
Preferred Shares are substantially similar to the related distribution and
liquidation preferences and other rights of holders of Series B Preferred Units
and the Operating Partnership's right to redeem Series B Preferred Units, except
as set forth below.
Neither the Series B Preferred Units nor the Series B Preferred Shares are
convertible into or exchangeable for any other securities, except that (i)
Series B Preferred Units may be exchanged for Series B Preferred Shares as
described above and (ii) Series B Preferred Shares may be exchanged
automatically into shares of Excess Stock in order to ensure that the Company
remains a qualified REIT for federal income tax purposes.
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Except as otherwise required by law, holders of the Series B Preferred
Units have only the following voting rights: so long as any Series B Preferred
Units remain outstanding, the Operating Partnership may not, without the
affirmative vote of the holders of at least two-thirds of the Series B Preferred
Units outstanding, (i) authorize or create, or increase the authorized or issued
amount of, any class or series of Operating Partnership units ranking senior to
the Series B Preferred Units, (ii) authorize or create, or increase the
authorized or issued amount of, any class or series of Operating Partnership
units ranking on parity with the Series B Preferred Units for the purposes of
issuing such units to an affiliate of the Company, unless such units are issued
under terms no more favorable to such affiliate than those that would be offered
in an arm's length transaction to an unrelated party or such units are issued to
the Company, in its capacity as general partner, in connection with the issuance
of a corresponding class or series of preferred stock to parties not affiliated
with the Company, or (iii) either (a) consolidate, merge with or into, or
transfer all or substantially all of its assets to another party, or (b) amend,
alter or repeal provisions of the Operating Partnership's partnership agreement
or the terms of the Series B Preferred Units, in each case in a transaction or
manner that would materially and adversely affect any right, preference,
privilege or voting power of the Series B Preferred Units or holders thereof.
Holders of the Series B Preferred Shares will have the same voting rights
with respect to Series B Preferred Shares as holders of Series B Preferred Units
have with respect to Series B Preferred Units, as well as the following voting
right: whenever dividends on any Series B Preferred Shares shall be in arrears
for six or more quarterly periods, whether or not consecutive, the holders of
the Series B Preferred Shares (voting separately as a class with all other
series of Preferred Shares upon which like voting rights have been conferred and
are exercisable, including the Company's 8.4% Series A Convertible Preferred
Stock) will be entitled to vote for the election of a total of two directors of
the Company until all dividends accumulated on such Series B Shares have been
fully paid or declared and a sum sufficient for the payment thereof set aside
for payment.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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The following exhibits are filed with this report.
NUMBER DESCRIPTION
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* 4.1 Amendment, dated as of February 23, 1999, to Second Restated
Agreement of Limited Partnership of Bradley Operating
Limited Partnership, designating the 8.875% Series B
Cumulative Redeemable Perpetual Preferred Units.
* 4.2 Articles Supplementary Establishing and Fixing the Rights
and Preferences of a Series of Shares of Preferred Stock for
the 8.875% Series B Cumulative Redeemable Perpetual
Preferred Stock of Bradley Real Estate, Inc.
____________________
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC., its general partner
Date: March 3, 1999 By: /s/ Thomas P. D'Arcy
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Thomas P. D'Arcy
Chairman, President and Chief Executive
Officer
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EXHIBIT 4.1
BRADLEY OPERATING LIMITED PARTNERSHIP
AMENDMENT TO SECOND RESTATED AGREEMENT OF LIMITED PARTNERSHIP RELATING TO
8.875% SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED UNITS
This Amendment to Second Restated Agreement of Limited Partnership of
Bradley Operating Limited Partnership, a Delaware limited partnership (the
"PARTNERSHIP"), dated February 23, 1999 (this "AMENDMENT") amends the Second
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Restated Agreement of Limited Partnership of the Partnership, dated September 2,
1997, as amended (the "PARTNERSHIP AGREEMENT"), by and among Bradley Real
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Estate, Inc. (the "GENERAL PARTNER") and each of the limited partners executing
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a signature page hereto (the "CONTRIBUTORS"). Capitalized terms used herein and
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not defined herein have the meanings ascribed thereto in the Partnership
Agreement. Section references are (unless otherwise specified) references to
sections in this Amendment.
WHEREAS, pursuant to Section 3.1.C of the Partnership Agreement, the
General Partner desires to cause the Partnership to issue additional Units of a
new class and series, with the designations, preferences and relative,
participating, optional or other special rights, powers and duties set forth
herein;
WHEREAS, pursuant to Section 17.1 of the Partnership Agreement, the
General Partner, without the consent of the Limited Partners, may amend the
Partnership Agreement by executing a written instrument setting forth the terms
of such amendment; and
WHEREAS, the General Partner desires by this Amendment to so amend the
Partnership Agreement as of the date first set forth above to provide for the
designation and issuance of such new class and series of Units.
NOW, THEREFORE, the Partnership Agreement is hereby amended by
establishing and fixing the rights, limitations and preferences of a new class
and series of Units as follows:
SECTION 1. DEFINITIONS. For purposes of this Amendment, (i) the term
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"PARITY PREFERRED UNITS" shall be used to refer to any class or series of
----------------------
Partnership Interests of the Partnership now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with
Series B Preferred Units (as hereinafter defined) with respect to distributions
and rights upon voluntary or involuntary liquidation, winding-up or dissolution
of the Partnership and shall include, without limitation, the Series A Preferred
Units (as defined in that certain Amendment to Second Restated Agreement of
Limited Partnership, dated August 6, 1998 (the "SERIES A PREFERRED AMENDMENT"),
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(ii) the term "PRIORITY RETURN" shall mean, an amount equal to 8.875% per annum,
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determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
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2
the extent not distributed for any given distribution period pursuant to Section
8.4 of the Partnership Agreement, of the stated value of $25.00 per Series B
Preferred Unit, commencing on the date of issuance of such Series B Preferred
Unit, (iii) the term "SUBSIDIARY" shall mean with respect to any person, any
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corporation, partnership, limited liability company, joint venture or other
entity of which a majority of (x) voting power of the voting equity securities
or (y) the outstanding equity interests, is owned, directly or indirectly, by
such person, (iv) the term "PTP" shall mean a "publicly traded partnership"
---
within the meaning of Section 7704 of the Code, (v) the term "AFFILIATE" shall
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mean, as to any Person, any Entity which, directly or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
such Person, and (vi) "Contribution Agreements" mean those certain Contribution
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Agreements, dated February 23, 1999, by and among the General Partner and the
Partnership and respectively, Belcrest Realty Corporation and Belair Real Estate
Corporation.
SECTION 2. DESIGNATION AND NUMBER. Pursuant to Section 3.1.C of the
----------------------
Partnership Agreement, a series of Units of Partnership Interests in the
Partnership designated as the "8.875% Series B Cumulative Redeemable Perpetual
Series B Preferred Units" (the "SERIES B PREFERRED UNITS") is hereby
------------------------
established. The number of Series B Preferred Units shall be 2,000,000.
SECTION 3. DISTRIBUTIONS. (a) Payment of Distributions. Subject
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to the rights of holders of Parity Preferred Units as to the payment of
distributions, pursuant to Section 8.4 of the Partnership Agreement, holders of
Series B Preferred Units shall be entitled to receive, when, as and if declared
by the Partnership acting through the General Partner, out of Operating Cash
Flow and Capital Cash Flow, cumulative preferential cash distributions at the
rate per annum of 8.875% of the original Capital Contribution per Series B
Preferred Unit. Such distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable (i) quarterly in arrears, on the
last day (or, if not a Business Day (as hereinafter defined), the next
succeeding Business Day of each of March, June, September and December of each
year commencing on March 31, 1999 and, (ii) in the event of (A) an exchange of
Series B Preferred Units into Series B Preferred Stock (as hereinafter defined),
or (B) a redemption of Series B Preferred Units, on the exchange date or
redemption date, as applicable (each a "SERIES B PREFERRED UNIT DISTRIBUTION
------------------------------------
PAYMENT DATE"). The amount of the distribution payable for any period will be
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computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed on the basis
of the actual number of days elapsed in such a 30-day month. If any date on
which distributions are to be made on the Series B Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series B Preferred Units will be
made to the holders of record of the Series B Preferred Units on the
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3
relevant record dates to be fixed by the Partnership acting through the General
Partner, which record dates shall be the same day as the record date for any
distribution payable on Junior Units (as hereinafter defined), with respect to
the same period, or, if no such distribution is payable in respect of the Junior
Units, the 20/th/ day of the calendar month in which the applicable distribution
falls or on such earlier date designated on at least 10 days' notice by the
Board of Directors of the General Partner as the record date for such
distribution that is not more than 30 nor less than 10 days prior to such Series
B Preferred Unit Distribution Payment Date (the "SERIES B PREFERRED UNIT
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PARTNERSHIP RECORD DATE").
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The term "BUSINESS DAY" shall mean each day, other than a Saturday or a
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Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) Prohibition on Distribution. No distributions on Series B Preferred
---------------------------
Units shall be authorized by the General Partner or paid or set apart for
payment by the Partnership at any such time as the terms and provisions of any
agreement of the Partnership or the General Partner, including any agreement
relating to their indebtedness, prohibits such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment or provides that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or to the
extent that such authorization or payment shall be restricted or prohibited by
law.
(c) Distributions Cumulative. Distributions on the Series B Preferred
------------------------
Units will accrue whether or not the terms and provisions of any agreement of
the Partnership, including any agreement relating to its indebtedness at any
time prohibit the current payment of distributions, whether or not the
Partnership has earnings, whether or not there are funds legally available for
the payment of such of such distributions and whether or not such distributions
are authorized. Accrued but unpaid distributions on the Series B Preferred Units
will accumulate as of the Series B Preferred Unit Distribution Payment Date on
which they first become payable. Distributions on account of arrears for any
past distribution periods may be declared and paid at any time, without
reference to a regular Series B Preferred Unit Distribution Payment Date to
holders of record of the Series B Preferred Units on the record date fixed by
the Partnership acting through the General Partner which date shall not exceed
thirty (30) days prior to the payment date. Accumulated and unpaid distributions
will not bear interest.
(d) Priority as to Distributions. (i) So long as any Series B Preferred
----------------------------
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest ranking junior as to the payment of
distributions or rights upon a voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership to the Series B Preferred Units (collectively,
"JUNIOR UNITS"), nor shall any cash or other property be set aside for or
------------
applied to the purchase, redemption or other acquisition for consideration of
any Series B Preferred Units, any Parity
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4
Preferred Units or any Junior Units, unless, in each case, all distributions
accumulated on all Series B Preferred Units and all classes and series of
outstanding Parity Preferred Units have been paid in full. The foregoing
sentence will not prohibit (a) distributions payable solely in Junior Units, (b)
the conversion of Junior Units or Parity Preferred Units into Partnership
Interests ranking junior to the Series B Preferred Units, or (c) the redemption
of Partnership Interests corresponding to any Series B Preferred Stock, Parity
Preferred Stock or Junior Stock to be purchased by the General Partner pursuant
to Article IX of the Charter) to preserve the General Partner's status as a real
estate investment trust, provided that such redemption shall be upon the same
terms as the corresponding purchase pursuant to Article IX of the Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Units, all distributions authorized and
declared on the Series B Preferred Units and all classes or series of
outstanding Parity Preferred Units shall be authorized and declared so that the
amount of distributions authorized and declared per Series B Preferred Unit and
such other classes or series of Parity Preferred Units shall in all cases bear
to each other the same ratio that accrued distributions per Series B Preferred
Unit and such other classes or series of Parity Preferred Units (which shall not
include any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Units do not
have cumulative distribution rights) bear to each other. Any distribution
payment made on the Series B Preferred Units shall first be credited against the
earliest accrued but unpaid distribution due with respect to such Series B
Preferred Units which remains payable.
(e) No Further Rights. Holders of Series B Preferred Units shall not be
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entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. ALLOCATIONS. Section 7.1 of the Partnership Agreement is
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hereby amended as follows:
To the extent permitted under Section 704(b) of the Code, solely for
the purposes of allocating Profits or Losses in any taxable year (or a portion
thereof) to the holders of Series B Preferred Units pursuant to Section 7 of the
Partnership Agreement, items of Profits or Losses, as the case may be, shall not
include Depreciation with respect to properties that are "ceiling limited" in
respect of holders of Series B Preferred Units. For purposes of the preceding
sentence, Partnership property shall be considered "ceiling limited" in respect
of a holder of Series B Preferred Units if Depreciation attributable to such
Partnership property which would otherwise be allocable to such holder, without
regard to this paragraph, exceeded depreciation determined for federal income
tax purposes attributable to such Partnership property which would otherwise be
allocable to such holder by more than 5%.
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5
SECTION 5. LIQUIDATION PROCEEDS. (a) Subject to the rights of holders
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of Parity Preferred Units with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Partnership and
subject to preferred Partnership Interests ranking senior to the Series B
Preferred Units with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, the holders of Series
B Preferred Units shall be entitled to receive out of the assets of the
Partnership legally available for distribution or the proceeds thereof, after
payment or provision for debts and other liabilities of the Partnership, but
before any payment or distributions of the assets shall be made to holders of
Junior Units, an amount equal to the sum of (i) a liquidation preference in an
amount equal to the positive Capital Account balance of the holder of the Series
B Preferred Units and (ii) to the extent properly allocable under Article 7 of
the Partnership Agreement and not previously allocated to the Capital Account
balance of the holders of the Series B Preferred Units, an amount equal to any
accumulated and unpaid distributions thereon, whether or not declared, to the
date of payment. In the event of any conflict between the provisions of this
Section 5 and Section 15.2 of the Partnership Agreement, the provisions of this
Section 5 shall control.
(b) Notice. Written notice of any such voluntary or involuntary
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liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than thirty (30) and not more than sixty
(60) days prior to the payment date stated therein, to each record holder of the
Series B Preferred Units at the respective addresses of such holders as the same
shall appear on the transfer records of the Partnership.
(c) No Further Rights. After payment of the full amount of the liquidating
-----------------
distributions to which they are entitled, the holders of Series B Preferred
Units will have no right or claim to any of the remaining assets of the
Partnership (it being understood that such holder may have additional rights or
claims to the remaining assets of the Partnership as a result of its ownership
of Units of other classes or series or its status as General Partner).
(d) Consolidation, Merger or Certain Other Transactions. The voluntary
---------------------------------------------------
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
or assets of the General Partner or the Partnership to, or the consolidation or
merger or other business combination of the Partnership or the General Partner
with or into, any corporation, trust or other entity (or of any corporation,
trust or other entity with or into the Partnership) or a statutory share
exchange of the General Partner shall not be deemed to constitute a liquidation,
dissolution or winding-up of the Partnership.
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6
SECTION 6. OPTIONAL REDEMPTION. (a) Right of Optional Redemption.
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The Series B Preferred Units may not be redeemed prior to the fifth (5/th/)
anniversary of the issuance date. On or after such date, the Partnership shall
have the right to redeem the Series B Preferred Units, in whole or in part, at
any time or from time to time, upon not less than 30 nor more than 60 days'
written notice, at a redemption price (the "SERIES B REDEMPTION PRICE"), payable
-------------------------
in cash (or such number of Series B Preferred Shares to which the holders of the
Series B Preferred Units would be entitled upon an exchange of the Series B
Preferred Units in accordance with Section 9 of this Amendment to the extent all
such redeemed Series B Preferred Units would be exchangeable for Series B
Preferred Shares pursuant to Section 9 of this Amendment), equal to the Capital
Account balance of the holder of Series B Preferred Units; provided, however,
that no redemption pursuant to this SECTION 6 will be permitted if the
Redemption Price does not equal or exceed the original Capital Contribution of
such holder plus the cumulative Priority Return, whether or not declared, to the
redemption date to the extent not previously distributed. If fewer than all of
the outstanding Series B Preferred Units are to be redeemed, the Series B
Preferred Units to be redeemed shall be selected pro rata (as nearly as
practicable without creating fractional Units).
(b) Limitation on Redemption. (i) The Redemption Price of the Series B
------------------------
Preferred Units (other than the portion thereof consisting of accumulated but
unpaid distributions) will be payable solely out of the sale proceeds of capital
stock of the General Partner, which will be contributed by the General Partner
to the Partnership as additional capital contribution, or out of the sale of
limited partner interests in the Partnership and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
Charter)), shares, depository receipts, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series B Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series B Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will be (A) faxed,
-------------------------
and (B) mailed by the Partnership, by certified mail, postage prepaid, not less
than 30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series B Preferred Units at their respective
addresses as they appear on the records of the Partnership. No failure to give
or defect in such notice shall affect the validity of the proceedings for the
redemption of any Series B Preferred Units except as to the holder to whom such
notice was defective or not given. In addition to any information required by
law, each such notice shall state: (m) the redemption date, (n) the Redemption
Price, (o) the aggregate number of Series B
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7
Preferred Units to be redeemed and if fewer than all of the outstanding Series B
Preferred Units are to be redeemed, the number of Series B Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series B
Preferred Units the total number of Series B Preferred Units held by such holder
represents) of the aggregate number of Series B Preferred Units to be redeemed,
(p) the place or places where such Series B Preferred Units are to be
surrendered for payment of the Redemption Price, (q) that distributions on the
Series B Preferred Units to be redeemed will cease to accumulate on such
redemption date and (r) that payment of the Redemption Price will be made upon
presentation and surrender of such Series B Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series B Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series B Preferred Units being
redeemed funds sufficient to pay the applicable Redemption Price and will give
irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series B Preferred Units upon surrender of the Series B Preferred
Units by such holders at the place designated in the notice of redemption. If
the Series B Preferred Units are evidenced by a certificate and if fewer than
all Series B Preferred Units evidenced by any certificate are being redeemed, a
new certificate shall be issued upon surrender of the certificate evidencing all
Series B Preferred Units, evidencing the unredeemed Series B Preferred Units
without cost to the holder thereof. On and after the date of redemption,
distributions will cease to accumulate on the Series B Preferred Units or
portions thereof called for redemption, unless the Partnership defaults in the
payment thereof. If any date fixed for redemption of Series B Preferred Units
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
is improperly withheld or refused and not paid by the Partnership, distributions
on such Series B Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
SECTION 7. VOTING RIGHTS. (a) General. Holders of the Series B
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Preferred Units will not have any voting rights or right to consent to any
matter requiring the consent or approval of the Limited Partners, except as set
forth in Section 17 of the Partnership Agreement and in this Section 7.
(b) Certain Voting Rights. So long as any Series B Preferred Units remain
---------------------
outstanding, the Partnership shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Units outstanding at
the time: (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to
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8
the Series B Preferred Units with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any Partnership
Interests into any such Partnership Interest, or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such Partnership Interests; (ii) authorize or create, or increase the authorized
or issued amount of any Parity Preferred Units or reclassify any Partnership
Interest into any such Partnership Interest or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such Partnership Interests but only to the extent such Parity Preferred Units
are issued to an Affiliate of the Partnership (unless issued to the General
Partner insofar as the issuance of such interests is in connection with the
issuance by the General Partner of corresponding preferred stock either (1) to
persons who are not Affiliates of the Partnership, or (2) to persons who are
Affiliates of the Partnership upon terms no more favorable to such Affiliates
than those it would offer in an arm's length transaction to an unrelated party);
or (iii) either (A) consolidate, merge into or with, or convey, transfer or
lease its assets substantially as an entirety to, any corporation or other
entity or (B) amend, alter or repeal the provisions of the Partnership Agreement
(including, without limitation, the first paragraph of Section 3.1(F) thereof),
whether by merger, consolidation or otherwise, in each case in a transaction or
manner that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Units or the
holders thereof; provided, however, that with respect to the occurrence of a
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merger, consolidation or a sale or lease of all of the Partnership's assets as
an entirety, so long as (l) the Partnership is the surviving entity and the
Series B Preferred Units remain outstanding with the terms thereof unchanged, or
(2) the resulting, surviving or transferee entity is a partnership, limited
liability company or other pass-through entity organized under the laws of any
state and substitutes the Series B Preferred Units for other interests in such
entity having substantially the same terms and rights as the Series B Preferred
Units, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Units; and provided
--------
further that any increase in the amount of Partnership Interests or the creation
- -------
or issuance of any other class or series of Partnership Interests or obligation
or security convertible into or evidencing the right to purchase any such
Partnership Interests, in each case ranking (y) junior to the Series B Preferred
Units with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (z) on a parity to the Series B
Preferred Units with respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up to the extent such
Partnership Interests are not issued to an Affiliate of the Partnership, (unless
issued to the General Partner to the extent the issuance of such interests is in
connection with the issuance by the General Partner of corresponding preferred
stock either (1) to persons who are not Affiliates of the Partnership or (2)
persons who are Affiliates of the Partnership upon terms no more favorable to
such Affiliates than those it would offer in an arm's length transaction to an
unrelated party), shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers of the Series B Preferred
Units. In the event of any conflict between the provisions of Section 17 of
<PAGE>
9
the Partnership Agreement and the provisions of this Section 7, the provisions
of this Section 7 shall control.
SECTION 8. TRANSFER RESTRICTIONS. The Series B Preferred Units shall
---------------------
be subject to all of the provisions of Article 12 of the Partnership Agreement.
Article 12 is hereby amended as follows:
(i) the references in 12.2.C(v) to "the Financing Partnership (or
any other entity taxed as a partnership for federal income tax purposes)" shall
be deemed to be references to "any subsidiary of the Partnership taxed as a
partnership for federal income tax purposes"); and
(ii) A new Section 12.2(D) shall be added at the end of Section 12.2
as follows:
"Notwithstanding anything to the contrary in Section 12.2(A) or
Section 12.2(B) hereof, provided that a Transfer, and, if applicable, a
Transferee, of all or any portion of the Series B Preferred Units (A) does not
violate the provisions of Section 12.2(C) hereof, (B) effects a Transfer to an
entity that is an accredited investor within the meaning of Regulation D under
the Securities Act, (C) for so long as the Partnership shall satisfy the private
placement safe harbor of Treasury Regulation Section 1.7704-1(h) (taking into
account any person treated as a partner under Treasury Regulation Section
1.7704-1(h) (3)), does not cause the total number of such persons holding Series
B Preferred Units to exceed five (5) and (D) with respect to such Transfer, the
Transferor and Transferee, as applicable, represent to the General Partner in an
ownership certificate (the "OWNERSHIP CERTIFICATE") in such form as is
---------------------
reasonably acceptable to the General Partner
(i) for so long as the Partnership is complying with the safe
harbor of Notice 88-75 (1988-2 C.B. 386) the maximum number of Look-Through
Partners (as hereinafter defined) in the Transferee;
(ii) that such Transferee would not cause the General Partner to
fail to satisfy the requirements of Section 856(a)(6) and 856(h) of the Code if
(A) all Series B Preferred Units, including those to be Transferred to such
Transferee, were exchanged for Series B Preferred Stock (as defined below), (B)
there were no outstanding stock of any other class of the General Partner and
(C) such determination was made during the last half of the General Partner's
taxable year;
(iii) for so long as the Partnership is complying with the safe
harbor of Notice 88-75 (1988-2 C.B. 386), such purported Transferee's
undertaking not to allow the number of Look-Through Partners certified in clause
(i) to increase without the General Partner's prior written consent;
<PAGE>
10
(iv) such purported Transferee's undertaking not to permit the fact
stated in clause (ii) to become untrue; and
(v) such purported Transferee's undertaking to become a Substituted
Limited Partner and to be bound by the terms of the Partnership Agreement,
the General Partner shall not withhold its consent to such Transfer to such
Transferee and, after receiving such consent, (i) such Transferee shall be
considered a substituted Limited Partner upon receipt by the General Partner of
a written agreement of the Transferee to become a Substituted Limited Partner
and to be bound by the terms of the Partnership Agreement; (ii) the Partnership
and the General Partner shall treat such Transferee as the absolute owner of the
interest transferred in all respects; and (iii) the General Partner shall not
have the right to require any such transferor to have such transferor's
transferred Partnership Interest redeemed; provided, however, that
notwithstanding the foregoing the General Partner may withhold such consent if
either (x) any purported Transferee shall fail to deliver the Ownership
Certificate or (y) at such time the Partnership is relying on the safe harbor of
Notice 88-75 (1988-2 C.B. 386) and the sum of the total number of partners on a
look-through basis, determined pursuant to Notice 88-75 (1988-2 C.B. 386)
("LOOK-THROUGH PARTNERS"), of a purported Transferee plus the total number of
----------------------
Look-Through Partners of all other holders of Series B Preferred Units would as
of the date of such Transfer exceed 200.
SECTION 9. EXCHANGE RIGHTS. (a) Right to Exchange. (i) Series B
--------------- -----------------
Preferred Units will be exchangeable, subject to Section 9(a)(v), (A) in whole
or in part at any time on or after the tenth (10/th/) anniversary of the date of
issuance, at the option of the holders thereof, for authorized but previously
unissued shares of 8.875% Series B Cumulative Redeemable Preferred Stock of the
General Partner (the "SERIES B PREFERRED STOCK") at an exchange rate of one
------------------------
share of Series B Preferred Stock for one Series B Preferred Unit, subject to
adjustment as described below (the "SERIES B EXCHANGE PRICE"); (B) at any time,
-----------------------
in whole or in part, at the option of the holders of Series B Preferred Units
for Series A Preferred Stock if (y) at any time full distributions shall not
have been timely made on any Series B Preferred Unit with respect to six (6)
prior quarterly distribution periods, whether or not consecutive, provided,
however, that a distribution in respect of Series B Preferred Units shall be
considered timely made if made within two (2) Business Days after the applicable
Series B Preferred Unit Distribution Payment Date if at the time of such late
payment there shall not be any prior quarterly distribution periods in respect
of which full distributions were not timely made or (z) upon receipt by a holder
or holders of Series B Preferred Units of (1) notice from the General Partner
that the General Partner has taken the position that the Partnership is, or upon
the occurrence of a defined event in the immediate future will be, a PTP and (2)
an opinion rendered by an outside nationally recognized independent counsel
familiar with such matters addressed to a holder or holders of Series B
Preferred Units, that the Partnership is or likely is, or upon the occurrence of
a defined event in the immediate future will be or likely will be, a PTP; (C) in
whole or in part, at the option any holder prior to the tenth (10/th/)
anniversary of the issuance date and after the third
<PAGE>
11
anniversary thereof if such holder of Series B Preferred Units shall deliver to
the General Partner either (i) a private ruling letter addressed to such holder
of Series B Preferred Units or (ii) an opinion of independent counsel reasonably
acceptable to the General Partner based on the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling, in either case to
the effect that an exchange of the Series B Preferred Units at such earlier time
would not cause the Series B Preferred Units to be considered "stock and
securities" within the meaning of section 351(e) of the Internal Revenue Code of
1986, as amended (the "CODE") for purposes of determining whether the holder of
----
such Series B Preferred Units is an "investment company" under section 721(b) of
the Code if an exchange is permitted at such earlier date; and (D) in whole but
not in part (regardless of whether held by Contributors) for Series B Preferred
Stock (but only if the exchange in whole may be accomplished consistently with
the ownership limitations set forth under the Article IX of the Charter of the
General Partner as supplemented by Section 5(e) of the Articles Supplementary of
the General Partner setting forth the terms of the Series B Preferred Stock (the
"SERIES B ARTICLES"), taking into account exceptions thereto and the provisions
-----------------
of Section 9(a)(v) below) if at any time, (i) the Partnership reasonably
determines that the assets and income of the Partnership for a taxable year
after 1999 would not satisfy the income and assets tests of Section 856 of the
Code for such taxable year if the Partnership were a real estate investment
trust within the meaning of the Code or (ii) any holder of Series B Preferred
Units shall deliver to the Partnership and the Company an opinion of independent
counsel based upon information referred to in paragraph 4(f)(iii) of the
Contribution Agreements or information contained in the Company publicly filed
documents and which is acceptable to the Company in its reasonable discretion to
the effect that, based on the assets and income of the Partnership for a taxable
year after 1999, the Partnership would not satisfy the income and assets tests
of Section 856 of the Code for such taxable year if the Partnership were a real
estate investment trust within the meaning of the Code and that such failure
would create a meaningful risk that a holder of the Series B Preferred Units
would fail to maintain qualification as a real estate investment trust.
(ii) Notwithstanding anything to the contrary set forth in SECTION
9(A)(I), if an Exchange Notice (as hereinafter defined) has been delivered to
the General Partner, then the General Partner may, at its option, elect to
redeem or cause the Partnership to redeem all or a portion of the outstanding
Series B Preferred Units for cash in an amount equal to the original Capital
Contribution per Series B Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. The General Partner may
exercise its option to redeem the Series B Preferred Units for cash pursuant to
this SECTION 9(A)(II) by giving each holder of record of Series B Preferred
Units notice of its election to redeem for cash, within ten (10) Business Days
after receipt of the Exchange Notice, by (m) fax, and (n) registered mail,
postage paid, at the address of each holder as it may appear on the records of
the Partnership stating (A) the redemption date, which shall be no later than
sixty (60) days following the receipt of the Exchange Notice, (B) the redemption
price, (C) the place or places where the Series B Preferred Units are to be
surrendered for payment of the redemption price, (D) that distributions on the
Series B Preferred Units will cease to accrue on such redemption date; (E) that
payment of the redemption price will
<PAGE>
12
be made upon presentation and surrender of the Series B Preferred Units and (F)
the aggregate number of Series B Preferred Units to be redeemed, and if fewer
than all of the outstanding Series B Preferred Units are to be redeemed, the
number of Series B Preferred Units to be redeemed held by such holder, which
number shall equal such holder's pro-rata share (based on the percentage of the
aggregate number of outstanding Series B Preferred Units the total number of
Series B Preferred Units held by such holder represents) of the aggregate number
of Series B Preferred Units being redeemed.
(iii) In the event an exchange of all or a portion of Series B
Preferred Units pursuant to SECTION 9(A)(I) would violate the provisions on
ownership limitation of the General Partner set forth in Article IX of the
Charter of the General Partner as supplemented by Section 5(e) of the Series B
Articles with respect to the Series B Preferred Stock, the General Partner shall
give written notice thereof to each holder of record of Series B Preferred
Units, within ten (10) Business Days following receipt of the Exchange Notice,
by (m) fax, and (n) registered mail, postage prepaid, at the address of each
such holder set forth in the records of the Partnership. In such event, each
holder of Series B Preferred Units shall be entitled to exchange, pursuant to
the provision of SECTION 9(B) a number of Series B Preferred Units which would
comply with the provisions on the ownership limitation of the General Partner
set forth in such Article IX of the Charter of the General Partner as
supplemented by Section 5(e) of the Series B Articles (taking into account any
waiver granted pursuant to the provisions of subsection (v) below) and any
Series B Preferred Units not so exchanged (the "EXCESS UNITS") shall, if the
------------
same are not the result of an exchange permitted solely by virtue of the
exchange rights set forth in Sections 9(a)(i)(A), 9(a)(i)(B)(z) (but only to the
extent the Partnership has become a PTP and there has been a breach by the
holders of the Series B Preferred Units of their obligations under Section 8 of
this Amendment) or 9(a)(i)(C), be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Excess Unit, plus any
accrued and unpaid distributions thereon, whether or not declared, to the date
of redemption. The written notice of the General Partner shall state (A) the
number of Excess Units held by such holder, (B) the redemption price of the
Excess Units, (C) the date on which such Excess Units shall be redeemed, which
date shall be no later than sixty (60) days following the receipt of the
Exchange Notice, (D) the place or places where such Excess Units are to be
surrendered for payment of the Redemption Price, (E) that distributions on the
Excess Units will cease to accrue on such redemption date, and (F) that payment
of the redemption price will be made upon presentation and surrender of such
Excess Units.
(iv) The redemption of Series B Preferred Units described in SECTION
9(A)(II) and (III) shall be subject to the provisions of SECTION 6(B)(I) and
SECTION 6(C)(II); provided, however, that the term "redemption price" in such
Section shall be read to mean the original Capital Contribution per Series B
Preferred Unit being redeemed plus all accrued and unpaid distributions to the
redemption date.
<PAGE>
13
(v) Notwithstanding anything to the contrary set forth hereinabove,
(A) no Series B Preferred Units will be exchangeable hereunder for Series B
Preferred Stock to the extent such exchange of all such Series B Preferred Units
tendered for exchange for Series B Preferred Stock would cause such Holder of
such Series B Preferred Units, after giving effect to such exchange, to violate
the limitations set forth in Section 5(e) of the Series B Articles; provided,
however, that the General Partner will waive such limitations if (i) such Holder
demonstrates to the General Partner's reasonable satisfaction that the exchange
of such Series B Preferred Units would not cause the General Partner to fail to
satisfy the requirements of Section 856(a)(6) and 856(h) of the Code assuming
(a) that there were no outstanding stock of any other class of the General
Partner and (b) such determination were made during the last half of the General
Partner's taxable year and (ii) such waiver and exchange does not jeopardize the
REIT status of the General Partner (including, but not limited to, by taking
into account all beneficial and constructive ownership in the General Partner of
such Holder) or cause it to incur income which would fail to qualify as rents
from real property pursuant to 856(d)(2)(B) of the Code and is not inconsistent
with its fiduciary duties to all of its shareholders and the Limited Partners,
including the holders of the Series B Preferred Units and Series B Preferred
Stock and (B) at no time will fewer than 500,000 Series B Preferred Units be
exchangeable, unless the total number of outstanding Series B Preferred Units
shall be less than 500,000 at such time, in which case no fewer than all such
outstanding Series B Preferred Units shall be exchangeable, subject, in any
event, to the provisions in the foregoing clause (A).
(b) Procedure for Exchange. (i) Any exchange shall be exercised pursuant
----------------------
to a notice of exchange (the "EXCHANGE NOTICE") delivered to the General Partner
---------------
by the holder who is exercising such exchange right, by (a) fax and (b) by
certified mail postage prepaid. Except as otherwise provided in Sections
9(a)(ii) and 9(a)(iii), the General Partner and the Partnership shall effect any
exchange of Series B Preferred Units by delivering to each holder of record of
Series B Preferred Units, within ten (10) Business Days following receipt of the
Exchange Notice, (1) certificates representing the Series B Preferred Stock
being issued in exchange for the Series B Preferred Units of such holder being
exchanged and (2) a written notice stating (A) the exchange date, which may be
the date of such written notice or any other date which is not later than
fifteen (15) Business Days following the receipt of the Exchange Notice, (B) the
Exchange Price, and (C) that distributions on the Series B Preferred Units will
cease to accrue on such exchange date. As a condition to the exchange, the
General Partner may require the holders of Series B Preferred Units to make such
representations as may be reasonably necessary for the General Partner to
establish that the issuance of Series B Preferred Stock pursuant to the exchange
shall not be required to be registered under the Securities Act of 1933, as
amended, or any state securities laws. Any Series B Preferred Stock issued
pursuant to this SECTION 9 shall be delivered as shares which are duly
authorized, validly issued, fully paid and nonassessable, free of pledge, lien,
encumbrance or restriction other than those provided in the Charter, the Bylaws
of the General Partner, the Securities Act of 1933, as amended and relevant
state securities or blue sky laws or created by the exchanging holder of Series
B Preferred Units. Each Series B Preferred Unit exchanged hereunder for a share
of Series B Preferred Stock shall be transferred to and acquired
<PAGE>
14
by the General Partner and shall not be canceled or redeemed while such share of
Series B Preferred Stock is outstanding.
The certificates representing the Series B Preferred Shares issued
upon exchange of the Series B Preferred Units shall contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") OR (B) IF THE CORPORATION HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE
HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER
EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS
THEREUNDER
(ii) In the event of an exchange of Series B Preferred Units for
shares of Series B Preferred Stock, an amount equal to the accrued and unpaid
distributions, whether or not declared, to the date of exchange on any Series B
Preferred Units tendered for exchange shall (a) accrue on the shares of the
Series B Preferred Stock into which such Series B Preferred Units are exchanged,
and (b) continue to accrue on such Series B Preferred Units, which shall remain
outstanding following such exchange, with the General Partner as the holder of
such Series B Preferred Units. Notwithstanding anything to the contrary set
forth herein, in no event shall a holder of a Series B Preferred Unit that was
validly exchanged into Series B Preferred Stock pursuant to this section (other
than the General Partner now holding such Series B Preferred Unit), receive a
distribution out of Operating Cash Flow or Capital Cash Flow of the Partnership,
if such holder, after exchange, is entitled to receive a distribution out of
Operating Cash Flow or Capital Cash Flow with respect to the share of Series B
Preferred Stock for which such Series B Preferred Unit was exchanged or
redeemed.
(iii) Fractional shares of Series B Preferred Stock are not to be
issued upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the Series B Preferred Stock on
the day prior to the exchange date as determined in good faith by the Board of
Directors of the General Partner.
<PAGE>
15
(c) Adjustment of Exchange Price. (i) The Exchange Price is subject to
----------------------------
adjustment upon certain events, including, (a) subdivisions, combinations and
reclassification of the Series B Preferred Stock, and (b) distributions to all
holders of Series B Preferred Stock of evidences of indebtedness of the General
Partner or assets (including securities, but excluding dividends and
distributions paid in cash out of equity applicable to Series B Preferred
Stock).
(ii) In case the General Partner shall be a party to any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange, tender offer for all or substantially all of the General Partner's
capital stock or sale of all or substantially all of the General Partner's
assets), in each case as a result of which the Series B Preferred Stock will be
converted into the right to receive shares of capital stock, other securities or
other property (including cash or any combination thereof), each Series B
Preferred Unit will thereafter be exchangeable into the kind and amount of
shares of capital stock and other securities and property receivable (including
cash or any combination thereof) upon the consummation of such transaction by a
holder of that number of shares of Series B Preferred Stock or fraction thereof
into which one Series B Preferred Unit was exchangeable immediately prior to
such transaction. The General Partner may not become a party to any such
transaction unless the terms thereof are consistent with the foregoing. In the
event of any conflict between the provisions of this Section 9(c)(ii) and
Section 17.2 of the Partnership Agreement, the provisions of this Section
9(c)(ii) shall control.
SECTION 10. NO CONVERSION RIGHTS. The holders of the Series B
--------------------
Preferred Units shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Partnership.
SECTION 11. NO SINKING FUND. No sinking fund shall be established
---------------
for the retirement or redemption of Series B Preferred Units.
SECTION 12. EXHIBIT A TO PARTNERSHIP AGREEMENT. In order to duly
----------------------------------
reflect the issuance of the Series B Preferred Units provided for herein, the
Partnership Agreement is hereby further amended pursuant to Section 12.3 thereof
by deleting Exhibit A thereto and replacing Exhibit A attached hereto therefor.
--------- ---------
SECTION 13. SPECIAL DISTRIBUTION AND ALLOCATION FOR CERTAIN PROPERTY.
--------------------------------------------------------
Nothing to the contrary contained in Section 8.9 of the Partnership Agreement
shall limit any of the rights or obligations set forth in this Amendment.
SECTION 14. NO PREEMPTIVE OR OTHER RIGHTS. The holder of Series B
-----------------------------
Preferred Units shall have no preemptive rights, including preemptive rights
with respect to any Units or other Partnership Interest of the Partnership
convertible into or carrying rights or options to purchase any such Series B
Preferred Units.
<PAGE>
16
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
----------------------------
Name: Thomas P. D'Arcy
Title: President and Chief Executive
Officer
<PAGE>
EXHIBIT 4.2
BRADLEY REAL ESTATE, INC.
ARTICLES SUPPLEMENTARY
2,000,000 SHARES
8.875% SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED STOCK
Bradley Real Estate, Inc., a Maryland corporation (the "CORPORATION"),
-----------
hereby certifies to the State Department of Assessments and Taxation of Maryland
(the "DEPARTMENT") that:
----------
FIRST: Pursuant to the authority expressly vested in the Board of
-----
Directors of the Corporation by Article VII of the Articles of Amendment and
Restatement of the Corporation filed with the Department on October 7, 1994 (the
"CHARTER") and Section 2-208(a) of the Maryland General Corporation Law (the
-------
"MGCL"), the Board of Directors of the Corporation (the "BOARD OF DIRECTORS"),
---- ------------------
by resolutions duly adopted on February 22, 1999 has classified 2,000,000 shares
of the authorized but unissued Preferred Stock par value $.01 per share
("PREFERRED STOCK") as a separate class of Preferred Stock, authorized the
----------------
issuance of a maximum of 2,000,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock;
designated the aforesaid class of Preferred Stock as the "8.875% Series B
Cumulative Redeemable Perpetual Preferred Stock," with the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions of such 8.875% Series B Cumulative Redeemable Perpetual Preferred
Stock and authorized the issuance of up to 2,000,000 shares of 8.875% Series B
Cumulative Redeemable Perpetual Preferred Stock.
SECOND: The class of Preferred Stock of the Corporation created by the
------
resolutions duly adopted by the Board of Directors of the Corporation and
referred to in Article FIRST of these Articles Supplementary shall have the
-----
following designation, number of shares, preferences and other rights, voting
powers, restrictions and limitation as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions:
SECTION 1. DESIGNATION AND NUMBER. A class of Preferred Stock,
----------------------
designated the "8.875% Series B Cumulative Redeemable Perpetual Preferred Stock"
(the "SERIES B PREFERRED STOCK") is hereby established. The number of shares of
------------------------
Series B Preferred Stock shall be 2,000,000.
SECTION 2. RANK. The Series B Preferred Stock will, with respect to
----
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of
<PAGE>
the Corporation, or both, rank senior to all classes or series of Common Stock
(as defined in the Charter) and to all classes or series of equity securities of
the Corporation now or hereafter authorized, issued or outstanding, other than
any class or series of equity securities of the Corporation expressly designated
as ranking on a parity with or senior to the Series B Preferred Stock as to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation. For purposes of these Articles Supplementary,
the term "PARITY PREFERRED STOCK" shall be used to refer to any class or series
----------------------
of equity securities of the Corporation now or hereafter authorized, issued or
outstanding expressly designated by the Corporation to rank on a parity with
Series B Preferred Stock with respect to distributions and rights upon voluntary
or involuntary liquidation, winding-up or dissolution of the Corporation,
including, without limitation, that certain "8.4% Series A Convertible Preferred
Stock" of the Corporation, authorized pursuant to Articles Supplementary filed
with the Department on August 6, 1998. The term "equity securities" does not
include convertible debt securities, which will rank senior to the Series B
Preferred Stock prior to conversion. References herein to "distributions" shall
be read to include, as appropriate and without limitation, dividends.
SECTION 3. DISTRIBUTIONS. (a) Payment of Distributions. Subject to
------------- ------------------------
the rights of holders of Parity Preferred Stock and holders of equity securities
ranking senior to the Series B Preferred Stock, holders of Series B Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors of the Corporation, out of funds legally available for the payment of
distributions, cumulative preferential cash distributions at the rate per annum
of 8.875% of the $25.00 liquidation preference per share of Series B Preferred
Stock. Such distributions shall be cumulative, shall accrue from the original
date of issuance and will be payable (A) quarterly in arrears, on the last day
(or, if not a Business Day (as hereinafter defined), the next succeeding
Business Day) of each of March, June, September and December of each year
commencing on the first of such dates to occur after the original date of
issuance and, (B) in the event of a redemption, on the redemption date (each a
"PREFERRED STOCK DISTRIBUTION PAYMENT DATE"). The amount of the distribution
-----------------------------------------
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months and for any period shorter than a full quarterly period for which
distributions are computed, the amount of the distribution payable will be
computed on the basis of the actual number of days elapsed in such a 30-day
month. If any date on which distributions are to be made on the Series B
Preferred Stock is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series B Preferred Stock will be made to the holders of
record of the Series B Preferred Stock on the relevant record dates to be fixed
by the Board of Directors of the Corporation, which record dates shall be the
same day as the record date for any dividend payable on the Common Stock (as
defined in the Charter) with respect to the same period or, if no such Common
Stock dividend is payable, then such record date shall be the 20/th/ day of the
calendar month in which the applicable distribution falls or on such earlier
date designated on at least 10 days' notice by the Board of Directors of the
Corporation as the record date for such distribution that is not more than 30
nor less than 10 days
2
<PAGE>
prior to such Preferred Stock Distribution Payment Date (each a "DISTRIBUTION
------------
RECORD DATE"). Notwithstanding anything to the contrary set forth herein, each
- -----------
share of Series B Preferred Stock shall also continue to accrue all accrued and
unpaid distributions, whether or not declared, up to the exchange date on any
Series B Preferred Unit (as defined in the Second Restated Agreement of Limited
Partnership Agreement of Bradley Operating Limited Partnership, as amended
through the date hereof (the "PARTNERSHIP AGREEMENT")) validly exchanged into
---------------------
such share of Series B Preferred Stock in accordance with the provisions of such
Partnership Agreement.
The term "BUSINESS DAY" shall mean each day, other than a Saturday or
------------
Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) No dividends on shares of Series B Preferred Stock shall be
authorized by the Board of Directors of the Corporation or paid or set apart for
payment by the Corporation at any such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for payment
or provides that such authorization, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or to the extent that such
authorization or payment shall be restricted or prohibited by law. In
determining whether a distribution (other than upon voluntary liquidation), by
dividend, redemption or other acquisition of shares of stock of the Corporation
or otherwise, is permitted under the MGCL, amounts that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of holder of shares of Series B Preferred
Stock will not be added to the Corporation's total liabilities.
(b) Distributions Cumulative. Notwithstanding the foregoing,
------------------------
distributions on the Series B Preferred Stock will accrue whether or not the
terms and provisions of any agreement of the Corporation, including any
agreement relating to its indebtedness at any time prohibit the current payment
of distributions, whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such distributions and
whether or not such distributions are authorized or declared. Accrued but
unpaid distributions on the Series B Preferred Stock will accumulate as of the
Preferred Stock Distribution Payment Date on which they first become payable.
Distributions on account of arrears for any past distribution periods may be
declared and paid at any time, without reference to a regular Preferred Stock
Distribution Payment Date to holders of record of the Series B Preferred Stock
on the record date fixed by the Board of Directors which date shall not exceed
30 days prior to the payment date. Accumulated and unpaid distributions will not
bear interest.
(c) Priority as to Distributions. (i) So long as any Series B
----------------------------
Preferred Stock is outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Common Stock or any class or series of other stock of the
Corporation ranking junior as to the payment of distributions or rights upon
voluntary or involuntary dissolution, liquidation or winding up of the
Partnership to the Series B Preferred Stock (such Common Stock or other junior
stock, collectively, "JUNIOR
------
3
<PAGE>
STOCK"), nor shall any cash or other property be set aside for or applied to the
- -----
purchase, redemption or other acquisition for consideration of any Series B
Preferred Stock, any Parity Preferred Stock or any Junior Stock, unless, in each
case, all distributions accumulated on all Series B Preferred Stock and all
classes and series of outstanding Parity Preferred Stock have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable solely in
Junior Stock, (ii) the conversion of Series B Preferred Stock, Junior Stock or
Parity Preferred Stock into stock of the Corporation ranking junior to the
Series B Preferred Stock as to distributions, and (iii) purchase by the
Corporation of such Series B Preferred Stock, Parity Preferred Stock or Junior
Stock pursuant to Article IX of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a
sum sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Stock, all distributions authorized and
declared on the Series B Preferred Stock and all classes or series of
outstanding Parity Preferred Stock with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per share of Series B Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the same ratio
that accrued distributions per share on the Series B Preferred Stock and such
other classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such class or series of Parity Preferred Stock do not have cumulative
distribution rights) bear to each other. Any distribution payment made on the
Series B Preferred Stock shall be credited against the earliest accrued but
unpaid distribution due with respect to such Series B Preferred Stock which
remains payable.
(e) No Further Rights. Holders of Series B Preferred Stock shall not
-----------------
be entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. LIQUIDATION PREFERENCE. (a) Payment of Liquidating
---------------------- ----------------------
Distributions. Subject to the rights of holders of Parity Preferred Stock with
- -------------
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation and subject to equity securities ranking senior to
the Series B Preferred Stock with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series B Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common Stock or any other class or series of shares of the
Corporation that ranks junior to the Series B Preferred Stock as to rights upon
liquidation, dissolution or winding-up of the Corporation, an amount equal to
the sum of (i) a liquidation preference of $25.00 per share of Series B
Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series
4
<PAGE>
B Preferred Stock and any Parity Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Corporation, all payments of liquidating
distributions on the Series B Preferred Stock and such Parity Preferred Stock
shall be made so that the payments on the Series B Preferred Stock and such
Parity Preferred Stock shall in all cases bear to each other the same ratio that
the aggregate amounts to which such holder of the Series B Preferred Stock and
such other Parity Preferred Stock (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) would otherwise be
respectively entitled upon liquidation, dissolution or winding-up of the
Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
------
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series B
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
-----------------
liquidating distributions to which they are entitled, the holders of Series B
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
---------------------------------------------------
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) or a statutory share exchange shall not be deemed to constitute
a liquidation, dissolution or winding-up of the Corporation.
SECTION 5. OPTIONAL REDEMPTION. (a) Right of Optional Redemption.
------------------- ----------------------------
The Series B Preferred Stock may not, subject to Article IX of the Charter and
Section 5(e) hereof, be redeemed prior to February 23, 2004. On or after such
date, the Corporation shall have the right to redeem the Series B Preferred
Stock, in whole or in part, at any time or from time to time, upon not less than
30 nor more than 60 days' written notice, at a redemption price, payable in
cash, equal to $25.00 per share of Series B Preferred Stock plus accumulated and
unpaid distributions, whether or nor declared, to the date of redemption. If
fewer than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the shares of Series B Preferred Stock to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
(b) Limitation on Redemption. (i) The redemption price of the Series
------------------------
B Preferred Stock (other than the portion thereof consisting of accumulated but
unpaid distributions and other than for redemptions pursuant to Article IX of
the Charter and Section 5(e) hereof) will
5
<PAGE>
be payable solely out of the sale proceeds of capital stock of the Corporation
and from no other source. For purposes of the preceding sentence, "capital
stock" means any equity securities (including Common Stock and Preferred Stock),
shares, depositary receipts, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities) or options to purchase any of the foregoing.
(ii) Subject to Article IX of the Charter and Section 5(e)
hereof, the Corporation may not redeem fewer than all of the outstanding shares
of Series B Preferred Stock unless all accumulated and unpaid distributions have
been paid on all outstanding Series B Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will be (i)
-------------------------
faxed, and (ii) mailed by the Corporation, postage prepaid, not less than 30 nor
more than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series B Preferred Stock to be redeemed at their
respective addresses as they appear on the transfer records of the Corporation.
No failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series B Preferred Stock except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange upon
which the Series B Preferred Stock may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the redemption price,
(iii) the number of shares of Series B Preferred Stock to be redeemed, (iv) the
place or places where such shares of Series B Preferred Stock are to be
surrendered for payment of the redemption price, (v) that distributions on the
Series B Preferred Stock to be redeemed will cease to accumulate on such
redemption date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation and
surrender of such Series B Preferred Stock. If fewer than all of the shares of
Series B Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series B
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in respect
of Series B Preferred Stock (which notice will be irrevocable) then, by 12:00
noon, New York City time, on the redemption date, the Corporation will deposit
irrevocably in trust for the benefit of the Series B Preferred Stock being
redeemed funds sufficient to pay the applicable redemption price, plus any
accumulated and unpaid distributions, whether or not declared, if any, on such
shares to the date fixed for redemption, without interest, and will give
irrevocable instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the holders of
the Series B Preferred Stock upon surrender of the certificate evidencing the
Series B Preferred Stock by such holders at the place designated in the notice
of redemption. If fewer than all Series B Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series B Preferred Stock, evidencing the
unredeemed Series B Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
6
<PAGE>
Series B Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series B Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series B Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series B Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series B Preferred Stock that shall
------------------------
at any time have been redeemed shall after such redemption, have the status of
authorized but unissued Preferred Stock, without designation as to class or
series until such shares are once more designated as part of a particular class
or series by the Board of Directors.
(e) Excess Share Provisions. (i) The Series B Preferred Stock is
-----------------------
subject to the provisions of Article IX of the Charter, including, without
limitation, the provision for the redemption of Excess Stock as supplemented as
provided in this Section 5(e). In addition to the redemption rights set forth in
Article IX of the Charter, shares of Excess Stock issued upon exchange of shares
of Series B Preferred Stock pursuant to such Article may be redeemed, in whole
or in part, at any time when outstanding Series B Preferred Stock is being
redeemed, for cash at a redemption price of $25.00 per share, plus all accrued
and unpaid dividends on the shares of Series B Preferred Stock which were
exchanged for such Excess Stock, through the date of such exchange, without
interest. If the Corporation elects to redeem shares of Excess Stock pursuant to
the redemption right set forth in the preceding sentence, such shares shall be
redeemed in such proportion and in accordance with such procedures as Series B
Preferred Stock is being redeemed.
(ii) No person may directly or indirectly own a number of
shares of Series B Preferred Stock whose value is in excess of 9.8% of the
aggregate value of all outstanding stock of the Corporation. For purposes of
determining ownership in this Section 5(e)(ii), a person shall be deemed to own
any shares (a) beneficially owned by such person pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended or (b) constructively owned by
such person after applying the rules of Section 544 of the Code as modified in
the case of a real estate instrument trust, by Section 856(h) of the Code.
(iii) For purposes of applying the Ownership Limit contained
in Section 9.2 of the Charter to holders of Common Stock of the Corporation,
shares of Series B Preferred Stock shall be deemed to have no value, the effect
of this provision being that the
7
<PAGE>
Ownership Limit with respect to Common Stock shall be 9.8% of the number of
outstanding shares of Common Stock.
SECTION 6. VOTING RIGHTS. (a) General. Holders of the Series B
------------- -------
Preferred Stock will not have any voting rights, except as set forth below.
(b) Right to Elect Directors. If six quarterly dividends (whether or
------------------------
not consecutive) payable on shares of Series B Preferred Stock or on any class
or series of Parity Preferred Stock is in arrears (a "PREFERRED DISTRIBUTION
----------------------
DEFAULT"), the number of directors then constituting the Board of Directors of
- -------
the Corporation will be automatically increased by two, and the holders of the
shares of Series B Preferred Stock, voting together as a single class with the
holders of shares of any other class or series of Parity Preferred Stock
entitled to such voting rights (the Series B Preferred Stock and any such other
class or series, the "VOTING PREFERRED STOCK"), will have the right to elect at
----------------------
any annual meeting of stockholders or a properly called special meeting of the
holders of Voting Preferred Stock two additional directors who are nominees of
any holder of Voting Preferred Stock to serve on the Corporation's Board of
Directors until all such accrued but unpaid dividends have been authorized and
paid or irrevocably set aside in trust for payment. At any such special meeting,
all of the holders of the Voting Preferred Stock, by plurality vote, voting
together as a single class without regard to series, will be entitled to elect
two directors on the basis of one vote per $25.00 of liquidation preference to
which such Parity Securities are entitled by their terms (excluding amounts in
respect of accumulated and unpaid dividends) and not cumulatively. At such time
as all such accrued but unpaid dividends have been authorized and paid or
irrevocably set aside in trust for payment, the right of the holders of the
Voting Preferred Stock to elect such additional two directors shall cease (but
subject to revesting in the event of each and every Preferred Distribution
Default), and the terms of office of all persons elected as directors by the
holders of the Voting Preferred Stock shall forthwith terminate and the number
of the Board of Directors shall automatically be reduced accordingly. At any
time after such voting power shall have been so vested in the holders of shares
of Voting Preferred Stock and prior to the termination of such voting power, the
Secretary of the Corporation may, and upon the written request of any holder of
Series B Preferred Stock (addressed to the Secretary at the principal office of
the Corporation) shall, call a special meeting of the holders of the Voting
Preferred Stock for the election of the two directors to be elected by them as
herein provided; such call to be made by notice similar to that provided in the
Bylaws of the Corporation for a special meeting of the stockholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt of
any such request, then any holder of shares of Voting Preferred Stock may call
such meeting, upon the notice above provided, and for that purpose shall have
access to the stock books of the Corporation. The directors elected at any such
special meeting shall serve until the next annual meeting of the stockholders or
special meeting held in lieu thereof and until their respective successors are
duly elected and qualified, if such directorship shall not have previously
terminated as above provided. If any vacancy shall occur among the directors
elected by the holders of the Voting Preferred Stock, a successor shall be
elected by the Board of Directors upon the nomination of the then-remaining
director elected by the holders of the Voting Preferred Stock or (if there is no
such remaining director or
8
<PAGE>
successor thereto, by the holders of the Voting Preferred Stock) the successor
of such remaining director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof and until their successor
is duly elected and qualified if such directorship shall not have previously
terminated as provided above.
(c) Certain Voting Rights. So long as any Series B Preferred Stock
---------------------
remains outstanding, the Corporation shall not, without the affirmative vote of
the holders of at least two-thirds of the Series B Preferred Stock outstanding
at the time (i) designate or create, or increase the authorized or issued amount
of, any class or series of shares ranking prior to the Series B Preferred Stock
with respect to payment of distributions or rights upon liquidation, dissolution
or winding-up or reclassify any authorized shares of the Corporation into any
such shares, or create, authorize or issue any obligations or security
convertible into or evidencing the right to purchase any such shares, (ii)
designate or create, or increase the authorized or issued amount of, any Parity
Preferred Stock or reclassify any authorized shares of the Corporation into any
such shares, or create, authorize or issue any obligations or security
convertible into or evidencing the right to purchase any such shares, but only
to the extent such Parity Preferred Stock is issued to an affiliate of the
Corporation upon terms more favorable to such affiliate than those it would
offer in an arm's length transaction to an unrelated party, or (iii) either (A)
consolidate, merge into or with, or convey, transfer or lease its assets
substantially as an entirety, to any corporation or other entity, or (B) amend,
alter or repeal the provisions of the Corporation's Charter (including these
Articles Supplementary) or By-laws, whether by merger, consolidation or
otherwise, in each case that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series B
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series B Preferred Stock remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
organized under the laws of any state and substitutes the Series B Preferred
Stock for other preferred stock having substantially the same terms and same
rights as the Series B Preferred Stock, including with respect to distributions,
voting rights and rights upon liquidation, dissolution or winding-up, then the
occurrence of any such event shall not be deemed materially and adversely to
affect such rights, privileges or voting powers of the holders of the Series B
Preferred Stock and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock or obligation or security convertible into or
evidencing the right to purchase any such Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series B Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series B Preferred Stock with respect to
payment of distributions or the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation or issued to an affiliate of the Corporation upon
terms no more favorable than those it would offer in an arm's length transaction
to an unrelated party, shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers.
9
<PAGE>
SECTION 7. NO CONVERSION RIGHTS. The holders of the Series B
--------------------
Preferred Stock shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Corporation.
SECTION 8. NO SINKING FUND. No sinking fund shall be established for
---------------
the retirement or redemption of Series B Preferred Stock.
SECTION 9. NO PREEMPTIVE RIGHTS. No holder of the Series B Preferred
--------------------
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
THIRD: The Series B Preferred Stock have been classified and
-----
designated by the Board of Directors under the authority contained in the
Charter.
FOURTH: These Articles Supplementary have been approved by the Board
------
of Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Corporation acknowledges
-----
these Articles Supplementary to be the corporate act of the Corporation and, as
to all matters or facts required to be verified under oath, the undersigned
President acknowledges that to the best of his knowledge, information and
belief, these matters and facts are true in all material respects and that this
statement is made under the penalties for penalties for perjury.
10
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused Articles Supplementary
to be executed under seal in its name and on its behalf by its President and
attested to by its Secretary on this 23/rd/ day of February, 1999.
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
-------------------------------
Name: Thomas P. D'Arcy
Title: President
[SEAL]
ATTEST:
/s/ William B. King
-------------------------
Name: William B. King
Title: Secretary
11
