Eastgroup Properties Inc 10-Q for FY2026 Q2
Eastgroup Properties Inc (EGP)
10-Q
2026-07-22
For: 2026-06-30
View Original
Added on
July 22, 2026
About this 10-Q
Eastgroup Properties Inc filed this 10-Q on July 22, 2026, covering the quarter ended June 30, 2026 (FY2026 Q2).
Headline figures
Quarter ended June 30, 2026, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $193.33M
- up 9.1% from $177.29M a year earlier
- Net income
- $75.52M
- up 19.3% from net income of $63.31M a year earlier
- Diluted EPS
- $1.40
- up 16.7% from $1.20 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM 10-Q
(Mark One)
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2026
or
For the transition period from _____ to _____
Commission File Number: 1-07094
(Exact Name of Registrant as Specified in its Charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||||||||
| (Address of principal executive offices) | (Zip code) | ||||||||||
Registrant’s telephone number, including area code: (601 ) 354-3555
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
-1-
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| ☒ | Accelerated Filer | ☐ | Non-accelerated Filer | ☐ | |||||||||||||||||||
| Smaller Reporting Company | Emerging Growth Company | ||||||||||||||||||||||
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
The number of shares of common stock, $0.0001 par value, outstanding as of July 21, 2026 was 53,773,317 .
-2-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
FORM 10-Q
TABLE OF CONTENTS
FOR THE QUARTER ENDED JUNE 30, 2026
| Page | ||||||||
-3-
PART I. FINANCIAL INFORMATION.
ITEM 1. FINANCIAL STATEMENTS.
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| June 30, 2026 | December 31, 2025 | ||||||||||
| (unaudited) | |||||||||||
| (In thousands, except share and per share data) | |||||||||||
| ASSETS | |||||||||||
| Real estate properties | $ | ||||||||||
| Development and value-add properties | |||||||||||
| Accumulated depreciation | ( | ( | |||||||||
| Unconsolidated investment | |||||||||||
| Cash and cash equivalents | |||||||||||
| Other assets, net | |||||||||||
| TOTAL ASSETS | $ | ||||||||||
| LIABILITIES AND EQUITY | |||||||||||
| LIABILITIES | |||||||||||
| Unsecured bank credit facilities, net of debt issuance costs | $ | ( | |||||||||
| Unsecured debt, net of debt issuance costs | |||||||||||
| Accounts payable and accrued expenses | |||||||||||
| Other liabilities | |||||||||||
| Total Liabilities | |||||||||||
| EQUITY | |||||||||||
| Stockholders’ Equity: | |||||||||||
Common shares; $ and outstanding at June 30, 2026 and | |||||||||||
Excess shares; $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Distributions in excess of earnings | ( | ( | |||||||||
| Accumulated other comprehensive income | |||||||||||
| Total Stockholders’ Equity | |||||||||||
| Noncontrolling interest in joint ventures | |||||||||||
| Total Equity | |||||||||||
| TOTAL LIABILITIES AND EQUITY | $ | ||||||||||
See accompanying Notes to Consolidated Financial Statements (unaudited).
-4-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(UNAUDITED)
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| June 30, | June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands, except per share data) | |||||||||||||||||||||||
| REVENUES | |||||||||||||||||||||||
| Income from real estate operations | $ | ||||||||||||||||||||||
| Other revenue | |||||||||||||||||||||||
| EXPENSES | |||||||||||||||||||||||
| Expenses from real estate operations | |||||||||||||||||||||||
| Depreciation and amortization | |||||||||||||||||||||||
| General and administrative | |||||||||||||||||||||||
| Indirect leasing costs | |||||||||||||||||||||||
| OTHER INCOME (EXPENSE) | |||||||||||||||||||||||
| Interest expense | ( | ( | ( | ( | |||||||||||||||||||
| Gain on sales of real estate investments | |||||||||||||||||||||||
| Other income | |||||||||||||||||||||||
| NET INCOME | |||||||||||||||||||||||
| Net income attributable to noncontrolling interest in joint ventures | ( | ( | |||||||||||||||||||||
| NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | |||||||||||||||||||||||
| Other comprehensive income (loss) — Interest rate swaps | ( | ( | |||||||||||||||||||||
| TOTAL COMPREHENSIVE INCOME | $ | ||||||||||||||||||||||
| BASIC PER COMMON SHARE DATA FOR NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | |||||||||||||||||||||||
| Net income attributable to common stockholders | $ | ||||||||||||||||||||||
| Weighted average shares outstanding — Basic | |||||||||||||||||||||||
| DILUTED PER COMMON SHARE DATA FOR NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | |||||||||||||||||||||||
| Net income attributable to common stockholders | $ | ||||||||||||||||||||||
| Weighted average shares outstanding — Diluted | |||||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements (unaudited).
-5-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(UNAUDITED)
For the six months ended June 30, 2026:
| Common Shares | Additional Paid-In Capital | Distributions in Excess of Earnings | Accumulated Other Comprehensive Income | Noncontrolling Interest in Joint Ventures | Total | ||||||||||||||||||||||||||||||
| (In thousands, except share and per share data) | |||||||||||||||||||||||||||||||||||
| BALANCE, DECEMBER 31, 2025 | $ | ( | |||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||
| Net unrealized change in fair value of interest rate swaps | |||||||||||||||||||||||||||||||||||
Common dividends declared — $ share | ( | ( | |||||||||||||||||||||||||||||||||
| Stock-based compensation, net of forfeitures | |||||||||||||||||||||||||||||||||||
Issuance of Common stock offering, net of costs | |||||||||||||||||||||||||||||||||||
Withheld satisfy tax withholding obligations in connection with the vesting of restricted stock | ( | ( | |||||||||||||||||||||||||||||||||
Withheld satisfy tax withholding obligations in connection with the issuance of common stock | ( | ( | |||||||||||||||||||||||||||||||||
| BALANCE, MARCH 31, 2026 | ( | ||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||
| Net unrealized change in fair value of interest rate swaps | |||||||||||||||||||||||||||||||||||
Common dividends declared — $ share | ( | ( | |||||||||||||||||||||||||||||||||
| Stock-based compensation, net of forfeitures | |||||||||||||||||||||||||||||||||||
Issuance costs related to common stock offering | ( | ( | |||||||||||||||||||||||||||||||||
Withheld satisfy tax withholding obligations in connection with the issuance of common stock | ( | ( | |||||||||||||||||||||||||||||||||
| Contributions from noncontrolling interest | |||||||||||||||||||||||||||||||||||
| BALANCE, JUNE 30, 2026 | $ | ( | |||||||||||||||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements (unaudited).
-6-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(UNAUDITED)
For the six months ended June 30, 2025:
| Common Shares | Additional Paid-In Capital | Distributions in Excess of Earnings | Accumulated Other Comprehensive Income | Noncontrolling Interest in Joint Ventures | Total | ||||||||||||||||||||||||||||||
| (In thousands, except share and per share data) | |||||||||||||||||||||||||||||||||||
| BALANCE, DECEMBER 31, 2024 | $ | ( | |||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||
| Net unrealized change in fair value of interest rate swaps | ( | ( | |||||||||||||||||||||||||||||||||
Common dividends declared — $ share | ( | ( | |||||||||||||||||||||||||||||||||
| Stock-based compensation, net of forfeitures | |||||||||||||||||||||||||||||||||||
Issuance of | |||||||||||||||||||||||||||||||||||
Withheld satisfy tax withholding obligations in connection with the vesting of restricted stock | ( | ( | |||||||||||||||||||||||||||||||||
Withheld satisfy tax withholding obligations in connection with the issuance of common stock | ( | ( | |||||||||||||||||||||||||||||||||
| Net distributions to noncontrolling interest | ( | ( | |||||||||||||||||||||||||||||||||
| BALANCE, MARCH 31, 2025 | ( | ||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||
| Net unrealized change in fair value of interest rate swaps | ( | ( | |||||||||||||||||||||||||||||||||
Common dividends declared — $ share | ( | ( | |||||||||||||||||||||||||||||||||
| Stock-based compensation, net of forfeitures | |||||||||||||||||||||||||||||||||||
Issuance of Common stock offering, net of costs | |||||||||||||||||||||||||||||||||||
Withheld | ( | ( | |||||||||||||||||||||||||||||||||
| Net distributions to noncontrolling interest | ( | ( | |||||||||||||||||||||||||||||||||
| BALANCE, JUNE 30, 2025 | $ | ( | |||||||||||||||||||||||||||||||||
See accompanying Notes to Consolidated Financial Statements (unaudited).
-7-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
| Six Months Ended June 30, | |||||||||||
| 2026 | 2025 | ||||||||||
| (In thousands) | |||||||||||
| OPERATING ACTIVITIES | |||||||||||
| Net income | $ | ||||||||||
| Adjustments to reconcile net income to net cash provided by operating activities: | |||||||||||
| Depreciation and amortization | |||||||||||
| Stock-based compensation expense | |||||||||||
| Gain on sales of real estate investments | ( | ||||||||||
| Gain on involuntary conversion and business interruption claims | ( | ( | |||||||||
| Changes in operating assets and liabilities: | |||||||||||
| Accrued income and other assets | |||||||||||
| Accounts payable, accrued expenses and prepaid rent | |||||||||||
| Other | |||||||||||
| NET CASH PROVIDED BY OPERATING ACTIVITIES | |||||||||||
| INVESTING ACTIVITIES | |||||||||||
| Development and value-add properties | ( | ( | |||||||||
| Purchases of real estate properties | ( | ||||||||||
| Real estate improvements | ( | ( | |||||||||
| Net proceeds from sales of real estate investments and non-operating real estate | |||||||||||
| Leasing commissions | ( | ( | |||||||||
| Proceeds from involuntary conversion on real estate assets | |||||||||||
| Changes in accrued development costs | |||||||||||
| Changes in other assets and other liabilities | ( | ||||||||||
| NET CASH USED IN INVESTING ACTIVITIES | ( | ( | |||||||||
| FINANCING ACTIVITIES | |||||||||||
| Proceeds from unsecured bank credit facilities | |||||||||||
| Repayments on unsecured bank credit facilities | ( | ( | |||||||||
| Repayments on unsecured debt | ( | ||||||||||
| Debt issuance costs | ( | ( | |||||||||
| Distributions paid to stockholders (not including dividends accrued) | ( | ( | |||||||||
| Proceeds from common stock offerings | |||||||||||
| Common stock offering related costs | ( | ( | |||||||||
| Other | ( | ( | |||||||||
| NET CASH USED IN FINANCING ACTIVITIES | ( | ( | |||||||||
| INCREASE IN CASH AND CASH EQUIVALENTS | |||||||||||
| CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD | |||||||||||
| CASH AND CASH EQUIVALENTS AT END OF PERIOD | $ | ||||||||||
| SUPPLEMENTAL CASH FLOW INFORMATION | |||||||||||
Cash paid for interest, net of amounts capitalized of $ respectively | $ | ||||||||||
| Cash paid for operating lease liabilities | |||||||||||
| NON-CASH OPERATING ACTIVITY | |||||||||||
| Operating lease liabilities arising from obtaining right of use assets | $ | ||||||||||
| SUPPLEMENTAL NON-CASH BALANCES AT END OF PERIOD | |||||||||||
| Development costs payable | $ | ||||||||||
| Retainage payable | |||||||||||
| Real estate improvements and capitalized leasing costs payable | |||||||||||
| Dividends payable | |||||||||||
See accompanying Notes to Consolidated Financial Statements (unaudited).
-8-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(1)BASIS OF PRESENTATION
(2)PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of EastGroup, its wholly owned subsidiaries and any joint ventures in which the Company has a controlling interest.
As of June 30, 2026 and December 31, 2025, EastGroup held a controlling interest in two joint venture arrangements. The Company had a 95 % controlling interest in a joint venture arrangement owning 6.5 acres of land in San Diego, known by the Company as Miramar Land. The Company also had a 99.5 % controlling interest in a joint venture arrangement owning a property in Denver, known by the Company as Arista 36 Business Park 1-3.
The Company records 100% of the assets, liabilities, revenues and expenses of the buildings and land held in joint ventures it controls with the noncontrolling interests provided for in accordance with the joint venture agreements.
The equity method of accounting is used for the Company’s 50 % undivided tenant-in-common interest in Industry Distribution Center 2. All significant intercompany transactions and accounts have been eliminated in consolidation.
(3)USE OF ESTIMATES
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses during the reporting period and to disclose material contingent assets and liabilities at the date of the financial statements. Actual results could differ from those estimates.
(4)LEASE REVENUE
The Company’s primary source of revenue is rental income from business distribution space. The table below presents the components of Income from real estate operations for the three and six months ended June 30, 2026 and 2025:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| Lease income — Operating leases | $ | ||||||||||||||||||||||
Variable lease income (1) | |||||||||||||||||||||||
| Income from real estate operations | $ | ||||||||||||||||||||||
(1)Primarily includes tenant reimbursements for real estate taxes, insurance and common area maintenance.
(5)REAL ESTATE PROPERTIES
EastGroup has one reportable segment – industrial properties, consistent with the Company’s manner of internal reporting, measurement of operating results and allocation of the Company’s resources. The Company's properties are primarily in the 20,000 to 100,000 square foot range. The majority of the Company’s leases are triple net leases, in which the tenant is responsible for their pro rata share of operating expenses during the lease term, including real estate taxes, insurance and common area maintenance. The Company’s chief operating decision maker (“CODM”) is the Chief Executive Officer, who uses Net income as the primary measure of operating results in making decisions. Net income is computed in accordance with GAAP. Net income is used to evaluate the performance of the Company’s investments in real estate assets and its operating results and to allocate resources in acquiring or developing industrial properties. The following income and significant expense categories are regularly provided to the Company’s CODM as components of Net income, which are presented on the Consolidated Statements of Income and Comprehensive Income: Income from real estate operations, Expenses from real estate operations, General and administrative and Interest expense.
-9-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future undiscounted net cash flows (including estimated future expenditures necessary to substantially complete the asset) expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized for the amount by which the carrying amount of the asset exceeds the fair value of the asset. During the six month periods ended June 30, 2026 and 2025, the Company did not identify any impairment charges which should be recorded.
Depreciation of buildings and other improvements is computed using the straight-line method over estimated useful lives of generally 40 years for buildings and 3 to 15 years for improvements. Building improvements are capitalized, while maintenance and repair expenses are charged to expense as incurred. Significant renovations and improvements that improve or extend the useful life of the assets are capitalized. Depreciation expense was $45,902,000 and $91,101,000 for the three and six months ended June 30, 2026, respectively, and $43,093,000 and $85,401,000 for the same periods in 2025.
The Company’s Real estate properties and Development and value-add properties at June 30, 2026 and December 31, 2025 were as follows:
| June 30, 2026 | December 31, 2025 | ||||||||||
| (In thousands) | |||||||||||
| Real estate properties: | |||||||||||
| Land | $ | ||||||||||
| Buildings and building improvements | |||||||||||
| Tenant and other improvements | |||||||||||
Right of use assets — Ground leases (operating) (1) | |||||||||||
Development and value-add properties (2) | |||||||||||
| Accumulated depreciation | ( | ( | |||||||||
| $ | |||||||||||
(1)EastGroup applies the principles of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 842, Leases, and its related Accounting Standards Updates (“ASUs”) to account for its ground leases, which are classified as operating leases. The related operating lease liabilities for ground leases are included in Other liabilities on the Consolidated Balance Sheets.
(2)Value-add properties are defined in Note 6.
(6)DEVELOPMENT AND VALUE-ADD PROPERTIES
Development and value-add properties consists of properties in lease-up, under construction, and prospective development (primarily land). Value-add properties are defined as properties that are either acquired but not stabilized or can be converted to a higher and better use. Properties meeting either of the following two conditions are considered value-add properties: (i) Less than 75% leased as of the acquisition date (or will be less than 75% leased within one year of the acquisition date based on near term lease roll), or (ii) 20% or greater of the cumulative gross cost of the property will be spent to redevelop the property. Properties qualifying under these conditions are included in Development and value-add properties in the quarter in which they are acquired, if condition (i) above is met, or (ii) when construction to redevelop begins.
Costs associated with development (i.e., land, construction costs, interest expense, property taxes and other costs associated with development) are aggregated into the total capitalized costs of the property. Included in these costs are management’s estimates for the portions of internal costs (primarily personnel costs) deemed related to such development activities. The internal costs are allocated to specific development projects based on development activity. As the property becomes occupied, depreciation commences on the occupied portion of the building, and costs are capitalized only for the portion of the building that remains vacant. The Company transfers properties from Development and value-add properties to Real estate properties as follows: (i) for development properties, at the earlier of 90% occupancy or one year after completion of the shell construction, and (ii) for value-add properties, at the earlier of 90% occupancy or one year after acquisition or completion of redevelopment, as applicable. Upon the earlier of 90% occupancy or one year after completion of the shell construction/value-add acquisition date, capitalization of development costs, including interest expense, property taxes and internal personnel costs, ceases and depreciation commences on the entire property (excluding the land).
-10-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(7)REAL ESTATE PROPERTY ACQUISITIONS AND ACQUIRED INTANGIBLES
Upon acquisition of real estate properties, EastGroup applies the principles of FASB ASC 805, Business Combinations. The FASB Codification provides a framework for determining whether transactions should be accounted for as acquisitions of assets or businesses. Under the guidance, companies are required to utilize an initial screening test to determine whether substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets; if so, the set is not a business. Criteria considered in grouping similar assets include geographic location, market and operational risks and the physical characteristics of the assets. EastGroup determined that its real estate property acquisitions in 2025 and the first six months of 2026 are considered to be acquisitions of groups of similar identifiable assets; therefore, the acquisitions are not considered to be acquisitions of a business. As a result, the Company capitalized acquisition costs related to its 2025 and 2026 acquisitions.
The FASB Codification also provides guidance on how to properly determine the allocation of the purchase price among the individual components of both the tangible and intangible assets based on their respective fair values. The allocation to tangible assets (land, building and improvements) is based upon management’s determination of the value of the property as if it were vacant using discounted cash flow models. Land is valued using comparable land sales specific to the applicable market, provided by a third party. The Company determines whether any financing assumed is above or below market based upon comparison to similar financing terms for similar properties. The cost of the properties acquired may be adjusted based on indebtedness assumed from the seller that is determined to be above or below market rates.
Net amortization of above and below market lease intangibles, which is included in Income from real estate operations, increased rental income by $1,548,000 and $3,124,000 for the three and six months ended June 30, 2026, respectively, and $1,520,000 and $3,087,000 for the same periods in 2025. Amortization expense for in-place lease intangibles, which is included in Depreciation and amortization, was $2,969,000 and $6,013,000 for the three and six months ended June 30, 2026, respectively, and $3,067,000 and $6,285,000 for the same periods in 2025.
During the six months ended June 30, 2026, EastGroup acquired the following properties:
REAL ESTATE PROPERTIES ACQUIRED IN 2026 | Location | Size | Date Acquired | Cost (1) | ||||||||||||||||||||||
| (Square feet) | (In thousands) | |||||||||||||||||||||||||
Operating properties acquired (2) | ||||||||||||||||||||||||||
| Legend Point Logistics Crossing 2 & 3 | Jacksonville, FL | $ | ||||||||||||||||||||||||
(1)Cost is calculated in accordance with FASB ASC 805 and represents the sum of the purchase price, closing costs and capitalized acquisition costs.
(2)Operating properties are defined as stabilized real estate properties (land including buildings and improvements) in the Company’s operating portfolio; included in Real estate properties on the Consolidated Balance Sheets. Excludes acquired development land as discussed below.
There were no acquisitions of value-add properties or development land during the six months ended June 30, 2026.
-11-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The following table summarizes the allocation of the total consideration for the acquired assets and assumed liabilities in connection with the acquisition identified in the table above which was acquired during the six months ended June 30, 2026.
ACQUIRED ASSETS AND ASSUMED LIABILITIES IN 2026 | Cost | |||||||
| (In thousands) | ||||||||
| Land | $ | |||||||
| Buildings and building improvements | ||||||||
| Tenant and other improvements | ||||||||
| Total real estate properties acquired | ||||||||
In-place lease intangibles (1) | ||||||||
Above market lease intangibles (1) | ||||||||
Below market lease intangibles (2) | ( | |||||||
| Total assets acquired, net of liabilities assumed | $ | |||||||
(1)In-place lease intangibles and above market lease intangibles are each included in Other assets, net on the Consolidated Balance Sheets. These costs are amortized over the remaining terms of the associated leases in place at the time of acquisition.
(2)Below market lease intangibles are included in Other liabilities on the Consolidated Balance Sheets. These costs are amortized over the remaining terms of the associated leases in place at the time of acquisition.
The leases in the properties acquired during the six months ended June 30, 2026 had a weighted average remaining lease term at acquisition of approximately 4.0 years.
During 2025, EastGroup acquired the following properties:
REAL ESTATE PROPERTIES ACQUIRED IN 2025 | Location | Size | Date Acquired | Cost (1) | ||||||||||||||||||||||
| (Square feet) | (In thousands) | |||||||||||||||||||||||||
Operating properties acquired (2) | ||||||||||||||||||||||||||
| LifeScience Logistics Center | Raleigh, NC | $ | ||||||||||||||||||||||||
| Lumley Logistics Center | Raleigh, NC | |||||||||||||||||||||||||
| McKinney Airport Trade Center | Dallas, TX | |||||||||||||||||||||||||
| EastGroup Point at Cheyenne | Las Vegas, NV | |||||||||||||||||||||||||
| Total operating property acquisitions | $ | |||||||||||||||||||||||||
(1)Cost is calculated in accordance with FASB ASC 805 and represents the sum of the purchase price, closing costs and capitalized acquisition costs.
(2)Operating properties are defined as stabilized real estate properties (land including buildings and improvements) in the Company’s operating portfolio; included in Real estate properties on the Consolidated Balance Sheets. Excludes acquired development land as discussed below.
There were no value-add acquisitions during the year ended December 31, 2025.
-12-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The following table summarizes the allocation of the total consideration for the acquired assets and assumed liabilities in connection with the acquisitions identified in the table above which were acquired during the year ended December 31, 2025.
ACQUIRED ASSETS AND ASSUMED LIABILITIES IN 2025 | Cost | |||||||
| (In thousands) | ||||||||
| Land | $ | |||||||
| Buildings and building improvements | ||||||||
| Tenant and other improvements | ||||||||
| Total real estate properties acquired | ||||||||
In-place lease intangibles (1) | ||||||||
Above market lease intangibles (1) | ||||||||
Below market lease intangibles (2) | ( | |||||||
| Total assets acquired, net of liabilities assumed | $ | |||||||
(1)In-place lease intangibles and above market lease intangibles are each included in Other assets, net on the Consolidated Balance Sheets. These costs are amortized over the remaining terms of the associated leases in place at the time of acquisition.
(2)Below market lease intangibles are included in Other liabilities on the Consolidated Balance Sheets. These costs are amortized over the remaining terms of the associated leases in place at the time of acquisition.
The leases in the properties acquired during the year ended December 31, 2025 had a weighted average remaining lease term at acquisition of approximately 9.2 years.
Also during 2025, EastGroup purchased 300.4 acres of development land in four markets for $118,584,000 .
The Company periodically reviews the recoverability of goodwill (at least annually) and the recoverability of other intangibles (on a quarterly basis) for possible impairment. No impairment of goodwill or other intangibles existed during the three and six month periods ended June 30, 2026 and 2025.
(8)REAL ESTATE SOLD AND HELD FOR SALE
The Company considers a real estate property to be held for sale when it meets the criteria established under ASC 360, Property, Plant and Equipment, including when it is probable that the property will be sold within a year. Real estate properties held for sale are reported at the lower of the carrying amount or fair value less estimated costs to sell and are not depreciated while they are held for sale. The Company did not classify any properties as held for sale as of June 30, 2026 or December 31, 2025.
Results of operations and gains and losses on sales for properties sold are reported in continuing operations on the Consolidated Statements of Income and Comprehensive Income. The gains and losses on sales of operating properties are included in Gain on sales of real estate investments.
-13-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
A summary of Gain on sales of real estate investments for the six months ended June 30, 2026 and the year ended December 31, 2025 follows:
| REAL ESTATE PROPERTIES SOLD | Location | Size | Date Sold | Net Sales Price | Basis | Recognized Gain | ||||||||||||||||||||||||||||||||
| (Square feet) | (In thousands) | |||||||||||||||||||||||||||||||||||||
| 2026 | ||||||||||||||||||||||||||||||||||||||
| Shaw Commerce Center | Fresno, CA | $ | ||||||||||||||||||||||||||||||||||||
| Beach Commerce Center | Jacksonville, FL | |||||||||||||||||||||||||||||||||||||
| Total for 2026 | $ | |||||||||||||||||||||||||||||||||||||
| 2025 | ||||||||||||||||||||||||||||||||||||||
| Laura Alice Business Center | San Francisco, CA | $ | ||||||||||||||||||||||||||||||||||||
The table above includes sales of operating properties. Gains on sales of non-operating real estate are included in Other income on the Consolidated Statements of Income and Comprehensive Income. The Company did not sell any land during the six months ended June 30, 2026 or the year ended December 31, 2025.
(9)OTHER ASSETS
A summary of the Company’s Other assets, net follows:
| June 30, 2026 | December 31, 2025 | ||||||||||
| (In thousands) | |||||||||||
| Leasing costs (principally commissions) | $ | ||||||||||
| Accumulated amortization of leasing costs | ( | ( | |||||||||
| Leasing costs (principally commissions), net of accumulated amortization | |||||||||||
| Acquired in-place lease intangibles | |||||||||||
| Accumulated amortization of acquired in-place lease intangibles | ( | ( | |||||||||
| Acquired in-place lease intangibles, net of accumulated amortization | |||||||||||
| Acquired above market lease intangibles | |||||||||||
| Accumulated amortization of acquired above market lease intangibles | ( | ( | |||||||||
| Acquired above market lease intangibles, net of accumulated amortization | |||||||||||
| Straight-line rents receivable | |||||||||||
| Accounts receivable | |||||||||||
| Interest rate swap assets | |||||||||||
| Right of use assets — Office leases (operating) | |||||||||||
| Goodwill | |||||||||||
| Escrow deposits and prepaid costs for pending transactions | |||||||||||
| Prepaid insurance | |||||||||||
| Receivable for insurance proceeds | |||||||||||
| Prepaid expenses and other assets | |||||||||||
Total Other assets, net | $ | ||||||||||
-14-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(10) DEBT
The Company’s debt is detailed below:
| June 30, 2026 | December 31, 2025 | ||||||||||
| (In thousands) | |||||||||||
| Unsecured bank credit facilities — Variable rate, carrying amount | $ | ||||||||||
| Unamortized debt issuance costs | ( | ( | |||||||||
| Unsecured bank credit facilities, net of debt issuance costs | ( | ||||||||||
Unsecured debt — Fixed rate, carrying amount (1) | |||||||||||
| Unamortized debt issuance costs | ( | ( | |||||||||
| Unsecured debt, net of debt issuance costs | |||||||||||
| Total unsecured debt, net of debt issuance costs | $ | ||||||||||
(1)These loans have a fixed interest rate or an effectively fixed interest rate due to interest rate swaps.
The Company has a $625,000,000 unsecured bank credit facility with a group of 10 banks, which has a maturity date of July 31, 2028 . The credit facility contains options for two six-month extensions (at the Company's election) and an additional $625,000,000 accordion (with agreement by all parties). The interest rate on each tranche is reset on a monthly basis and as of June 30, 2026, was Secured Overnight Financing Rate (“SOFR”) plus 73.5 basis points with an annual facility fee of 14 basis points. As of June 30, 2026, the Company had no variable rate borrowings on this unsecured bank credit facility and an interest rate of 4.379 %. The Company has a $337,000 standby letter of credit pledged on this facility, which reduces borrowing capacity under the credit facility.
The Company also has a $50,000,000 unsecured bank credit facility with a maturity date of July 31, 2028 , or such later date as designated by the bank; the Company also has two six-month extensions available if the extension options in the $625,000,000 facility are exercised. The interest rate is reset on a daily basis and as of June 30, 2026, was SOFR plus 77.5 basis points with an annual facility fee of 15 basis points. As of June 30, 2026, the interest rate was 4.395 % with no outstanding balance.
For both facilities, the margin and facility fee are subject to changes in the Company's credit ratings. In February 2026, Moody’s Ratings upgraded EastGroup’s issuer rating to Baa1, outlook stable from Baa2, outlook positive.
The $625,000,000 facility also includes a sustainability-linked pricing component, pursuant to which the applicable interest rate margin is adjusted if the Company meets a certain sustainability performance target. This sustainability metric is evaluated annually, allowing the interest rate to be adjusted in the following year. The margin on the facility can be decreased or increased by up to four basis points and the facility fee can be decreased or increased by up to one basis point.
Scheduled principal payments on long-term debt, including Unsecured debt, net of debt issuance costs (not including Unsecured bank credit facilities, net of debt issuance costs), as of June 30, 2026, are as follows:
| MATURITY DATES | Principal Payments Maturing | |||||||
| (In thousands) | ||||||||
2026 — Remainder of year | $ | |||||||
| 2027 | ||||||||
| 2028 | ||||||||
| 2029 | ||||||||
| 2030 | ||||||||
2031 and beyond | ||||||||
| Total unsecured debt, before amortization of debt issuance costs | $ | |||||||
-15-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(11) ACCOUNTS PAYABLE AND ACCRUED EXPENSES
A summary of the Company’s Accounts payable and accrued expenses follows:
| June 30, 2026 | December 31, 2025 | ||||||||||
| (In thousands) | |||||||||||
| Property taxes payable | $ | ||||||||||
| Development costs payable | |||||||||||
| Retainage payable | |||||||||||
| Real estate improvements and capitalized leasing costs payable | |||||||||||
| Interest payable | |||||||||||
| Dividends payable | |||||||||||
Book overdraft (1) | |||||||||||
| Incentive compensation payable | |||||||||||
| Other payables and accrued expenses | |||||||||||
Total Accounts payable and accrued expenses | $ | ||||||||||
(1)Represents checks written before the end of the period which have not cleared the bank; therefore, the bank has not yet advanced cash to the Company. When the checks clear the bank, they will be funded through the Company’s working cash line of credit, which is included in Unsecured bank credit facilities, net of debt issuance costs on the Consolidated Balance Sheets.
(12) OTHER LIABILITIES
A summary of the Company’s Other liabilities follows:
| June 30, 2026 | December 31, 2025 | ||||||||||
| (In thousands) | |||||||||||
| Security deposits | $ | ||||||||||
| Prepaid rent and other deferred income | |||||||||||
| Operating lease liabilities — Ground leases | |||||||||||
| Operating lease liabilities — Office leases | |||||||||||
| Acquired below market lease intangibles | |||||||||||
| Accumulated amortization of below market lease intangibles | ( | ( | |||||||||
| Acquired below market lease intangibles, net of accumulated amortization | |||||||||||
| Interest rate swap liabilities | |||||||||||
| Other liabilities | |||||||||||
Total Other liabilities | $ | ||||||||||
-16-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(13) COMPREHENSIVE INCOME
Total Comprehensive Income is comprised of net income plus all other changes in equity from non-owner sources and is presented on the Consolidated Statements of Income and Comprehensive Income. The components of Accumulated other comprehensive income are presented in the Company’s Consolidated Statements of Changes in Equity and are summarized below. See Note 14 for information regarding the Company’s interest rate swaps.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| ACCUMULATED OTHER COMPREHENSIVE INCOME: | |||||||||||||||||||||||
| Balance at beginning of period | $ | ||||||||||||||||||||||
| Other comprehensive income (loss) — Interest rate swaps | ( | ( | |||||||||||||||||||||
| Balance at end of period | $ | ||||||||||||||||||||||
(14) DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
The Company is exposed to certain risks arising from both its business operations and economic conditions. The Company principally manages its exposures to a wide variety of business and operational risks through management of its core business activities. The Company manages economic risk, including interest rate, liquidity and credit risk primarily by managing the amount, sources and duration of its debt funding and, to a limited extent, the use of derivative instruments.
Specifically, the Company has entered into derivative instruments to manage exposures that arise from business activities that result in the payment of future known and uncertain cash amounts, the value of which are determined by interest rates. The Company’s derivative instruments, described below, are used to manage differences in the amount, timing and duration of the Company’s known or expected cash payments principally related to certain of the Company’s borrowings.
As of June 30, 2026, the Company had nine interest rate swaps outstanding, all of which are used to hedge the variable cash flows associated with unsecured loans. All of the Company’s interest rate swaps convert the related loans’ Term or Daily SOFR rate components to effectively fixed interest rates, and the Company has concluded that each of the hedging relationships is highly effective.
The changes in the fair value of derivatives designated and qualifying as cash flow hedges are recorded in Other comprehensive income (loss) and are subsequently reclassified into earnings through Interest expense as interest payments are made or received on the Company’s variable-rate debt in the period that the hedged forecasted transaction affects earnings. The Company estimates that an additional $7,296,000 will be reclassified from Other comprehensive income (loss) as a decrease in Interest expense over the next twelve months.
The Company’s valuation methodology for over-the-counter (“OTC”) derivatives is to discount cash flows based on SOFR market data. Uncollateralized or partially-collateralized trades include appropriate economic adjustments for funding costs and credit risk. The Company calculates its derivative valuations using mid-market prices.
-17-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
As of June 30, 2026 and December 31, 2025, the Company had the following outstanding interest rate derivatives that are designated as cash flow hedges of interest rate risk:
| NOTIONAL VALUE OF INTEREST RATE DERIVATIVES | June 30, 2026 | December 31, 2025 | ||||||||||||
| (In thousands) | ||||||||||||||
| Interest Rate Swap | $ | |||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
| Interest Rate Swap | ||||||||||||||
The table below presents the fair value of the Company’s derivative financial instruments as well as their classification on the Consolidated Balance Sheets as of June 30, 2026 and December 31, 2025. See Note 18 for additional information on the fair value of the Company’s interest rate swaps.
| FAIR VALUE OF DERIVATIVES DESIGNATED AS CASH FLOW HEDGES | June 30, 2026 | December 31, 2025 | ||||||||||||
| (In thousands) | ||||||||||||||
Interest rate swap assets (1) | $ | |||||||||||||
Interest rate swap liabilities (2) | ||||||||||||||
(1)Included in Other assets, net on the Consolidated Balance Sheets .
(2)Included in Other liabilities on the Consolidated Balance Sheets.
The table below presents the effect of the Company’s derivative financial instruments (interest rate swaps) on the Consolidated Statements of Income and Comprehensive Income for the three and six months ended June 30, 2026 and 2025:
| Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||||||||||||
| EFFECT OF CASH FLOW HEDGES ON OTHER COMPREHENSIVE INCOME (LOSS) | 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||||
| (In thousands) | ||||||||||||||||||||||||||
Income (loss) recognized in Other comprehensive income (loss) | $ | ( | ( | |||||||||||||||||||||||
Income reclassified from Accumulated other comprehensive income into Interest expense | ( | ( | ( | ( | ||||||||||||||||||||||
| Other comprehensive income (loss) — Interest rate swaps | $ | ( | ( | |||||||||||||||||||||||
See Note 13 for additional information on the Company’s Accumulated other comprehensive income resulting from its interest rate swaps.
Derivative financial agreements expose the Company to credit risk in the event of non-performance by the counterparties under the terms of the interest rate hedge agreements. The Company believes it minimizes the credit risk by transacting with financial institutions the Company regards as credit-worthy.
The Company has an agreement with its derivative counterparties containing a provision stating that the Company could be declared in default on its derivative obligations if the Company defaults on any of its indebtedness, including default where repayment of the indebtedness has not been accelerated by the lender. As of June 30, 2026, the Company had not posted any collateral related to these agreements and was not in breach of any of the provisions of these agreements. If the Company had breached any of these provisions, it would be required to settle its obligations under the agreements at their termination value.
-18-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(15) EARNINGS PER SHARE
The Company applies ASC 260, Earnings Per Share, which requires companies to present basic and diluted earnings per share (“EPS”). Basic EPS represents the amount of earnings for the period attributable to each share of common stock outstanding during the reporting period. The Company’s basic EPS is calculated by dividing Net Income Attributable to EastGroup Properties, Inc. Common Stockholders by the weighted average number of common shares outstanding. The weighted average number of common shares outstanding does not include any potentially dilutive securities or any unvested restricted shares of common stock. Outstanding forward equity sale agreements are potentially dilutive securities that are excluded from the basic EPS calculation until the agreements are settled through the issuance of shares and receipt of proceeds. Although unvested restricted shares are classified as issued and outstanding, they are considered forfeitable until the restrictions lapse and are not included in the basic EPS calculation until the shares vest.
Reconciliation of the numerators and denominators in the basic and diluted EPS computations is as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| BASIC EPS COMPUTATION FOR NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | |||||||||||||||||||||||
| Numerator — Net income attributable to common stockholders | $ | ||||||||||||||||||||||
| Denominator — Weighted average shares outstanding — Basic | |||||||||||||||||||||||
| DILUTED EPS COMPUTATION FOR NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | |||||||||||||||||||||||
| Numerator — Net income attributable to common stockholders | $ | ||||||||||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted average shares outstanding — Basic | |||||||||||||||||||||||
| Effect of dilutive securities | |||||||||||||||||||||||
| Weighted average shares outstanding — Diluted | |||||||||||||||||||||||
ANTI-DILUTIVE SECURITIES EXCLUDED FROM COMPUTATION OF DILUTED EPS (1) | |||||||||||||||||||||||
| Shares issuable under forward equity sale agreements | |||||||||||||||||||||||
| Unvested restricted shares of common stock | |||||||||||||||||||||||
| Total | |||||||||||||||||||||||
(1)Anti-dilutive securities could have a dilutive impact on EPS in future periods.
(16) EQUITY OFFERINGS
Underwriting commissions and offering costs incurred in connection with common stock offerings and at-the-market (“ATM”) equity offering programs have been reflected as a reduction of Additional paid-in capital.
Under relevant accounting guidance, sales of common stock under forward equity sale agreements are not deemed to be liabilities, and furthermore, meet the derivatives and hedging guidance scope exception to be accounted for as equity instruments based on the following assessment: (i) none of the agreements’ exercise contingencies were based on observable markets or indices other than those related to the market for our own stock price and operations; and (ii) none of the settlement provisions precluded the agreements from being indexed to our own stock.
-19-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
On December 5, 2025, we established an ATM common stock offering program pursuant to which we are able to sell from time to time shares of our common stock having an aggregate gross sales price of up to $1,000,000,000 (the “Current ATM Program”). The Current ATM Program replaced our previous $1,000,000,000 ATM program, which was established on October 25, 2024, under which we had sold shares of our common stock having an aggregate gross sales price of $479,899,000 through December 5, 2025.
In connection with the Current ATM Program, we may sell shares of our common stock directly through sales agents or through certain financial institutions acting as forward counterparties whereby, at our discretion, the forward counterparties, or their agents or affiliates, may borrow from third parties and subsequently sell shares of our common stock. The use of a forward equity sale agreement allows us to lock in a share price on the sale of shares of our common stock but defer settling and receiving the proceeds from the sale of shares until a later date. Additionally, the forward price that we expect to receive upon settlement of an agreement will be subject to adjustment for (i) a floating interest rate factor equal to a specified daily rate less a spread, (ii) the forward purchaser’s stock borrowing costs and (iii) scheduled dividends during the term of the agreement.
Direct Common Stock Issuance Activity
The following table presents the Company’s common stock issuance activity sold directly through sales agents pursuant to the Company's ATM programs during the six months ended June 30, 2026 and the year ended December 31, 2025:
Common Stock (1) | Weighted Average Price | Gross Proceeds | Net Proceeds | |||||||||||||||||||||||
| (In shares) | (Per share) | (In thousands) | ||||||||||||||||||||||||
Three months ended March 31, 2026 | $ | $ | ||||||||||||||||||||||||
Three months ended June 30, 2026 | ||||||||||||||||||||||||||
Six months ended June 30, 2026 | $ | $ | ||||||||||||||||||||||||
Year ended December 31, 2025 | $ | $ | ||||||||||||||||||||||||
(1)Excludes shares of common stock sold on a forward basis as described below.
Forward Equity Offering Activity
The following table presents the Company’s forward equity offering activity during the six months ended June 30, 2026 and the year ended December 31, 2025:
| Common Stock | Weighted Average Price | Gross Proceeds | ||||||||||||||||||
| (In shares) | (Per share) | (In thousands) | ||||||||||||||||||
Forward Sale Agreements Outstanding at December 31, 2024 | $ | $ | ||||||||||||||||||
New forward sale agreements (1) | ||||||||||||||||||||
Forward sale agreements settled — Shares issued and proceeds received (2) | ( | ( | ||||||||||||||||||
Forward Sale Agreements Outstanding at December 31, 2025 | ||||||||||||||||||||
New forward sale agreements (1) | ||||||||||||||||||||
Forward sale agreements settled — Shares issued and proceeds received | ||||||||||||||||||||
Forward Sale Agreements Outstanding at March 31, 2026 | ||||||||||||||||||||
New forward sale agreements (1) | ||||||||||||||||||||
Forward sale agreements settled — Shares issued and proceeds received | ||||||||||||||||||||
Forward Sale Agreements Outstanding at June 30, 2026 (3) | $ | $ | ||||||||||||||||||
(1)The Company did not receive any proceeds from the sale of common shares by the forward counterparties at the time it entered into forward sale agreements.
(2)EastGroup settled outstanding forward equity sale agreements by issuing 1,449,078 shares of common stock in exchange for net proceeds of approximately $258,066,000 .
(3)Available through forward equity sale agreements before the applicable settlement periods expire, which occur between March and June 2027.
-20-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(17) STOCK-BASED COMPENSATION
EastGroup applies the provisions of ASC 718, Compensation - Stock Compensation, to account for its stock-based compensation plans. ASC 718 requires that the compensation cost relating to share-based payment transactions be recognized in the financial statements and that the cost be measured on the fair value of the equity or liability instruments issued. The cost for market-based awards and awards that only require service are expensed on a straight-line basis over the requisite service periods. The cost for performance-based awards is determined using the graded vesting attribution method which recognizes each separate vesting portion of the award as a separate award on a straight-line basis over the requisite service period. This method accelerates the expensing of the award compared to the straight-line method. For awards with a performance condition, compensation expense is recognized when the performance condition is considered probable of achievement.
The total compensation expense for service-based and performance-based awards is based upon the fair market value of the shares on the grant date. The grant date fair value for awards that have been granted and are subject to a future market condition (total shareholder return) is determined using a Monte Carlo simulation pricing model developed to specifically accommodate the unique features of the awards.
The Company accrues dividends on unvested restricted shares and holds the certificates for the shares. Employees may vote the shares once performance-based or market-based conditions are met. Share certificates and dividends are delivered to the employee as the shares vest. Forfeitures of awards are recognized as they occur.
The Compensation Committee of the Company’s Board of Directors (the “Committee”) approves long-term and annual equity compensation awards for the Company’s executive officers. The vesting periods of the Company’s restricted stock plans vary, as determined by the Committee. Restricted stock is granted to executive officers subject to both continued service and the satisfaction of certain annual performance goals and multi-year market conditions as determined by the Committee.
The long-term compensation awards include components based on the Company’s total shareholder return over the upcoming three-year performance period and the employee’s continued service as of the vesting dates. The total shareholder return component is subject to bright-line tests that compare the Company’s total shareholder return to the member companies of the Nareit Equity Index and the Nareit industrial index. The Company begins recognizing expense for these awards based on the grant date fair value of the awards which is determined using a simulation pricing model developed to specifically accommodate the unique features of the award. These market-based awards are expensed on a straight-line basis over the requisite service period (75% vests at the end of the three-year performance period and 25% vests the following year). The long-term awards subject only to continuing employment are expensed on a straight-line basis over the requisite service period (25% vests in each of the following four years).
The annual equity compensation awards include components based on certain annual Company performance measures and individual annual performance goals over the upcoming year. The Company performance measures for 2026 are: (i) funds from operations (“FFO”) per share, (ii) cash same property net operating income change, (iii) debt-to-EBITDAre ratio, and (iv) fixed charge coverage. The Company begins recognizing expense for its estimate of the shares that could be earned pursuant to these awards on the grant date; the expense is adjusted to estimated performance levels during the performance period and to actual upon the determination of the awards. The shares are expensed using the graded vesting attribution method which recognizes each separate vesting portion of the award as a separate award on a straight-line basis over the requisite service period (34% vests at the end of the one-year performance period and 33% vests in each of the following two years). Any shares issued pursuant to the individual annual performance goals are determined by the Committee in its discretion following the performance period. The Company begins recognizing the expense for the shares on the grant date and will expense on a straight-line basis over the remaining service period (34% vests at the end of the one-year performance period and 33% vests in each of the following two years).
Equity compensation is also awarded to the Company’s non-executive officers and directors, which is subject to service only conditions and expensed on a straight-line basis over the required service period. The total compensation expense is based upon the fair market value of the shares on the grant date.
The Committee has adopted an Equity Award Retirement Policy (the “retirement policy”) which allows for accelerated vesting of unvested shares for retirement-eligible employees (defined as employees who meet certain age and years of service requirements). In order to qualify for accelerated vesting upon retirement, the eligible employees must provide required notification under the retirement policy and must retire from the Company. The Company has adjusted its stock-based compensation expense to accelerate the recognition of expense for retirement-eligible employees.
-21-
EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Stock-based compensation cost for employees was $2,823,000 and $7,276,000 for the three and six months ended June 30, 2026, respectively, of which $227,000 and $726,000 was capitalized as part of the Company’s development costs. For the three and six months ended June 30, 2025, stock-based compensation cost for employees was $2,476,000 and $7,061,000 , respectively, of which $365,000 and $924,000 was capitalized as part of the Company’s development costs.
Stock-based compensation expense for directors was $197,000 and $402,000 for the three and six months ended June 30, 2026, respectively, and $192,000 and $398,000 for the same periods in 2025.
Following is a summary of the total restricted shares granted, forfeited and delivered (vested) to participants with the related weighted average grant date fair value share prices. Of the shares that vested in the six months ended June 30, 2026, the Company withheld 33,101 shares to satisfy the tax obligations for those participants who elected this option as permitted under the applicable equity plan. As of the grant dates, the fair value of shares that were granted during the six months ended June 30, 2026 was $11,475,000 . As of the vesting dates, the aggregate fair value of shares that vested during the six months ended June 30, 2026 was $15,452,000 .
| Three Months Ended June 30, 2026 | Six Months Ended June 30, 2026 | |||||||||||||||||||||||||
| RESTRICTED STOCK ACTIVITY | Shares | Weighted Average Grant Date Fair Value | Shares | Weighted Average Grant Date Fair Value | ||||||||||||||||||||||
| Unvested at beginning of period | $ | $ | ||||||||||||||||||||||||
Granted (1) (2) | ||||||||||||||||||||||||||
| Forfeited | ||||||||||||||||||||||||||
| Vested | ( | ( | ||||||||||||||||||||||||
| Unvested at end of period | $ | $ | ||||||||||||||||||||||||
(1)Includes restricted shares granted during the year without performance or market conditions. Also includes restricted shares granted in previous years, for long-term and annual equity compensation awards for the Company's executive officers, for which performance based or market based conditions have been satisfied and the resulting number of shares have been determined during the year.
(2)Does not include restricted shares subject to open performance periods. For the long-term equity compensation awards established in 2024 and 2025 and the long-term and annual equity compensation awards established in 2026, the number of shares to be earned depends on the satisfaction of performance based or market based conditions, which may range from zero to 167,472.
(18) FAIR VALUE OF FINANCIAL INSTRUMENTS
ASC 820, Fair Value Measurement, defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC 820 also provides guidance for using fair value to measure financial assets and liabilities. The FASB Codification requires disclosure of the level within the fair value hierarchy in which the fair value measurements fall, including measurements using quoted prices in active markets for identical assets or liabilities (Level 1), quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active (Level 2) and significant valuation assumptions that are not readily observable in the market (Level 3).
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EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The following table presents the carrying amounts and estimated fair values of the Company’s financial instruments in accordance with ASC 820 at June 30, 2026 and December 31, 2025.
| June 30, 2026 | December 31, 2025 | ||||||||||||||||||||||
Carrying Amount (1) | Fair Value | Carrying Amount (1) | Fair Value | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| Financial Assets: | |||||||||||||||||||||||
| Cash and cash equivalents | $ | ||||||||||||||||||||||
| Interest rate swap assets | |||||||||||||||||||||||
| Financial Liabilities: | |||||||||||||||||||||||
Unsecured bank credit facilities — Variable rate (2) | |||||||||||||||||||||||
Unsecured debt (2) | |||||||||||||||||||||||
| Interest rate swap liabilities | |||||||||||||||||||||||
(1)Carrying amounts shown in the table are included on the Consolidated Balance Sheets under the indicated captions, except as explained below.
(2)Carrying amounts and fair values shown in the table exclude debt issuance costs (see Note 10 for additional information).
The following methods and assumptions were used to estimate the fair value of each class of financial instruments:
•Cash and cash equivalents: The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents. The carrying amounts approximate fair value due to the short maturity of those instruments.
•Interest rate swap assets (included in Other assets, net on the Consolidated Balance Sheets): The instruments are recorded at fair value based on models using inputs, such as interest rate yield curves and SOFR swap curves, that are observable for substantially the full term of the contract (Level 2 input). See Note 14 for additional information on the Company’s interest rate swaps.
•Unsecured bank credit facilities: The fair value of the Company’s unsecured bank credit facilities is estimated by discounting expected cash flows at current market rates (Level 2 input), excluding the effects of debt issuance costs.
•Unsecured debt: The fair value of the Company’s unsecured debt is estimated by discounting expected cash flows at the rates currently offered to the Company for debt of the same remaining maturities, as advised by the Company’s bankers (Level 2 input), excluding the effects of debt issuance costs.
•Interest rate swap liabilities (included in Other liabilities on the Consolidated Balance Sheets): The instruments are recorded at fair value based on models using inputs, such as interest rate yield curves and SOFR swap curves, that are observable for substantially the full term of the contract (Level 2 input). See Note 14 for additional information on the Company’s interest rate swaps.
(19) RISKS AND UNCERTAINTIES
(20) LEGAL MATTERS
(21) RECENT ACCOUNTING PRONOUNCEMENTS
EastGroup has evaluated all ASUs recently released by the FASB through the date the financial statements were issued and determined that the following ASUs apply to the Company.
In November 2024, the FASB issued ASU 2024-03, Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses, and in January 2025, the FASB
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EASTGROUP PROPERTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
issued ASU 2025-01, Income Statement - Reporting Comprehensive Income - Expense Disaggregation Disclosures (Subtopic 220-40): Clarifying the Effective Date. ASU 2024-03 requires additional disclosure of the nature of expenses included in the income statement as well as disclosures about specific types of expenses included in the expense captions presented in the income statement. ASU 2024-03, as clarified by ASU 2025-01, is effective for annual reporting periods beginning after December 15, 2026, and interim periods within annual reporting periods beginning after December 15, 2027, with early adoption permitted. Amendments should be applied either (i) prospectively to financial statements issued for reporting periods after the effective date, or (ii) retrospectively to all prior periods presented in the financial statements. EastGroup does not expect the adoption to have a material impact on its financial condition, results of operations or disclosures.
In November 2025, the FASB issued ASU 2025-09, Derivatives and Hedging (Topic 815): Hedge Accounting Improvements. The guidance makes targeted amendments to the hedge accounting model to better align accounting results with an entity’s risk management activities. The amendments affect, among other areas, (i) the assessment of similar risk exposure for groups of forecasted transactions in cash flow hedges, (ii) cash flow hedges of forecasted interest payments on “choose-your-rate” debt instruments, (iii) cash flow hedges of nonfinancial forecasted transactions, (iv) the use of certain options as hedging instruments, and (v) certain dual-hedge strategies involving foreign-currency-denominated debt. ASU 2025-09 is effective for annual reporting periods beginning after December 15, 2026, and for interim periods within those annual reporting periods, with early adoption permitted. The amendments are required to be applied prospectively, with certain transition provisions available for existing hedging relationships. The Company does not expect the adoption to have a material impact on its consolidated financial position or results of operations; however, the guidance may affect the Company’s hedge documentation, hedge effectiveness assessments, and related disclosures.
(22) SUBSEQUENT EVENTS
Subsequent to June 30, 2026, EastGroup sold 6.9 acres of land in Miami for approximately $14,300,000 . The Company expects to record a gain on the sale during the three months ended September 30, 2026.
Also subsequent to June 30, 2026, EastGroup acquired a business distribution building in Phoenix, containing 143,000 square feet, for approximately $27,600,000 .
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ITEM 2.MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
The following discussion and analysis of results of operations and financial condition should be read in conjunction with the consolidated financial statements and notes thereto appearing elsewhere in this Quarterly Report on Form 10-Q.
FORWARD-LOOKING STATEMENTS
This Quarterly Report on Form 10-Q includes “forward-looking statements” (within the meaning of the federal securities laws, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that reflect EastGroup Properties, Inc.’s (the “Company” or “EastGroup”) expectations and projections about the Company’s future results, performance, prospects, plans and opportunities. The Company has attempted to identify these forward-looking statements by the use of words such as “may,” “will,” “seek,” “expects,” “anticipates,” “believes,” “targets,” “intends,” “should,” “estimates,” “could,” “continue,” “assume,” “projects,” “goals,” “plans” or variations of such words and similar expressions or the negative of such words, although not all forward-looking statements contain such words. These forward-looking statements are based on information currently available to the Company and are subject to a number of known and unknown assumptions, risks, uncertainties and other factors that may cause the Company’s actual results, performance, plans or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. These factors include, among other things, those discussed below. The Company intends for all such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in Section 27A of the Securities Act and Section 21E of the Exchange Act, as applicable by law. The Company does not undertake to publicly update or revise any forward-looking statements, whether as a result of changes in underlying assumptions or new information, future events or otherwise, except as may be required by law.
The following are some, but not all, of the risks, uncertainties and other factors that could cause the Company’s actual results to differ materially from those presented in the Company’s forward-looking statements (the Company refers to itself as “we,” “us” or “our” in the following):
•international, national, regional and local economic conditions and conflicts;
•the competitive environment in which the Company operates;
•fluctuations of occupancy or rental rates;
•potential defaults (including bankruptcies or insolvency) on or non-renewal of leases by tenants, or our ability to lease space at current or anticipated rents, particularly in light of the ongoing uncertainty around interest rates, tariffs and general economic conditions;
•disruption in supply and delivery chains;
•increased construction and development costs, including as a result of tariffs or the recent inflationary environment;
•acquisition and development risks, including failure of such acquisitions and development projects to perform in accordance with our projections or to materialize at all;
•potential changes in the law or governmental regulations and interpretations of those laws and regulations, including changes in real estate laws, real estate investment trust (“REIT”) or corporate income tax laws, potential changes in zoning laws, or increases in real property tax rates, and any related increased cost of compliance;
•our ability to maintain our qualification as a REIT;
•natural disasters such as fires, floods, tornadoes, hurricanes, earthquakes or other extreme weather events, which may or may not be directly caused by longer-term shifts in climate patterns, could destroy buildings and damage regional economies;
•the availability of financing and capital, increases in or long-term elevated interest rates, and our ability to raise equity capital on attractive terms;
•financing risks, including the risks that our cash flows from operations may be insufficient to meet required payments of principal and interest, and we may be unable to refinance our existing debt upon maturity or obtain new financing on attractive terms or at all;
•our ability to retain our credit agency ratings;
•our ability to comply with applicable financial covenants;
•credit risk in the event of non-performance by the counterparties to our interest rate swaps;
•how and when pending forward equity sales may settle;
•lack of or insufficient amounts of insurance;
•litigation, including costs associated with prosecuting or defending claims and any adverse outcomes;
•our ability to attract and retain key personnel or lack of adequate succession planning;
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•risks related to the failure, inadequacy or interruption of our data security systems and processes, including security breaches through cyber attacks;
•pandemics, epidemics or other public health emergencies, such as the coronavirus pandemic;
•potentially catastrophic events, such as acts of war, civil unrest and terrorism, including escalation or expansion of the war in the Middle East; and
•environmental liabilities, including costs, fines or penalties that may be incurred due to necessary remediation of contamination of properties presently owned or previously owned by us.
The risks included herein are not exhaustive, and investors should be aware that there may be other factors that could adversely affect our business and financial performance. New risk factors emerge from time to time and it is not possible for our management to predict all risk factors, nor can we assess the impact of all risk factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results.
All forward-looking statements should be read in light of the risks identified in Part I, Item 1A. Risk Factors within the Company’s Annual Report on Form 10-K for the year ended December 31, 2025, as such factors may be updated from time to time in the Company’s periodic filings and current reports filed with the Securities and Exchange Commission.
OVERVIEW
EastGroup is a self-administered equity real estate investment trust (“REIT”) focused on maximizing shareholder value by being a leading provider in its markets of functional, flexible and quality business distribution space for location-sensitive customers (primarily in the 20,000 to 100,000 square foot range). The Company develops, acquires and operates distribution facilities, the majority of which are clustered around major transportation features in supply constrained submarkets in high-growth markets. The Company’s core markets are in the states of Texas, Florida, California, Arizona and North Carolina. The Company is organized as a Maryland corporation and has elected to be taxed as a REIT under the Internal Revenue Code of 1986, as amended. We utilize an umbrella partnership real estate investment trust (“UPREIT”) organizational structure to hold all or substantially all of our assets through EastGroup Properties, L.P., our operating partnership.
As of June 30, 2026, EastGroup owned 557 industrial properties in 12 states. As of that same date, the Company’s portfolio, including development projects and value-add properties in lease-up and under construction, included approximately 65,700,000 square feet consisting of 517 business distribution properties containing 59,800,000 square feet, 19 bulk distribution properties containing 5,100,000 square feet, and 21 business service properties containing 800,000 square feet.
During the six months ended June 30, 2026, economic uncertainty and stock market volatility continued due to a number of factors, including persistent inflation, interest rate uncertainty, concerns about tariffs, supply chain or trade disruptions and geopolitical conflict. While these factors did not have a significant adverse impact on EastGroup during the six months ended June 30, 2026, they may adversely impact the Company in the future. Most of the Company’s leases require the tenants to pay their pro rata share of operating expenses, including real estate taxes, insurance and common area maintenance, thereby reducing the Company’s exposure to increases in operating expenses resulting from inflation or other factors. Additionally, most of the Company's leases include scheduled rent increases. In the event inflation causes increases in the Company’s general and administrative expenses, or higher interest rates increase the Company’s cost of doing business, such increased costs would not be passed through to tenants and could adversely affect the Company’s results of operations. The Company continues to monitor inflation and interest rates, as well as direct and indirect impacts resulting from the uncertainty related to, or changes to, the overall regulatory and economic environment and from ongoing conflict in the Middle East.
EastGroup believes its current operating cash flow and unsecured bank credit facilities provide the capacity to fund the operations of the Company, and the Company also believes it can issue common and/or preferred equity and obtain debt financing on currently acceptable terms.
During the six months ended June 30, 2026, EastGroup sold, and subsequently settled the issuance of, 365,620 shares of common stock directly through sales agents under its at-the-market (“ATM”) common stock offering program at a weighted average price of $191.46 per share, providing aggregate net proceeds to the Company of $69,300,000.
During the six months ended June 30, 2026, EastGroup entered into forward equity sale agreements with certain financial institutions acting as forward counterparties under its ATM common stock offering program with respect to 1,040,457 shares of
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common stock with an initial weighted average forward price of $201.45 per share. The Company did not receive any proceeds from the sale of common shares by the forward counterparties at the time we entered into forward equity sale agreements.
EastGroup’s financing and equity issuances are further described in Liquidity and Capital Resources.
The Company’s primary source of revenue is rental income. During the six months ended June 30, 2026, EastGroup executed new and renewal leases on 4,887,000 square feet (representing 7.8% of the operating portfolio’s total square footage of 62,523,000). For new and renewal leases signed during the first six months of 2026, average rental rates increased by 35.2%, as compared to the former leases on the same spaces.
On a diluted per share basis, Net Income Attributable to EastGroup Properties, Inc. Common Stockholders was $3.17 for the six months ended June 30, 2026, compared to $2.35 for the same period of 2025, a 34.9% increase. See the Company’s analysis of performance trends below for further details.
Property Net Operating Income (“PNOI”), Excluding Income from Lease Terminations, from same properties (defined as operating properties owned during the entire period from January 1, 2025 through June 30, 2026), increased 6.8% for the six months ended June 30, 2026, as compared to the same period in 2025.
EastGroup’s operating portfolio was 96.8% leased and 95.6% occupied as of June 30, 2026, compared to 97.1% and 96.0%, respectively, at June 30, 2025. As of July 21, 2026, the operating portfolio was 96.9% leased and 95.6% occupied. As of June 30, 2026, leases approximating 4.5% of the operating portfolio, based on a percentage of annualized base rent, were scheduled to expire during the remainder of 2026. This percentage was reduced to 3.6% as of July 21, 2026.
The Company generates new sources of leasing revenue through its acquisitions and also its development and value-add program. The Company mitigates risks associated with development through a Board-approved maximum level of land held for development and by adjusting development start dates according to leasing activity.
During the six months ended June 30, 2026, the Company began construction of six development projects containing 933,000 square feet in five markets. EastGroup also transferred six development projects (1,231,000 square feet) in five markets from Development and value-add properties to Real estate properties, with costs of $124,991,000 at the date of transfer. As of June 30, 2026, EastGroup’s development and value-add program consisted of 17 projects (3,175,000 square feet) located in 12 markets. The projected total investment for the development projects, which were collectively 21.7% leased as of July 21, 2026, is $486,800,000, of which $175,105,000 remained to be invested as of June 30, 2026.
During the six months ended June 30, 2026, EastGroup acquired an operating property in Jacksonville, containing 177,000 square feet for $38,130,000. There were no value-add property acquisitions during the period.
During the six months ended June 30, 2026, EastGroup sold two operating properties, in Fresno and Jacksonville, totaling 444,000 square feet, generating gross sales proceeds of $44,000,000. The Company recognized $30,074,000 in Gain on sales of real estate investments during the six months ended June 30, 2026.
The Company typically funds its development and acquisition programs through its $675,000,000 unsecured bank credit facilities (as discussed in Liquidity and Capital Resources). As market conditions permit, EastGroup issues equity and/or employs fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps, to replace short-term bank borrowings. In February 2026, Moody’s Ratings upgraded EastGroup’s issuer rating to Baa1, outlook stable from Baa2, outlook positive. A security rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time by the assigning rating agency. Each rating should be evaluated independently of any other rating. For future debt issuances, the Company intends to issue primarily unsecured fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps. The Company may also access the public debt or convertible bond markets in the future as a means to raise capital.
Investors and industry analysts following the real estate industry primarily utilize two supplemental operating performance measures in analyzing the Company’s operating results: (i) funds from operations (“FFO”) attributable to common stockholders and (ii) PNOI.
FFO is computed in accordance with standards established by the National Association of Real Estate Investment Trusts, Inc. (“Nareit”). Nareit’s guidance allows preparers an option as it pertains to whether gains or losses on sale, or impairment charges, on real estate assets incidental to a REIT’s business are excluded from the calculation of FFO. EastGroup has made the election to exclude activity related to such assets that are incidental to our business.
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FFO is calculated as net income (loss) attributable to common stockholders computed in accordance with U.S. generally accepted accounting principles (“GAAP”), excluding gains and losses from sales of real estate property (including other assets incidental to the Company’s business) and impairment losses, adjusted for real estate related depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. FFO is not considered as an alternative to net income (determined in accordance with GAAP) as an indication of the Company’s financial performance, nor is it a measure of the Company’s liquidity or indicative of funds available to provide for the Company’s cash needs, including its ability to make distributions. The Company’s key drivers affecting FFO are changes in PNOI (as discussed below), interest rates, the amount of leverage the Company employs and general and administrative expenses.
PNOI is defined as Income from real estate operations less Expenses from real estate operations (including market-based internal management fee expense) plus the Company’s share of income and property operating expenses from its less-than-wholly-owned real estate investments.
EastGroup sometimes refers to PNOI from Same Properties as “Same PNOI”; the Company also presents Same PNOI, Excluding Income from Lease Terminations. Same Properties is defined as operating properties owned during the entire current and prior year reporting periods. Properties developed or acquired are excluded until held in the operating portfolio for both the current and prior year reporting periods. Properties sold during the current or prior year reporting periods are also excluded. For the three and six months ended June 30, 2026, Same Properties includes properties which were included in the operating portfolio for the entire period from January 1, 2025 through June 30, 2026. The Company presents Same PNOI and Same PNOI, Excluding Income from Lease Terminations, as a property-level supplemental measure of performance used to evaluate the performance of the Company’s investments in real estate assets and its operating results on a same property basis.
FFO and PNOI are supplemental industry reporting measurements used to evaluate the performance of the Company’s investments in real estate assets and its operating results. The Company believes that the exclusion of depreciation and amortization in the calculations of PNOI and FFO provides supplemental indicators of the properties’ performance since real estate values have historically risen or fallen with market conditions. PNOI and FFO as calculated by the Company may not be comparable to similarly titled but differently calculated measures for other REITs. Investors should be aware that items excluded from or added back to FFO are significant components in understanding and assessing the Company’s financial performance. These non-GAAP figures should not be considered a substitute for, and should only be considered together with and as a supplement to, the Company’s financial information presented in accordance with GAAP.
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The following table presents reconciliations of Net Income to PNOI, Same PNOI and Same PNOI, Excluding Income from Lease Terminations, for the three and six months ended June 30, 2026 and 2025.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| NET INCOME | $ | 75,523 | 63,313 | 170,147 | 122,750 | ||||||||||||||||||
| Gain on sales of real estate investments | (5,189) | — | (30,074) | — | |||||||||||||||||||
| Gain on involuntary conversion and business interruption claims | — | — | (1,950) | (1,763) | |||||||||||||||||||
| Interest income | (244) | (277) | (439) | (509) | |||||||||||||||||||
| Other | (39) | (30) | (61) | (72) | |||||||||||||||||||
| Indirect leasing costs | 231 | 171 | 456 | 434 | |||||||||||||||||||
| Depreciation and amortization | 56,406 | 53,012 | 111,903 | 105,532 | |||||||||||||||||||
| Company’s share of depreciation from unconsolidated investment | 31 | 31 | 62 | 62 | |||||||||||||||||||
| Interest expense | 8,990 | 7,690 | 18,069 | 15,715 | |||||||||||||||||||
| General and administrative expense | 7,207 | 5,290 | 14,823 | 13,244 | |||||||||||||||||||
| Noncontrolling interest in PNOI of consolidated joint ventures | — | (16) | — | (31) | |||||||||||||||||||
| PROPERTY NET OPERATING INCOME (“PNOI”) | 142,916 | 129,184 | 282,936 | 255,362 | |||||||||||||||||||
PNOI from 2025 and 2026 acquisitions | (2,965) | — | (5,623) | — | |||||||||||||||||||
PNOI from 2025 and 2026 development and value-add properties | (6,138) | (2,577) | (10,625) | (4,361) | |||||||||||||||||||
PNOI from 2025 and 2026 operating property dispositions | (5) | (676) | (363) | (1,406) | |||||||||||||||||||
| Other PNOI | 222 | 455 | 417 | 713 | |||||||||||||||||||
| SAME PNOI | 134,030 | 126,386 | 266,742 | 250,308 | |||||||||||||||||||
| Lease termination fee income from same properties | (52) | (193) | (95) | (732) | |||||||||||||||||||
| SAME PNOI, EXCLUDING INCOME FROM LEASE TERMINATIONS | $ | 133,978 | 126,193 | 266,647 | 249,576 | ||||||||||||||||||
PNOI was calculated as follows for the three and six months ended June 30, 2026 and 2025.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||
| Income from real estate operations | $ | 193,292 | 177,256 | 383,526 | 349,900 | ||||||||||||||||||
| Expenses from real estate operations | (50,684) | (48,363) | (101,207) | (95,123) | |||||||||||||||||||
| Noncontrolling interest in PNOI of consolidated joint ventures | — | (16) | — | (31) | |||||||||||||||||||
| PNOI from 50% owned unconsolidated investment | 308 | 307 | 617 | 616 | |||||||||||||||||||
| PROPERTY NET OPERATING INCOME (“PNOI”) | $ | 142,916 | 129,184 | 282,936 | 255,362 | ||||||||||||||||||
Income from real estate operations is comprised of rental income, expense reimbursement pass-through income and other real estate income. Expenses from real estate operations is comprised of property taxes, insurance, utilities, repair and maintenance expenses, management fees and other operating costs. Generally, the Company’s most significant operating expenses are property taxes and insurance. Tenant leases may be net leases in which the total operating expenses are recoverable, modified gross leases in which some of the operating expenses are recoverable, or gross leases in which no expenses are recoverable (gross leases represent only a small portion of the Company’s total leases). Increases in property operating expenses are fully recoverable under net leases and recoverable to a high degree under modified gross leases. Modified gross leases often include base year amounts, and expense increases over these amounts are recoverable. The Company’s exposure to property operating expenses is primarily due to vacancies and leases for occupied space that limit the amount of expenses that can be recovered.
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The following table presents reconciliations of Net Income Attributable to EastGroup Properties, Inc. Common Stockholders to FFO Attributable to Common Stockholders for the three and six months ended June 30, 2026 and 2025.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2026 | 2025 | 2026 | 2025 | ||||||||||||||||||||
| (In thousands, except per share data) | |||||||||||||||||||||||
| NET INCOME ATTRIBUTABLE TO EASTGROUP PROPERTIES, INC. COMMON STOCKHOLDERS | $ | 75,523 | 63,299 | 170,147 | 122,722 | ||||||||||||||||||
| Depreciation and amortization | 56,406 | 53,012 | 111,903 | 105,532 | |||||||||||||||||||
| Company’s share of depreciation from unconsolidated investment | 31 | 31 | 62 | 62 | |||||||||||||||||||
| Depreciation and amortization attributable to noncontrolling interest | — | (1) | (1) | (2) | |||||||||||||||||||
| Gain on sales of real estate investments | (5,189) | — | (30,074) | — | |||||||||||||||||||
| FFO ATTRIBUTABLE TO COMMON STOCKHOLDERS | 126,771 | 116,341 | 252,037 | 228,314 | |||||||||||||||||||
| Gain on involuntary conversion and business interruption claims | — | — | (1,950) | (1,763) | |||||||||||||||||||
| FFO ATTRIBUTABLE TO COMMON STOCKHOLDERS, EXCLUDING GAIN ON INVOLUNTARY CONVERSION AND BUSINESS INTERRUPTION CLAIMS | $ | 126,771 | 116,341 | 250,087 | 226,551 | ||||||||||||||||||
| Net income attributable to common stockholders per diluted share | $ | 1.40 | 1.20 | 3.17 | 2.35 | ||||||||||||||||||
| FFO attributable to common stockholders per diluted share | $ | 2.36 | 2.21 | 4.70 | 4.37 | ||||||||||||||||||
FFO attributable to common stockholders per diluted share, excluding gain on involuntary conversion and business interruption claims | $ | 2.36 | 2.21 | 4.66 | 4.33 | ||||||||||||||||||
| Diluted shares for earnings per share and funds from operations per share | 53,783 | 52,579 | 53,665 | 52,304 | |||||||||||||||||||
The Company analyzes the following performance trends in evaluating the revenues and expenses of the Company:
•Net Income Attributable to EastGroup Properties, Inc. Common Stockholders for the three and six months ended June 30, 2026 was $75,523,000 ($1.41 per basic and $1.40 per diluted share) and $170,147,000 ($3.18 per basic and $3.17 per diluted share), respectively, compared to $63,299,000 ($1.21 per basic and $1.20 per diluted share) and $122,722,000 ($2.35 per basic and diluted share), respectively, for the same periods in 2025. See Results of Operations for further analysis.
•The change in FFO per share represents the increase or decrease in FFO per share from the current period compared to the same period in the prior year. For the three months ended June 30, 2026, FFO was $2.36 per diluted share compared with $2.21 per diluted share for the same period of 2025, an increase of 6.8%. For the six months ended June 30, 2026, FFO was $4.70 per diluted share compared with $4.37 per diluted share for the same period of 2025, an increase of 7.6%. FFO increased during the three and six months ended June 30, 2026, as compared to the same periods in 2025, primarily due to the increase in PNOI, partially offset by an increase in general and administrative expense and interest expense.
•For the three months ended June 30, 2026, PNOI increased by $13,732,000, or 10.6%, as compared to the same period in 2025. PNOI increased $7,644,000 from same property operations, $3,561,000 from newly developed and value-add properties and $2,965,000 from 2025 and 2026 acquisitions; PNOI decreased $671,000 due to operating properties sold in 2025 and 2026.
For the six months ended June 30, 2026, PNOI increased by $27,574,000, or 10.8%, as compared to the same period in 2025. PNOI increased $16,434,000 from same property operations, $6,264,000 from newly developed and value-add properties and $5,623,000 from 2025 and 2026 acquisitions; PNOI decreased $1,043,000 due to operating properties sold in 2025 and 2026.
•The change in Same PNOI represents the PNOI increase or decrease for the same operating properties owned during the entire period from January 1, 2025 through June 30, 2026. Same PNOI, excluding income from lease terminations, increased 6.2% and 6.8% for the three and six months ended June 30, 2026, respectively, as compared to the same periods in 2025.
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•Same property average occupancy represents the average month-end percentage of leased square footage for which the lease term has commenced as compared to the total leasable square footage for the same operating properties owned during the entire current and prior year reporting periods (January 1, 2025 through June 30, 2026). Same property average occupancy was 96.9% for the three months ended June 30, 2026, compared to 96.3% for the same period of 2025. Same property average occupancy was 97.1% for the six months ended June 30, 2026, compared to 96.2% for the same period of 2025.
•The same property average rental rate calculated in accordance with GAAP represents the average annual rental rates of leases in place for the same operating properties owned during the entire current and prior year reporting periods (January 1, 2025 through June 30, 2026). The same property average rental rate was $9.34 and $9.30 per square foot for the three and six months ended June 30, 2026, respectively, compared to $8.80 and $8.71 per square foot for the same periods of 2025.
•Occupancy is the percentage of leased square footage for which the lease term has commenced as compared to the total leasable square footage as of the close of the reporting period. Occupancy at June 30, 2026 was 95.6%. Quarter-end occupancy ranged from 95.9% to 96.5% over the previous four quarters ended June 30, 2025 to March 31, 2026.
•Rental rate change represents the rental rate increase or decrease on new and renewal leases compared to the prior leases on the same space. Rental rate increases on new and renewal leases (4.5% of the operating portfolio’s total square footage) averaged 34.1% for the three months ended June 30, 2026. For the six months ended June 30, 2026, rental rate increases on new and renewal leases (7.8% of the operating portfolio’s total square footage) averaged 35.2%.
FINANCIAL CONDITION
EastGroup’s Total Assets were $5,522,866,000 at June 30, 2026, an increase of $91,059,000 from December 31, 2025. Total Liabilities increased $12,249,000 to $1,947,468,000, and Total Equity increased $78,810,000 to $3,575,398,000 during the same period. The following paragraphs explain these changes in detail.
Assets
Real estate properties increased $147,339,000 during the six months ended June 30, 2026, primarily due to: (i) the transfer of projects from Development and value-add properties to Real estate properties; (ii) the acquisition of an operating property; (iii) capital improvements at the Company’s properties; and (iv) costs incurred on development and value-add projects subsequent to transfer to Real estate properties discussed below. The increases were partially offset by the sale of operating properties and the transfer of a property from Real estate properties to Development and value-add properties.
During the six months ended June 30, 2026, EastGroup acquired the following properties:
REAL ESTATE PROPERTIES ACQUIRED IN 2026 | Location | Size | Date Acquired | Cost (1) | ||||||||||||||||||||||
| (Square feet) | (In thousands) | |||||||||||||||||||||||||
Operating properties acquired (2) | ||||||||||||||||||||||||||
| Legend Point Logistics Crossing 2 & 3 | Jacksonville, FL | 177,000 | 02/18/2026 | $ | 38,130 | |||||||||||||||||||||
(1)Cost is calculated in accordance with FASB ASC 805 and represents the sum of the purchase price, closing costs and capitalized acquisition costs.
(2)Operating properties are defined as stabilized real estate properties (land including buildings and improvements) in the Company’s operating portfolio; included in Real estate properties on the Consolidated Balance Sheets. Excludes acquired development land as discussed below.
There were no acquisitions of value-add properties or development land during the six months ended June 30, 2026.
During the six months ended June 30, 2026, EastGroup sold two operating properties, in Fresno and Jacksonville, totaling 444,000 square feet, generating gross sales proceeds of $44,000,000. The Company recognized $30,074,000 in Gain on sales of real estate investments during the six months ended June 30, 2026.
During the six months ended June 30, 2026, the Company made capital improvements of $27,607,000 on existing properties (included in the Real Estate Improvements table under Results of Operations). Also, the Company incurred costs of $7,196,000
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on development and value-add properties subsequent to transfer to Real estate properties; the Company records these expenditures as development and value-add costs on the Consolidated Statements of Cash Flows.
Development and value-add properties at June 30, 2026 consisted of projects in lease-up and under construction of $311,695,000 and prospective development (primarily land) of $379,821,000. The Company’s total investment in Development and value-add properties at June 30, 2026 was $691,516,000 compared to $710,200,000 at December 31, 2025. The decrease in Development and value-add properties was primarily due to the transfer of six development and value-add projects to Real estate properties during the six months ended June 30, 2026 with a total investment of $124,991,000 as of the date of transfer.
Total capital invested for development during the first six months of 2026 was $99,525,000, which consisted of improvement costs of $92,329,000 on development and value-add properties and costs of $7,196,000 on properties subsequent to transfer to Real estate properties. The capitalized costs incurred on development and value-add properties subsequent to transfer to Real estate properties include capital improvements at the properties and do not include other capitalized costs associated with development (i.e., interest expense, property taxes and internal personnel costs). The Company capitalized internal development costs of $1,785,000 and $4,124,000 for the three and six months ended June 30, 2026, respectively, compared to $1,717,000 and $3,671,000 for the same periods of 2025. The increase was due to variations in timing and volume of development projects under construction.
A summary of the Company's Development and Value-Add Properties for the six months ended June 30, 2026 follows:
| Actual or Estimated Building Size | Cumulative Costs Incurred as of 6/30/2026 | Projected Total Costs | ||||||||||||||||||||||||||||||||||||||||||
| (Square feet) | (In thousands) | |||||||||||||||||||||||||||||||||||||||||||
| Lease-up | 1,354,000 | $ | 204,871 | $ | 228,300 | |||||||||||||||||||||||||||||||||||||||
| Under construction | 1,821,000 | 106,824 | 258,500 | |||||||||||||||||||||||||||||||||||||||||
| Total lease-up and under construction | 3,175,000 | 311,695 | $ | 486,800 | ||||||||||||||||||||||||||||||||||||||||
| Prospective development (primarily land) | 10,992,000 | 379,821 | ||||||||||||||||||||||||||||||||||||||||||
Total Development and value-add properties as of June 30, 2026 | 14,167,000 | $ | 691,516 | |||||||||||||||||||||||||||||||||||||||||
Total Development and value-add properties transferred to Real estate properties during the six months ended June 30, 2026 | 1,231,000 | $ | 124,991 | (1) | ||||||||||||||||||||||||||||||||||||||||
(1)Represents cumulative costs at the date of transfer.
Accumulated depreciation on real estate, development and value-add properties increased $69,835,000 during the six months ended June 30, 2026, primarily due to depreciation expense of $91,101,000 partially offset by the sale of operating properties and write-offs of fully depreciated assets.
Cash and cash equivalents increased $32,375,000 during the six months ended June 30, 2026. Refer to the Consolidated Statements of Cash Flows and Liquidity and Capital Resources for further details.
Other assets, net increased $209,000 during the six months ended June 30, 2026. See Note 9 in the Notes to Consolidated Financial Statements for further details.
Liabilities
Unsecured bank credit facilities, net of debt issuance costs decreased $18,344,000 during the six months ended June 30, 2026, primarily due to repayments of $153,389,000, partially offset by borrowings of $134,544,000. The Company’s credit facilities are described in greater detail in Liquidity and Capital Resources.
Unsecured debt, net of debt issuance costs increased $557,000 during the six months ended June 30, 2026, primarily due to debt issuance cost activity during the period. The borrowings and repayments on Unsecured debt, net of debt issuance costs are described in greater detail under Liquidity and Capital Resources.
Accounts payable and accrued expenses increased $35,834,000 during the six months ended June 30, 2026. Refer to Note 11 in the Notes to Consolidated Financial Statements for further details.
Other liabilities decreased $5,798,000 during the six months ended June 30, 2026. Refer to Note 12 in the Notes to Consolidated Financial Statements for further details.
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Equity
Additional paid-in capital increased $70,351,000 during the six months ended June 30, 2026, primarily due to the issuance of common stock under the Company’s ATM program (as discussed in Note 16 in the Notes to Consolidated Financial Statements) and activity related to stock-based compensation (as discussed in Note 17 in the Notes to Consolidated Financial Statements).
Distributions in excess of earnings decreased $3,038,000 during the six months ended June 30, 2026, as a result of Net Income Attributable to EastGroup Properties, Inc. Common Stockholders of $170,147,000 exceeding dividends on common stock of $167,109,000.
Accumulated other comprehensive income increased $5,405,000 during the six months ended June 30, 2026. The increase resulted from the change in fair value of the Company’s interest rate swaps (cash flow hedges) which are further discussed in Notes 13 and 14 in the Notes to Consolidated Financial Statements.
RESULTS OF OPERATIONS
Net Income Attributable to EastGroup Properties, Inc. Common Stockholders for the three and six months ended June 30, 2026 was $75,523,000 ($1.41 per basic and $1.40 per diluted share) and $170,147,000 ($3.18 per basic and $3.17 per diluted share), respectively, compared to $63,299,000 ($1.21 per basic and $1.20 per diluted share) and $122,722,000 ($2.35 per basic and diluted share) for the same periods in 2025. The following paragraphs provide further details with respect to these changes:
•PNOI was $142,916,000 ($2.66 per diluted share) for the three months ended June 30, 2026, compared to $129,184,000 ($2.46 per diluted share) during the same period of 2025. PNOI increased $7,644,000 from same property operations, $3,561,000 from newly developed and value-add properties and $2,965,000 from 2025 and 2026 acquisitions; PNOI decreased $671,000 due to operating properties sold in 2025 and 2026. Income recognized from straight-lining of rent decreased by $875,000 for the three months ended June 30, 2026, as compared to the same period of 2025.
PNOI was $282,936,000 ($5.27 per diluted share) for the six months ended June 30, 2026, compared to $255,362,000 ($4.88 per diluted share) during the same period of 2025. PNOI increased $16,434,000 from same property operations, $6,264,000 from newly developed and value-add properties and $5,623,000 from 2025 and 2026 acquisitions; PNOI decreased $1,043,000 due to operating properties sold in 2025 and 2026. Income recognized from straight-lining of rent decreased by $1,264,000 for the six months ended June 30, 2026, as compared to the same period of 2025.
•EastGroup recognized Gains on sales of real estate investments of $5,189,000 ($0.10 per diluted share) and $30,074,000 ($0.56 per diluted share) during the three and six months ended June 30, 2026, respectively. The Company did not recognize any gains or losses on operating property dispositions during the three and six months ended June 30, 2025. The Company’s 2025 and 2026 sales transactions are described in Note 8 of the Notes to Consolidated Financial Statements.
•Depreciation and amortization was $56,406,000 ($1.05 per diluted share) and $53,012,000 ($1.01 per diluted share) during the three months ended June 30, 2026 and 2025, respectively. Depreciation and amortization was $111,903,000 ($2.09 per diluted share) and $105,532,000 ($2.02 per diluted share) during the six months ended June 30, 2026 and 2025, respectively. The increase is primarily due to operating properties acquired by the Company in 2025 and 2026 and properties transferred from Development and value-add properties in 2025 and 2026, partially offset by operating properties sold in 2025 and 2026.
•General and administrative was $7,207,000 ($0.13 per diluted share) for the three months ended June 30, 2026, as compared to $5,290,000 ($0.10 per diluted share) for the same period of 2025. General and administrative was $14,823,000 ($0.28 per diluted share) for the six months ended June 30, 2026, as compared to $13,244,000 ($0.25 per diluted share) for the same period of 2025. The increases are primarily due to additional overhead and personnel costs incurred to support portfolio growth.
•Interest expense recognized was $8,990,000 ($0.17 per diluted share) and $7,690,000 ($0.15 per diluted share) during the three months ended June 30, 2026 and 2025, respectively. Interest expense recognized was $18,069,000 ($0.34 per diluted share) and $15,715,000 ($0.30 per diluted share) during the six months ended June 30, 2026 and 2025, respectively. Refer to the table below for additional details.
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•Weighted average shares outstanding increased by 1,204,000 shares on a diluted basis for the three months ended June 30, 2026, as compared to the same period of 2025. Weighted average shares outstanding increased by 1,361,000 shares on a diluted basis for the six months ended June 30, 2026, as compared to the same period of 2025. The increase is primarily due to issuance of shares through common stock offerings, as discussed in Liquidity and Capital Resources.
EastGroup entered into 51 leases with certain rent concessions on 2,447,000 square feet during the three months ended June 30, 2026, with total rent concessions of $9,112,000 over the terms of the leases. During the same period of 2025, the Company entered into 35 leases with certain rent concessions on 727,000 square feet with total rent concessions of $1,635,000 over the terms of the leases.
EastGroup entered into 77 leases with certain rent concessions on 3,283,000 square feet during the six months ended June 30, 2026, with total rent concessions of $11,307,000 over the terms of the leases. During the same period of 2025, the Company entered into 74 leases with certain rent concessions on 2,087,000 square feet with total rent concessions of $4,796,000 over the terms of the leases.
The Company’s percentage of leased square footage for the operating portfolio was 96.8% at June 30, 2026, compared to 97.1% at June 30, 2025. Occupancy for the Company’s operating portfolio at June 30, 2026 was 95.6% compared to 96.0% at June 30, 2025.
The following table presents the components of Interest expense for the three and six months ended June 30, 2026 and 2025:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||||||||||||||
| 2026 | 2025 | Increase (Decrease) | 2026 | 2025 | Increase (Decrease) | ||||||||||||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||||||||||||||
| VARIABLE RATE INTEREST EXPENSE | |||||||||||||||||||||||||||||||||||
Unsecured bank credit facilities interest — variable rate (excluding amortization of facility fees and debt issuance costs) | $ | 36 | 12 | 24 | 489 | 23 | 466 | ||||||||||||||||||||||||||||
Amortization of facility fees — Unsecured bank credit facilities | 237 | 237 | — | 471 | 481 | (10) | |||||||||||||||||||||||||||||
Amortization of debt issuance costs — Unsecured bank credit facilities | 265 | 265 | — | 529 | 530 | (1) | |||||||||||||||||||||||||||||
| Total variable rate interest expense | 538 | 514 | 24 | 1,489 | 1,034 | 455 | |||||||||||||||||||||||||||||
| FIXED RATE INTEREST EXPENSE | |||||||||||||||||||||||||||||||||||
Unsecured debt interest (excluding amortization of debt issuance costs) (1) | 13,820 | 12,327 | 1,493 | 27,590 | 24,791 | 2,799 | |||||||||||||||||||||||||||||
| Amortization of debt issuance costs — Unsecured debt | 281 | 189 | 92 | 562 | 390 | 172 | |||||||||||||||||||||||||||||
| Total fixed rate interest expense | 14,101 | 12,516 | 1,585 | 28,152 | 25,181 | 2,971 | |||||||||||||||||||||||||||||
| Total interest | 14,639 | 13,030 | 1,609 | 29,641 | 26,215 | 3,426 | |||||||||||||||||||||||||||||
| Less capitalized interest | (5,649) | (5,340) | (309) | (11,572) | (10,500) | (1,072) | |||||||||||||||||||||||||||||
| TOTAL INTEREST EXPENSE | $ | 8,990 | 7,690 | 1,300 | 18,069 | 15,715 | 2,354 | ||||||||||||||||||||||||||||
(1)Includes interest on the Company’s unsecured debt with fixed interest rates per the debt agreements or effectively fixed interest rates due to interest rate swaps, as discussed in Note 14 in the Notes to Consolidated Financial Statements.
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The Company’s variable rate interest expense increased by $24,000 and $455,000 for the three and six months ended June 30, 2026, respectively, as compared to the same periods in 2025. The increase was primarily due to an increase in average borrowings, partially offset by a decrease in the Company’s weighted average variable interest rates, as shown in the following table:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||||||||||||||
| 2026 | 2025 | Increase (Decrease) | 2026 | 2025 | Increase (Decrease) | ||||||||||||||||||||||||||||||
| (In thousands, except rates of interest) | |||||||||||||||||||||||||||||||||||
Average borrowings on unsecured bank credit facilities — Variable rate | $ | 3,292 | 937 | 2,355 | 22,321 | 879 | 21,442 | ||||||||||||||||||||||||||||
Weighted average variable interest rates (excluding amortization of facility fees and debt issuance costs) | 4.50 | % | 5.26 | % | 4.42 | % | 5.25 | % | |||||||||||||||||||||||||||
The Company’s fixed rate interest expense increased by $1,585,000 and $2,971,000 for the three and six months ended June 30, 2026, respectively, as compared to the same periods in 2025, primarily as a result of new unsecured debt obtained during the year ended December 31, 2025:
| NEW UNSECURED DEBT IN 2025 | Margin | Effectively Fixed Interest Rate | Date Obtained | Maturity Date | Principal Amount | |||||||||||||||||||||||||||
| (In thousands) | ||||||||||||||||||||||||||||||||
$100 Million Senior Unsecured Term Loan (1) | 0.85% | 4.11% | 11/19/2025 | 04/30/2030 | $ | 100,000 | ||||||||||||||||||||||||||
$150 Million Senior Unsecured Term Loan (1) | 0.85% | 4.15% | 11/19/2025 | 03/14/2031 | 150,000 | |||||||||||||||||||||||||||
Weighted Average Interest Rate/Total Principal Amount for 2025 | 4.13% | $ | 250,000 | |||||||||||||||||||||||||||||
(1)The interest rate on this unsecured term loan is comprised of Daily Secured Overnight Financing Rate (“SOFR”) plus a margin which is subject to a pricing grid for changes in the Company’s coverage ratings. The Company entered into interest rate swap agreements (further described in Note 14 in the Notes to Consolidated Financial Statements) to convert the loan’s SOFR rate to an effectively fixed interest rate. The interest rate in the table above is the effectively fixed interest rate for the loan, including the effect of the interest rate swaps, as of June 30, 2026.
The increase in fixed rate interest expense was partially offset by unsecured debt repayments during the year ended December 31, 2025:
UNSECURED DEBT REPAID IN 2025 | Interest Rate | Date Repaid | Payoff Amount | |||||||||||||||||
| (In thousands) | ||||||||||||||||||||
| $50 Million Senior Unsecured Term Loan | 1.58% | 03/18/2025 | $ | 50,000 | ||||||||||||||||
| $20 Million Senior Unsecured Notes | 3.80% | 08/28/2025 | 20,000 | |||||||||||||||||
| $25 Million Senior Unsecured Notes | 3.97% | 10/01/2025 | 25,000 | |||||||||||||||||
| $50 Million Senior Unsecured Notes | 3.99% | 10/07/2025 | 50,000 | |||||||||||||||||
Weighted Average Effectively Fixed Interest Rate and Total Payoff Amount for 2025 | 3.13% | $ | 145,000 | |||||||||||||||||
EastGroup did not obtain, repay or refinance any unsecured debt during the first six months of 2026. In November 2025, the Company entered into amendments related to five senior unsecured term loans totaling $475,000,000, which reduced the credit spread by 10 basis points on each loan. EastGroup’s financing and debt maturities are further described in Liquidity and Capital Resources.
Interest costs during the period of construction of real estate properties are capitalized and offset against interest expense. Capitalized interest increased by $309,000 and $1,072,000 during the three and six months ended June 30, 2026, as compared to the same periods of 2025, due to changes in development activity and spending.
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Real Estate Improvements
Real estate improvements for EastGroup’s operating properties for the three and six months ended June 30, 2026 and 2025 were as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||||||||
| Estimated Useful Life | 2026 | 2025 | 2026 | 2025 | |||||||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||||||||
| Upgrade on acquisitions | 40 years | $ | 8 | 10 | 49 | 62 | |||||||||||||||||||||||
| Tenant improvements: | |||||||||||||||||||||||||||||
| New tenants | Lease term | 4,345 | 6,041 | 8,218 | 11,548 | ||||||||||||||||||||||||
| Renewal tenants | Lease term | 660 | 1,058 | 2,323 | 2,469 | ||||||||||||||||||||||||
| Building improvements | 5-40 years | 3,325 | 3,699 | 5,434 | 9,231 | ||||||||||||||||||||||||
| Roofs | 5-15 years | 2,751 | 4,228 | 6,058 | 10,021 | ||||||||||||||||||||||||
| Parking lots | 3-5 years | 1,334 | 1,715 | 3,408 | 2,515 | ||||||||||||||||||||||||
| Other | 5 years | 1,296 | 1,696 | 2,117 | 2,854 | ||||||||||||||||||||||||
Total real estate improvements (1) | $ | 13,719 | 18,447 | 27,607 | 38,700 | ||||||||||||||||||||||||
(1)Reconciliation of Total real estate improvements to Real estate improvements on the Consolidated Statements of Cash Flows:
| Six Months Ended June 30, | ||||||||||||||
| 2026 | 2025 | |||||||||||||
| (In thousands) | ||||||||||||||
| Total real estate improvements | $ | 27,607 | 38,700 | |||||||||||
| Change in real estate property payables | 845 | (1,230) | ||||||||||||
| Change in construction in progress | 563 | 6,532 | ||||||||||||
Real estate improvements on the Consolidated Statements of Cash Flows | $ | 29,015 | 44,002 | |||||||||||
Capitalized Leasing Costs
The Company’s leasing costs (principally third party commissions) are capitalized and included in Other assets, net. The costs are amortized over the terms of the associated leases, and the amortization is included in Depreciation and amortization expense. Capitalized leasing costs for the three and six months ended June 30, 2026 and 2025 were as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||||||||
| Estimated Useful Life | 2026 | 2025 | 2026 | 2025 | |||||||||||||||||||||||||
| (In thousands) | |||||||||||||||||||||||||||||
| Development and value-add | Lease term | $ | 4,186 | 1,282 | 5,695 | 3,369 | |||||||||||||||||||||||
| New tenants | Lease term | 3,132 | 2,876 | 4,696 | 7,290 | ||||||||||||||||||||||||
| Renewal tenants | Lease term | 4,809 | 2,159 | 7,827 | 6,227 | ||||||||||||||||||||||||
Total capitalized leasing costs (1) | $ | 12,127 | 6,317 | 18,218 | 16,886 | ||||||||||||||||||||||||
| Amortization of leasing costs | $ | 7,535 | 6,852 | 14,789 | 13,846 | ||||||||||||||||||||||||
(1)Reconciliation of Total capitalized leasing costs to Leasing commissions on the Consolidated Statements of Cash Flows:
| Six Months Ended June 30, | ||||||||||||||
| 2026 | 2025 | |||||||||||||
| (In thousands) | ||||||||||||||
| Total capitalized leasing costs | $ | 18,218 | 16,886 | |||||||||||
| Change in leasing commissions payables | (931) | 565 | ||||||||||||
Leasing commissions on the Consolidated Statements of Cash Flows | $ | 17,287 | 17,451 | |||||||||||
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LIQUIDITY AND CAPITAL RESOURCES
The Company anticipates that its current cash balance, operating cash flows, borrowings under its unsecured bank credit facilities, proceeds from new debt and/or proceeds from the issuance of equity will be adequate for (i) operating and administrative expenses, (ii) normal repair and maintenance expenses at its properties, (iii) debt service obligations, (iv) maintaining compliance with its debt covenants, (v) distributions to stockholders, (vi) capital improvements, (vii) purchases of properties, (viii) development, and (ix) any other normal business activities of the Company, both in the short-term and long-term. The Company expects liquidity sources and needs in the coming year to be consistent in nature with those for the six months ended June 30, 2026.
As market conditions permit, EastGroup issues equity and/or employs fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps, to replace the short-term bank borrowings. The Company believes its current operating cash flow and unsecured bank credit facilities provide the capacity to fund the operations of the Company. The Company also believes it can obtain debt financing and issue common and/or preferred equity.
For future debt issuances, the Company intends to issue primarily unsecured fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps. The Company may also access the public debt or convertible bond markets in the future as a means to raise capital.
As of June 30, 2026, EastGroup had total immediate liquidity of approximately $917,648,000 comprised of $33,382,000 of cash and cash equivalents, $674,663,000 of availability on unsecured credit facilities, and approximately $209,603,000 of gross proceeds available on our outstanding forward equity sale agreements. See further details discussed below.
Net cash provided by operating activities was $301,940,000 for the six months ended June 30, 2026. The primary other sources of cash were borrowings on unsecured bank credit facilities, proceeds from common stock offerings and net proceeds from sales of real estate investments. The Company distributed $166,902,000 in common stock dividends during the six months ended June 30, 2026. Other primary uses of cash were for repayments on unsecured bank credit facilities; the construction and development of properties; purchases of real estate properties; and capital improvements at various properties.
As of June 30, 2026, the Company was contractually obligated to pay the dividend declared in May 2026, which was paid in July 2026. An amount for dividends payable of $84,932,000 was included in Accounts payable and accrued expenses at June 30, 2026, which includes dividends payable on unvested restricted stock of $1,735,000, which are subject to continued service and will be paid upon vesting in future periods.
Scheduled principal payments on long-term debt, including Unsecured debt, net of debt issuance costs (not including Unsecured bank credit facilities, net of debt issuance costs), as of June 30, 2026, are as follows:
| MATURITY DATES | Weighted Average Interest Rate (1) | Principal Payments Maturing | ||||||||||||
| (In thousands) | ||||||||||||||
| October 10, 2026 | 1.98% | $ | 100,000 | |||||||||||
| December 15, 2026 | 3.75% | 40,000 | ||||||||||||
| March 25, 2027 | 1.70% | 100,000 | ||||||||||||
| August 31, 2027 | 3.89% | 75,000 | ||||||||||||
| Year 2028 | 3.04% | 160,000 | ||||||||||||
| Year 2029 | 3.88% | 155,000 | ||||||||||||
| Year 2030 | 3.83% | 300,000 | ||||||||||||
| Year 2031 and beyond | 3.63% | 685,000 | ||||||||||||
| Total Unsecured Debt | 3.43% | $ | 1,615,000 | |||||||||||
(1)These loans have a fixed interest rate or an effectively fixed interest rate due to interest rate swaps.
The Company currently intends to repay its debt obligations, both in the short-term and long-term, through its operating cash flows, borrowings under its unsecured bank credit facilities, proceeds from new debt (primarily unsecured), and/or proceeds from the issuance of equity.
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The Company has a $625,000,000 unsecured bank credit facility with a group of 10 banks, which has a maturity date of July 31, 2028. As of June 30, 2026, the interest rate was 4.379% with no outstanding balance. The Company also has a $50,000,000 unsecured bank credit facility with a maturity date of July 31, 2028. As of June 30, 2026, the interest rate was 4.395% with no outstanding balance. The Company’s unsecured bank credit facilities are further discussed in Note 10 in the Notes to Consolidated Financial Statements.
In February 2026, Moody’s Ratings upgraded EastGroup's issuer rating to Baa1, outlook stable from Baa2, outlook positive. For both unsecured bank credit facilities, the margin and facility fee are subject to changes in the Company's credit ratings.
On December 5, 2025, we established an ATM common stock offering program pursuant to which we are able to sell, from time to time, shares of our common stock having an aggregate gross sales price of up to $1,000,000,000 (the “Current ATM Program”). The Current ATM Program replaced our previous $1,000,000,000 ATM program, which was established on October 25, 2024, under which we had sold shares of our common stock having an aggregate gross sales price of $479,899,000 through December 5, 2025.
In connection with the Current ATM Program, we may sell shares of our common stock through sales agents or through certain financial institutions acting as forward counterparties whereby, at our discretion, the forward counterparties, or their agents or affiliates, may borrow from third parties and subsequently sell shares of our common stock. The use of a forward equity sale agreement allows us to lock in a share price on the sale of shares of our common stock but defer settling and receiving the proceeds from the sale of shares until a later date. Additionally, the forward price that we expect to receive upon settlement of an agreement will be subject to adjustment for (i) a floating interest rate factor equal to a specified daily rate less a spread, (ii) the forward purchaser’s stock borrowing costs and (iii) scheduled dividends during the term of the agreement.
During the six months ended June 30, 2026, EastGroup sold, and subsequently settled the issuance of, 365,620 shares of common stock directly through sales agents under its Current ATM program at a weighted average price of $191.46 per share, providing aggregate net proceeds to the Company of $69,300,000.
During the six months ended June 30, 2026, EastGroup entered into forward equity sale agreements with certain financial institutions acting as forward counterparties under the Current ATM Program with respect to 1,040,457 shares of common stock with an initial weighted average forward price of $201.45 per share. The Company did not receive any proceeds from the sale of common shares by the forward counterparties at the time it entered into forward equity sale agreements.
As of July 21, 2026, the Company had 1,040,457 shares of common stock, or approximately $207,051,000 of net proceeds, based on a weighted average forward price of $199.00 per share, available for settlement before the applicable settlement periods expire, which occur between March and June 2027. Also as of July 21, 2026, approximately $720,397,000 of common stock remains available to be sold under the Current ATM Program. Future sales, if any, will depend on a variety of factors, including among others, market conditions, the trading price of our common stock, determinations by us of the appropriate sources of funding for us and potential uses of funding available to us.
EastGroup’s other material cash requirements from known contractual and other obligations, including real estate property obligations, development and value-add obligations and tenant improvements as of December 31, 2025, did not materially change during the six months ended June 30, 2026.
The Company has no material off-balance sheet arrangements that have had or are reasonably likely to have a material current or future effect on its financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
The Company’s management considers the following accounting policies and estimates to be critical to the reported operations of the Company.
Acquisition and Development of Real Estate Properties
The FASB Codification provides guidance on how to properly determine the allocation of the purchase price among the individual components of both the tangible and intangible assets based on their respective fair values. Factors considered by management in allocating the cost of the properties acquired include an estimate of carrying costs during the expected lease-up periods considering current market conditions and costs to execute similar leases. The allocation to tangible assets (land, building and improvements) is based upon management’s determination of the value of the property as if it were vacant using discounted cash flow models. Land is valued using comparable land sales specific to the applicable market, provided by a third
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party. The Company determines whether any financing assumed is above or below market based upon comparison to similar financing terms for similar properties. The cost of the properties acquired may be adjusted based on indebtedness assumed from the seller that is determined to be above or below market rates.
The purchase price is also allocated among the following categories of intangible assets: the above or below market component of in-place leases and the value of leases in-place at the time of acquisition. The value allocable to the above or below market component of an acquired in-place lease is determined based upon the present value (using a discount rate reflecting the risks associated with the acquired leases) of the difference between (i) the contractual amounts to be paid pursuant to the lease over its remaining term and (ii) management’s estimate of the amounts that would be paid using current market rents over the remaining term of the lease. The amounts allocated to above and below market lease intangibles are included in Other assets, net and Other liabilities, respectively, on the Consolidated Balance Sheets and are amortized to rental income over the remaining terms of the respective leases. In-place lease intangibles are valued based upon management’s assessment of factors such as an estimate of forgone rents and avoided leasing costs during the expected lease-up periods considering current market conditions and costs to execute similar leases. These intangible assets are included in Other assets, net on the Consolidated Balance Sheets and are amortized over the remaining term of the existing lease.
The significance of this accounting policy will fluctuate given the transaction activity during the period.
For properties included in Development and value-add properties, costs associated with development (i.e., land, construction costs, interest expense, property taxes and other costs associated with development) are aggregated into the total capitalized costs of the property. Included in these costs are management’s estimates for the portions of internal costs (primarily personnel costs) deemed related to such development activities. The internal costs are allocated to specific development properties based on development activity.
RECENT ACCOUNTING PRONOUNCEMENTS
See Note 21 in the Notes to Consolidated Financial Statements.
ITEM 3.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company is exposed to interest rate changes primarily as a result of its unsecured bank credit facilities and long-term debt maturities. This debt is used to maintain liquidity and fund capital expenditures and expansion of the Company’s real estate investment portfolio and operations. The Company’s objective for interest rate risk management is to limit the impact of interest rate changes on earnings and cash flows and to lower its overall borrowing costs. The Company has two variable rate unsecured bank credit facilities as discussed under Liquidity and Capital Resources. As market conditions permit, EastGroup issues equity and/or employs fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps, to replace the short-term bank borrowings. The Company’s interest rate swaps are discussed in Note 14 in the Notes to Consolidated Financial Statements.
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The table below presents the principal payments due and weighted average interest rates, which include the impact of interest rate swaps, for both the fixed-rate and variable-rate debt as of June 30, 2026.
July – December 2026 | 2027 | 2028 | 2029 | 2030 | Thereafter | Total | Fair Value | |||||||||||||||||||||||||||||||||||||||||||
Unsecured bank credit facilities — Variable rate (in thousands) | $ | — | — | — | (1) | — | — | — | — | — | (2) | |||||||||||||||||||||||||||||||||||||||
| Weighted average interest rate | — | — | 4.39 | % | (3) | — | — | — | 4.39 | % | ||||||||||||||||||||||||||||||||||||||||
Unsecured debt — Fixed rate (in thousands) | $ | 140,000 | 175,000 | 160,000 | 155,000 | 300,000 | 685,000 | 1,615,000 | 1,539,148 | (4) | ||||||||||||||||||||||||||||||||||||||||
| Weighted average interest rate | 2.49 | % | 2.64 | % | 3.04 | % | 3.88 | % | 3.83 | % | 3.63 | % | 3.43 | % | ||||||||||||||||||||||||||||||||||||
(1)The variable-rate unsecured bank credit facilities mature in July 2028 and, as of June 30, 2026, have zero drawn on both the $625,000,000 unsecured bank credit facility and the $50,000,000 unsecured bank credit facility. These balances fluctuate based on Company operations and capital activity, as discussed in Liquidity and Capital Resources.
(2)The fair value of the Company’s variable rate debt is estimated by discounting expected cash flows at current market rates, excluding the effects of debt issuance costs.
(3)Represents the weighted average interest rate for the Company’s variable rate unsecured bank credit facilities as of June 30, 2026.
(4)The fair value of the Company’s fixed-rate debt, including variable-rate debt that has been swapped to an effectively fixed rate through the use of interest rate swaps, is estimated by discounting expected cash flows at the rates currently offered to the Company for debt of the same remaining maturities, as advised by the Company’s bankers, excluding the effects of debt issuance costs.
As the table above incorporates only those exposures that existed as of June 30, 2026, it does not consider those exposures or positions that could arise after that date. Assuming there was a $100,000,000 balance on the unsecured bank credit facilities, and if interest rates change by 10% or approximately 44 basis points, interest expense and cash flows would increase or decrease by approximately $439,000 annually. This does not include variable-rate debt that has been effectively fixed through the use of interest rate swaps.
Most of the Company’s leases include scheduled rent increases. Additionally, most of the Company’s leases require the tenants to pay their pro rata share of operating expenses, including real estate taxes, insurance and common area maintenance, thereby reducing the Company’s exposure to increases in operating expenses resulting from inflation or other factors. In the event inflation causes increases in the Company’s general and administrative expenses or the level of interest rates, such increased costs would not be passed through to tenants and could adversely affect the Company’s results of operations.
EastGroup’s financial results are affected by general economic conditions in the markets in which the Company’s properties are located. The state of the economy or other adverse changes in general or local economic conditions could result in the inability of some of the Company’s existing tenants to make lease payments and may therefore result in uncollectible rent, reducing Income from real estate operations. It may also impact the Company’s ability to (i) renew leases or re-lease space as leases expire, or (ii) lease development space. In addition, an economic downturn or recession could also lead to an increase in overall vacancy rates or a decline in rents the Company can charge to re-lease properties upon expiration of current leases. In all of these cases, EastGroup’s cash flows would be adversely affected.
ITEM 4.CONTROLS AND PROCEDURES.
(i) Disclosure Controls and Procedures.
The Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures pursuant to Exchange Act Rules 13a-15 and 15d-15. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that, as of June 30, 2026, the Company’s disclosure controls and procedures were effective in timely alerting them to material information relating to the Company (including its consolidated subsidiaries) required to be included in the Company’s periodic SEC filings.
(ii) Changes in Internal Control Over Financial Reporting.
There was no change in the Company’s internal control over financial reporting during the Company’s second fiscal quarter ended June 30, 2026, that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
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PART II. OTHER INFORMATION.
ITEM 1. LEGAL PROCEEDINGS.
The Company is not presently involved in any litigation nor, to its knowledge, is any litigation threatened against the Company or its properties, other than routine litigation arising in the ordinary course of business and other actions not deemed to be material. Management believes that any such matters will not have a material adverse effect on the Company’s financial condition or results of operations, individually or in the aggregate. Substantially all of these matters are anticipated to be covered by the Company’s liability insurance. However, the Company cannot predict the outcome of any litigation with certainty, and some lawsuits, claims or proceedings may be disposed of unfavorably to the Company, which could materially affect its financial condition or results of operations.
ITEM 1A. RISK FACTORS.
There have been no material changes to the risk factors disclosed in EastGroup’s Form 10-K for the year ended December 31, 2025, except to the extent factual information disclosed elsewhere in this Form 10-Q relates to such risk factors. For a full description of these risk factors, please refer to “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2025.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
| Period | Total Number of Shares Purchased (1) | Average Price Paid Per Share | Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs | Maximum Number of Shares That May Yet Be Purchased Under the Plans or Programs | ||||||||||||||||||||||
| April 1, 2026 through April 30, 2026 | 32 | $ | 192.92 | — | — | |||||||||||||||||||||
| May 1, 2026 through May 31, 2026 | 32 | 198.34 | — | — | ||||||||||||||||||||||
| June 1, 2026 through June 30, 2026 | 31 | 197.23 | — | — | ||||||||||||||||||||||
| Total | 95 | $ | 196.15 | — | ||||||||||||||||||||||
(1) As permitted under the Company’s equity compensation plan, these shares were withheld by the Company to satisfy the tax withholding obligations in connection with the issuance of shares of common stock.
ITEM 3.DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4.MINE SAFETY DISCLOSURES.
Not applicable.
ITEM 5.OTHER INFORMATION.
During the three months ended June 30, 2026, none of the Company’s directors or officers (as defined in Rule 16a-1(f) of the Exchange Act) adopted, terminated or modified a Rule 10b5-1 trading arrangement or non-Rule 10b5-1 trading arrangement (as such terms are defined in Item 408 of Regulation S-K).
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ITEM 6.EXHIBITS.
The following exhibits are included in or incorporated by reference into this Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2026: | ||||||||
| Exhibit Number | Description | |||||||
10.1* | EastGroup Properties, Inc. Director Compensation Program Including the Independent Director Compensation Policy, as amended and restated as of May 21, 2026, pursuant to the EastGroup Properties, Inc. 2023 Equity Incentive Plan (filed herewith). | |||||||
10.2* | Form of Severance and Change in Control Agreement, entered into by and between the Company and each of Todd A. Johnson and James J. Traynor (filed herewith). | |||||||
Amended and Restated Agreement of Limited Partnership of EastGroup Properties L.P., dated as of June 4, 2026, by and among EastGroup Properties, Inc. and EastGroup Properties General Partners, Inc. (filed herewith). | ||||||||
Rule 13a-14(a)/15d-14(a) Certifications (pursuant to Section 302 of the Sarbanes-Oxley Act of 2002) of Marshall A. Loeb, Chief Executive Officer (filed herewith). | ||||||||
Rule 13a-14(a)/15d-14(a) Certifications (pursuant to Section 302 of the Sarbanes-Oxley Act of 2002) of Staci H. Tyler, Chief Financial Officer (filed herewith). | ||||||||
Section 1350 Certifications (pursuant to Section 906 of the Sarbanes-Oxley Act of 2002) of Marshall A. Loeb, Chief Executive Officer (furnished herewith). | ||||||||
Section 1350 Certifications (pursuant to Section 906 of the Sarbanes-Oxley Act of 2002) of Staci H. Tyler, Chief Financial Officer (furnished herewith). | ||||||||
| 101.1.SCH | Inline XBRL Taxonomy Extension Schema Document (filed herewith). | |||||||
| 101.2.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document (filed herewith). | |||||||
| 101.3.DEF | Inline XBRL Taxonomy Extension Definition Linkbase Document (filed herewith). | |||||||
| 101.4.LAB | Inline XBRL Taxonomy Extension Label Linkbase Document (filed herewith). | |||||||
| 101.5.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase Document (filed herewith). | |||||||
| 104 | Cover Page Interactive Data File (formatted as inline XBRL with applicable taxonomy extension information contained in Exhibits 101.) (filed herewith). | |||||||
* Indicates a management contract or any compensatory plan, contract or arrangement.
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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, thereunto duly authorized.
Date: July 22, 2026
| EASTGROUP PROPERTIES, INC. | |||||
| /s/ MICHELLE RAYNER | |||||
| Michelle Rayner | |||||
| Senior Vice President and Chief Accounting Officer | |||||
| /s/ STACI H. TYLER | |||||
| Staci H. Tyler | |||||
| Executive Vice President, Chief Financial Officer and Treasurer | |||||
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Exhibit 10.1
Director Compensation Program
including the
Independent Director Compensation Policy
Unless the context otherwise requires, all capitalized terms used herein shall have the respective meanings assigned to them in the EastGroup Properties, Inc. 2023 Equity Incentive Plan (the “Plan”).
EQUITY AWARDS
The following shall constitute the equity awards under the Independent Director Compensation Policy under the Plan:
Initial Share Award
The Company shall automatically award each new Non-Employee Director appointed or elected to the Board an award of a number of Restricted Shares equal to $25,000 divided by the Fair Market Value of a share of Stock on the effective date of their appointment or election. The Company shall issue such number of Restricted Shares, and the grant shall be effective, on the fifth business day following the effective date of the election or appointment. If a fraction results, the number of Restricted Shares shall be rounded up to the next whole number. These Restricted Shares shall vest in full on the one-year anniversary of the date of grant, subject to such Non-Employee Director’s continued service on the Board through such vesting date.
Annual Retainer Share Award
(a) Each year, the Company shall automatically award Restricted Shares to each Non-Employee Director who has been elected or reelected as a member of the Board at the annual meeting (the “Annual Retainer Share Award”). The number of Restricted Shares shall be equal to $145,000 divided by the Fair Market Value of a share of Stock on the date of the applicable annual meeting. If a fraction results, the number of Restricted Shares shall be rounded up to the next whole number. Each Annual Retainer Share Award, beginning with the award granted as of the date of the 2023 annual meeting, shall vest in full on the earlier of the one-year anniversary of the date of grant or the date of the next annual meeting following the date of grant, subject to the applicable Non-Employee Director’s continued service on the Board through such vesting date.
(b) If a Non-Employee Director is elected or appointed to the Board other than at an annual meeting of the Company and has not received a Restricted Share award pursuant to paragraph (a) during the twelve
Exhibit 10.1
months preceding election or appointment, the Company shall automatically award to such Director a number of Restricted Shares that is equal to the amount determined pursuant to paragraph (a) (but based on the Fair Market Value of a share of Stock on the date of election or appointment rather than the date of grant) multiplied by a fraction, the numerator of which is 365 minus the number of days between the adjournment of the last annual meeting and the effective date of the appointment or election, and the denominator of which is 365. If a fraction results, the number of Restricted Shares shall be rounded up to the next whole number.
(c) The Company shall issue the Restricted Shares awarded under paragraphs (a) or (b) above, and the grant of such Restricted Shares shall be effective, on the fifth business day following the effective date of the election, reelection or appointment.
Dividends
Cash dividends paid by the Company on Restricted Shares granted to Non-Employee Directors hereunder during the vesting period shall accrue and shall not be paid to the Non-Employee Director until and only to the extent the Restricted Shares vests.
CASH PAYMENTS
In addition to equity awards under the Plan, Non-Employee Directors shall be entitled to the following payments in cash:
Annual Cash Retainer
Each Non-Employee Director will be paid an annual cash retainer of $80,000. The chairperson of the Audit Committee will receive an additional annual cash retainer in the amount of $30,000 and members of the Audit Committee will receive an additional annual cash retainer in the amount of $12,500. The chairperson of the Compensation Committee will receive an additional annual cash retainer in the amount of $20,000 and members of the Compensation Committee will receive an additional annual cash retainer in the amount of $10,000. The chairperson of the Nominating and Corporate Governance Committee will receive an additional annual cash retainer in the amount of $20,000 and members of the Nominating and Corporate Governance Committee will receive an additional annual cash retainer in the amount of $10,000. Members of the Investment Committee will receive an additional annual cash retainer in the amount of $6,000. The Chairperson of the Board will receive an additional $85,000 annual cash retainer. Annual cash retainers will be paid quarterly in arrears and will be pro-rated based on the number of actual days served by the director during the year.
Revised: May 21, 2026
Exhibit 10.2
SEVERANCE AND CHANGE IN CONTROL AGREEMENT
AGREEMENT by and between EastGroup Properties, Inc., a Maryland corporation (the “Company”), with offices at 400 W Parkway Place, Suite 100, Ridgeland, Mississippi 39157, and _____________ (the “Executive”), effective as of __________ (the “Effective Date”).
WHEREAS, the Company recognizes that the current business environment makes it difficult to attract and retain highly qualified executives unless a certain degree of security can be offered to such individuals against organizational and personnel changes that frequently follow changes in control of an organization; and
WHEREAS, even rumors of acquisitions or mergers may cause executives to consider major career changes in an effort to assure financial security for themselves and their families; and
WHEREAS, the Company desires to assure fair treatment of its executives in the event of a Change in Control (as defined below) and to allow them to make critical career decisions without undue time pressure and financial uncertainty, thereby increasing their willingness to remain with the Company notwithstanding the outcome of a possible Change in Control transaction; and
WHEREAS, the Company recognizes that its executives will be involved in evaluating or negotiating any offers, proposals, or other transactions that could result in Changes in Control of the Company and believes that it is in the best interest of the Company and its stockholders for such executives to be in a position, free from personal financial and employment considerations, to be able to assess objectively and pursue aggressively the interests of the Company’s security holders in making these evaluations and carrying on such negotiations; and
WHEREAS, the Board of Directors (the “Board”) of the Company believes it is essential to provide the Executive with compensation arrangements upon a Change in Control that provide the Executive with individual financial security and that are competitive with those of other corporations, and, to accomplish these objectives, the Compensation Committee has caused the Company to enter into this Agreement.
NOW THEREFORE, the parties, for good and valuable consideration and intending to be legally bound, agree as follows:
1.Operation and Term of Agreement. This Agreement shall be effective immediately upon its execution. This Agreement may be terminated by the Company upon 24 months’ advance written notice to the Executive; provided, however, that after a Change in Control of the Company during the term of this Agreement, this Agreement shall remain in effect until all of the obligations of the parties under the Agreement are satisfied and the Protection Period (as defined below) has expired. Prior to a Change in Control this Agreement shall immediately terminate upon Termination of the Executive’s employment or upon the Executive’s ceasing to be an elected officer of the Company, except in the case of such Termination under circumstances set forth in Section 2(g), 3, or 4 below.
2.Certain Definitions. The following words and phrases shall have the meanings given for the purposes of this Agreement:
(a) “Average Annual Compensation” shall mean an amount equal to the annual average of the sums of (i) the Executive’s annual base salary from the Company plus (ii) the amount of cash bonus paid by the Company to the Executive, in each case for the three calendar years that ended immediately before (or, if applicable, coincident with) a specified date, provided that: (A) any such year in which the Executive was not employed by the Company shall be excluded from the averaging period; and (B) the base salary and cash bonus for any such year that reflects a partial year of employment shall be annualized.
(b)“Breach of Duty” shall mean (i) the Executive’s willful misconduct in the performance of his duties toward the Company; or (ii) the commission or omission of any act by the Executive that constitutes on the part of the Executive fraud or dishonesty toward the Company; provided, however, that “Breach of Duty” shall not include the Executive’s lack of professional qualifications. For purposes of this Agreement, an act, or failure to act, on the Executive’s part shall be considered “willful” only if done, or omitted, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Executive’s employment shall not be deemed to have been Terminated for “Breach of Duty” unless the Company shall have given or delivered to the Executive (A) reasonable notice setting forth the reasons for the Company’s intention to Terminate the Executive’s employment for “Breach of Duty”; (B) a reasonable opportunity, at any time during the 30-day period after the Executive’s receipt of such notice, for the Executive, together with his counsel, to be heard before the Board; and (C) a Notice of Termination (as defined in Section 13 below) stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Executive was guilty of the conduct set forth in clauses (i) or (ii) of the first sentence of this Section 2(b).
(c)“Cause” shall mean (i) the continued failure by the Executive to perform his material responsibilities and duties toward the Company (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness); (ii) the engaging by the Executive in willful or reckless conduct that is demonstrably injurious to the Company monetarily or otherwise; (iii) the Executive’s conviction, entry of a plea of nolo contendere, or admission of guilt, for any felony or any lesser crime if such lesser crime involves fraud or dishonesty, moral turpitude, or any conduct that adversely affects the business or reputation of the Company, (iv) the commission or omission of any act by the Executive that constitutes on the part of the Executive fraud, dishonesty, or malfeasance, misfeasance, or nonfeasance of duty toward the Company; or (v) any other action or conduct by the Executive that is injurious to the Company, its business, or its reputation; provided, however, that “Cause” shall not include the Executive’s lack of professional qualifications. For purposes of this Agreement, an act, or failure to act, on the Executive’s part shall be considered “willful” or “reckless” only if done, or omitted, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company.
(d)“Change in Control” shall mean a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the
2
Company is then subject to such reporting requirements; provided that, without limitation, a Change in Control shall be deemed to have occurred if (i) any person (as such term is used in section 13(d) and 14(d) of the Exchange Act) is or becomes beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 30 percent or more of the combined voting power of the Company’s then outstanding securities; or (ii) during any period of two consecutive years, the following persons (the “Continuing Directors”) cease for any reason to constitute a majority of the Board: individuals who at the beginning of such period constitute the Board and new directors each of whose election to the Board or nomination for election to the Board by the Company’s security holders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved; or (iii) the security holders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation that would result in the voting securities of the Company outstanding immediately before the merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of such surviving entity) a majority of the voting securities of the Company or of such surviving entity outstanding immediately after such merger or consolidation or (B) a merger of consolidation that is approved by a Board having a majority of its members persons who are Continuing Directors, of which Continuing Directors not less than two-thirds have approved the merger or consolidation; or (iv) the security holders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
(e)“Code” shall mean the Internal Revenue Code of 1986, as amended.
(f)“Disability,” for purposes of this Agreement, shall mean total disability as defined in any long-term disability plan sponsored by the Company in which the Executive participates, or, if there is no such plan or it does not define such term, then Disability shall mean the physical or mental incapacity of the Executive that prevents the Executive from substantially performing the duties of the office or position to which the Executive was elected or appointed by the Board for a period of at least 180 days, which incapacity is expected to be permanent and continuous through the Executive’s 65th birthday.
(g)The “Change in Control Date” shall be any date during the term of this Agreement on which a Change in Control occurs. Notwithstanding any contrary provision in this Agreement, if the Executive’s employment or status as an elected officer with the Company is Terminated by the Company within six months before the date on which a Change in Control occurs, and it is reasonably demonstrated that such Termination (i) was at the request of a third party who has taken steps reasonably calculated or intended to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for the purposes of this Agreement the “Change in Control Date” shall mean the date immediately before the date of such Termination.
(h)“Good Reason” means:
(i) the assignment to the Executive within the Protection Period of any duties materially inconsistent with the Executive’s position (including status, offices, titles and reporting
3
requirements, authority, duties, or responsibilities) or any other action that results in a material diminution in such position, authority, duties, or responsibilities;
(ii) a material reduction by the Company in the Executive’s base salary in effect immediately before the beginning of the Protection Period or as increased from time to time after the beginning of the Protection Period;
(iii)a material reduction by the Company in the Executive’s annual bonus opportunity or in the target level for such bonus or in the level of the Executive’s long term bonus opportunity or equity incentive opportunity, as compared to such opportunity or level in effect immediately before the beginning of the Protection Period;
(iv) the Company’s requiring the Executive, without the Executive’s written consent, to be based at any office or location materially distant from his office location immediately before the beginning of the Protection Period, except for travel reasonably required in the performance of the Executive’s responsibilities;
(v) any purported Termination by the Company of the Executive’s employment for Breach of Duty otherwise than as referred to in Section 2(b) of this Agreement; or
(vi) any failure by the Company to obtain the assumption of the obligations contained in this Agreement by any successor as contemplated in Section 12 of this Agreement; provided, however, that Good Reason shall not exist unless the Executive gives notice to the Company of the existence of a condition described in paragraph (i), (ii), (iii), (iv), (v), or (vi) within 90 days of the initial existence of the condition, and the Company does not remedy the condition within 30 days of receipt of notice from the Executive.
(i)“Parent” means any entity that directly or indirectly through one or more other entities owns or controls more than 50 percent of the voting securities or shares of beneficial interest of the Company.
(j)“Protection Period” means the period beginning on the Change in Control Date and ending on the last day of the 24-calendar month following the Change in Control Date.
(k)“Subsidiary” means a company 50 percent or more of the voting securities of which are owned, directly or indirectly, by the Company.
(l)The words “Terminate” or “Termination” with respect to the Executive’s employment shall refer to the Executive’s separation from service with the Company, as that term is defined in the regulations under section 409A of the Code.
3.Termination Without Cause, not During the Protection Period. Should the Company Terminate the Executive’s employment without Cause (as defined in Section 2(c)), other than during the Protection Period described in Section 2(j), the Company shall pay the amount described in Section 3(a)
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to the Executive and, provided the Executive signs and does not revoke a waiver and release agreement as described in Section 3(c), the Company shall also pay the amount described in Section 3(b):
(a)The Executive’s base salary and vacation pay (for vacation not taken) accrued but unpaid through the date of Termination of employment, to be paid in cash upon the customary pay date.
(b)A lump sum severance payment in an amount equal to the product of 2 times the Executive’s Average Annual Compensation as of the date of Termination, to be paid in cash on the 60th day after the date of Termination.
(c)As a condition of the Company’s obligation to pay the amount described in Section 3(b), the Executive shall execute a waiver and release agreement, in a form satisfactory to the Company and by the time specified by the Company, that releases the Company and all affiliates from any and all claims of any nature whatsoever, including, without limit, any and all statutory claims, and shall not revoke the waiver and release within any revocation period required by law or permitted by the Company.
4.Death During Employment. Should the Executive die while employed by the Company, the Company shall pay the following amounts to the Executive’s estate:
(a) The Executive’s base salary and vacation pay (for vacation not taken) accrued but unpaid through the date of the Executive’s death.
(b)A lump sum death benefit in an amount equal to the Executive’s Average Annual Compensation as of the date of death, to be paid in cash within 60 days of death, provided that, if the 60-day period straddles two calendar years, the Company shall designate the year of payment.
5.Disability. During the first 90 days of a Disability, the Company shall continue to pay the Executive’s salary, and the Executive shall remain in the employ of the Company during that period.
6.Benefits upon Termination under Certain Circumstances During the Protection Period. If the Executive’s employment is Terminated by the Company during the Protection Period other than for Breach of Duty or Disability and other than as a result of the Executive’s death, or if the Executive Terminates his employment during the Protection Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within ten days after the date of Termination the aggregate of the amounts described in paragraphs (a) and (b) and shall provide the benefits described in paragraphs (c), (d), and (e).
(a)The Executive’s base salary and vacation pay (for vacation not taken) accrued but unpaid through the date of Termination of employment; and
(b)A lump sum severance payment in an amount equal to the product of 3 times the Executive’s Average Annual Compensation as of the Change in Control; and
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(c)Upon the date of Termination, all outstanding options issued to the Executive by the Company to purchase shares of the Company’s common stock (“Common Shares”) shall become immediately exercisable, and all stock appreciation rights issued to the Executive by the Company with respect to Common Shares shall become immediately exercisable.
(d)The Company shall provide the Executive with life insurance coverage and health plan coverage substantially comparable to the coverage the Executive was receiving from the Company immediately before Termination of employment; the provision of such coverage will continue until the expiration of the 24- calendar month period following the date of the Termination of the Executive’s employment, or, if earlier, until the date on which the Executive becomes eligible for comparable coverage in connection with subsequent employment (the “Coverage Period”), subject to the following:
(i)For any portion of the Coverage Period (i) that coincides with a period during which COBRA continuation coverage is available to the Executive under the Company’s health plan and (ii) during which health plan coverage is not provided under an insured plan, the Executive shall duly elect and pay for COBRA continuation coverage. The Company’s obligation with respect to health plan coverage is conditioned on the Executive’s duly electing, and then paying for, such COBRA coverage. The Company shall reimburse the Executive for the cost of such COBRA coverage and shall pay such reimbursement upon receipt of reasonable substantiating documentation from the Executive, but in any event not later than the end of the calendar year following the year in which the COBRA expense was incurred.
(ii)For any portion of the Coverage Period during which health plan coverage or life insurance coverage, or both, is or are not available under insured plans covering employees of the Company, except, in the case of health plan coverage, the period covered by paragraph (i), the Company shall, rather than providing such coverage for the Executive, reimburse the Executive for the Executive’s expense of procuring comparable coverage, up to the amount that would be incurred for comparable coverage by an individual of the Executive’s age on a standard risk basis. The Company shall pay such reimbursement promptly upon receipt of reasonable documentation from the Executive, but in any event not later than the end of the calendar year following the year in which the expense was incurred.
(iii)To the extent the Company’s cost of coverage under paragraph (i) or any reimbursement due under paragraph (ii) would be includable in the Executive’s gross income for federal income tax purposes, then the Company’s payment of such cost or reimbursement shall be subject to the provisions of Section 7 (regarding a six-month delay).
(e)All of the Executive’s benefits accrued under any supplemental retirement plans, excess retirement plans, and deferred compensation plans maintained by the Company or any of its Subsidiaries shall become immediately vested in full.
7.Specified Employee - Section 409A Six Month Delay. Notwithstanding any other provision of this Agreement, this Section 7 shall apply if the Executive is a “specified employee” within the meaning of section 409A of the Internal Revenue Code upon the Termination of his employment with the Company. If this Section 7 is applicable, any payment that is deferred compensation for the purposes of section 409A payable on account of separation from service (within the meaning of section
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409A) and that is otherwise due the Executive under this Agreement or any other arrangement during the six-month period following the Executive’s separation from service with the Company shall be accumulated and paid to the Executive, with interest at the rate payable on three-month Treasury bills, on the first day of the seventh full calendar month following such separation from service.
The cost of coverage and reimbursements described in Section 6(d)(iii) shall be considered a payment for the purposes of this Section 7; and accordingly:
(a)The Company shall not provide such coverage for the six-month period following the Executive’s separation from service, if the Executive is then a specified employee, unless and only for so long as the Executive advances to the Company amounts equal to the premiums for such coverage, before the premiums’ due dates. Provided the Executive does so, the Company shall repay the amount of such advances back to the Executive, as if the repayment were accumulated payments under the first paragraph of this section.
(b)If the Executive is a specified employee, the Company shall not pay any reimbursement described in Section 6(d)(iii) during the first six months following the Executive’s separation from service but shall pay those reimbursements as if they were accumulated payments under the first paragraph of this section.
8.Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any benefit, bonus, incentive, or other plans, practices, policies, or programs provided by the Company or any of its Subsidiaries and for which the Executive may qualify, nor shall anything in this Agreement limit or otherwise affect such rights as the Executive may have under any stock option or other agreements with the Company or any of its Subsidiaries. Any amount of vested benefit or any amount to which the Executive is otherwise entitled under any plan, practice, policy, or program of the Company or any of its Subsidiaries shall be payable in accordance with the plan, practice, policy, or program; provided, however, that if the Executive is entitled to benefits under Section 3 or 6, the Executive shall not be entitled to severance pay, or benefits similar to severance pay, under any plan, practice, policy, or program generally applicable to employees of the Company or any of its Subsidiaries. The provision of severance pay or other benefits pursuant to Section 3 or 6 shall not be deemed to be a continuance of the Executive’s employment for any purposes.
9.Full Settlement; No Obligation to Seek Other Employment; Legal Expenses. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations under this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action the Company may have against the Executive or others. The Executive shall not be obligated to seek other employment or take any action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement. The Company agrees to pay all legal fees and expenses the Executive may reasonably incur as a result of any dispute or contest by or with the Company or others regarding the validity or enforceability of, or liability under, any provision of this Agreement, and the Executive agrees that, if the Executive does not obtain a recovery or other relief from the Company as a result of such dispute or contest, the Executive shall repay to the Company 100 percent of the amount paid by the Company toward the Executive’s legal fees and expenses. The Company shall pay or reimburse the Executive for such legal fees and expenses not
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later than December 31 of the calendar year following the calendar year in which the Executive incurred such legal fees and expenses, provided that the Company’s obligation shall be contingent upon the Executive’s provision to the Company, at least 30 days before such date, of
(a)documentation of the fees and expenses incurred and
(b)the Executive’s note, in a form satisfactory to the Company, promising to pay the Company, on demand, if the Executive does not obtain such recovery or relief against the Company, 100 percent of the amount paid by the Company, with interest at the rate payable on three-month Treasury bills.
In any such action brought by the Executive for damages or to enforce any provisions of this Agreement, the Executive shall be entitled to seek both legal and equitable relief and remedies, including, without limitation, specific performance of the Company’s obligations under this Agreement, in the Executive’s sole discretion.
10.Cut Back in Benefits. Notwithstanding any other provision of this Agreement, the cash lump sum payment and other benefits otherwise to be provided pursuant to Section 3 or 6 of this Agreement (the “Severance Benefit”) shall be reduced as described below if the Net After-Tax Benefit (as defined below) the Executive would realize would be greater with the reduction than without the reduction. The Net After-Tax Benefit is the sum of the parachute payments (within the meaning of section 280G of the Code) payable to the Executive under this Agreement and all other plans, practices, policies, or programs of the Company, reduced by the federal, state, and local income taxes payable with respect to the parachute payments and any excise tax imposed on the Executive with respect to the parachute payments under section 4999 of the Code. If the Net After-Tax Benefit would be greater with the reduction, then the Severance Benefit shall be reduced, but only to the extent required to avoid the imposition on the Executive of any excise tax under section 4999 of the Code. Tax counsel designated in the manner described below shall make all determinations required for the purposes of this Section 10, including the determination of which payments or benefits are parachute payments, the value of the parachute payments, the amount of Net After-Tax Benefit realizable with and without a reduction, and the amount of the reduction required to avoid the excise tax. All determinations shall be made in accordance with sections 280G and 4999 and other relevant provisions of the Code. Tax counsel shall be designated as follows: the Executive and the Company shall each designate a party to serve as co-tax counsel. The co-tax counsel shall endeavor to agree upon the determinations required for the purposes of this Section 10, but if they have not done so by the end of the tenth business day following the change in control, the accounting firm that was the independent auditor of the Company immediately before the change in control shall designate a third party to serve as successor tax counsel, and all of its determinations shall prevail. To the extent this section requires a reduction in the Severance Benefit, the Company shall apply the reduction in the following order: first to any cash payments that are parachute payments but not deferred compensation for purposes of section 409A of the Code; next to any cash payments that are parachute payments and deferred compensation for purposes of section 409A; next to the vesting of any stock options, beginning with those granted most recently; and then to the vesting of any stock appreciation rights, beginning with those granted most recently. The Company shall be responsible for payment of the fees charged by all parties serving as tax counsel (whether as co-tax counsel or otherwise) and by the accounting firm for services rendered in connection with this Section.
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11.Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge, or data relating to the Company or any of its Subsidiaries, and their respective businesses, obtained by the Executive during the Executive’s employment by the Company or any of its Subsidiaries and that has not become public knowledge (other than by acts of the Executive or his representatives in violation of this Agreement). After the date of Termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company, communicate or divulge any such information, knowledge, or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this Section 11 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.
12.Successors.
(a)This Agreement is personal to the Executive and shall not be assignable by the Executive other than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives or successors in interest. The Executive may designate a successor or successors in interest to receive any and all amounts due the Executive under this Agreement after the Executive’s death. A designation of a successor in interest shall be made in writing, signed by the Executive, and delivered to the Company pursuant to Section 16(b). This Section 12(a) shall not supersede any designation of beneficiary or successor in interest made by the Executive or provided for under any other plan, practice, policy, or program of the Company.
(b)This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(c)The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company and any Parent of the Company or any successor and without regard to the form of transaction utilized to acquire the business or assets of the Company, to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or parentage had taken place. As used in this Agreement, “Company” shall mean the Company as defined above and any successor to its business or assets as aforesaid (and any Parent of the Company or any successor) that is required by this clause to assume and agree to perform this Agreement or that otherwise assumes and agrees to perform this Agreement.
13.Notice of Termination. Any Termination of the Executive’s employment by the Company for Cause or by the Executive for Good Reason shall be communicated by Notice of Termination to the other party given in accordance with Section 16(b) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for Termination of the Executive’s employment under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such notice, specifies the Termination date (which date shall be not more than fifteen days after the giving of such notice). The failure by the
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Executive to set forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good Reason shall not waive any right of the Executive under this Agreement or preclude the Executive from asserting such fact or circumstance in enforcing his rights
14.Requirements and Benefits if Executive Is Employee of Subsidiary of Company. If the Executive is an employee of any Subsidiary of the Company, he shall be entitled to all of the rights and benefits of this Agreement as though he were an employee of the Company and the term “Company” shall be construed to include the Subsidiary by which the Executive is employed. The Company guarantees the performance of its Subsidiary under this Agreement.
15.Dispute Resolution. The Company and the Executive shall attempt to resolve between them any dispute that arises under this Agreement. If they cannot agree within ten days after either party submits a demand for arbitration to the other party, then the issue shall be submitted to arbitration with each party having the right to appoint one arbitrator and those two arbitrators mutually selecting a third arbitrator. The rules of the American Arbitration Association for the arbitration of commercial disputes shall apply and the decision of two of the three arbitrators shall be final. The arbitrators must reach a decision within 60 days after the selection of the third arbitrator. The arbitration shall take place in Jackson, Mississippi. The arbitrators shall apply Mississippi law. The costs of such arbitration shall be shared equally by the Executive and the Company.
16.Miscellaneous.
(a)This Agreement shall be governed by and construed in accordance with the laws of the State of Mississippi, without reference to principles of conflict of laws. The captions of this Agreement are not part of the Agreement and shall have no force or effect. This Agreement may be amended or modified only by a written agreement executed by the parties or their respective successors and legal representatives.
(b)All notices and other communications under this Agreement shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, to the addresses for each party as first written above or to such other address as either party shall have furnished to the other in writing in accordance with this Section 16. Notices and communications to the Company shall be addressed to the attention of the Company’s Corporate Secretary. Notice and communications shall be effective when actually received by the addressee.
(c)Whenever reference is made in this Agreement to any specific plan or program of the Company, to the extent that the Executive is not a participant in the plan or program or has no benefit accrued under it, whether vested or contingent, as of the Change in Control Date, then such reference shall be null and void and the Executive shall acquire no additional benefit as a result of such reference.
(d)The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
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(e)The Company may withhold from any amounts payable under this Agreement such federal, state, or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(f)The Company’s or the Executive’s failure to insist upon strict compliance with any provision of this Agreement shall not be construed to be a waiver of such provision or any other provision.
(g)Except in the case of Termination of employment or elected officer status under the circumstances set forth in Section 2(g), 3, or 4 above, upon a Termination of the Executive’s employment or upon the Executive’s ceasing to be an elected officer of the Company, in each case, prior to the Change in Control Date, there shall be no further rights under this Agreement.
[Intentionally Left Blank.]
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IN WITNESS WHEREOF, the Executive has set his or her hand to this Agreement and, pursuant to the authorization from the Compensation Committee of the Board of Directors, the Company has caused this Agreement to be executed as of the day and year first above written.
EASTGROUP PROPERTIES, INC.
By: _________________________________
Name:
Title:
By: ________________________________
Name:
Title:
EXECUTIVE
____________________________________
Name:
Address:
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Exhibit 10.3
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
EASTGROUP PROPERTIES, L.P.
Dated as of June 4, 2026
THE PARTNERSHIP INTERESTS ISSUED PURSUANT TO THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES OR “BLUE SKY” LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES OR “BLUE SKY” LAWS, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH PARTNERSHIP INTERESTS ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT.
TABLE OF CONTENTS
Page
ARTICLE 1 — DEFINED TERMS 1
ARTICLE 2 — ORGANIZATIONAL MATTERS 16
Section 2.1 Formation and Continuation 16
Section 2.2 Name 17
Section 2.3 Registered Office and Agent; Principal Office 17
Section 2.4 Power of Attorney 17
Section 2.5 Term 18
Section 2.6 Partnership Interests are Securities 19
ARTICLE 3 — PURPOSE 19
Section 3.1 Purpose and Business 19
Section 3.2 Powers 19
Section 3.3 Partnership Only for Purposes Specified 20
Section 3.4 Representations and Warranties by the Partners 20
ARTICLE 4 — CAPITAL CONTRIBUTIONS 23
Section 4.1 Capital Contributions of the Partners 23
Section 4.2 Issuance of Additional Partnership Interests and Additional Funding 23
Section 4.3 Other Contribution Provisions 26
Section 4.4 No Preemptive Rights 27
Section 4.5 No Interest on Capital 27
Section 4.6 Conversion or Redemption of REIT Shares and Capital Shares 27
Section 4.7 Excess Shares 28
ARTICLE 5 — DISTRIBUTIONS 28
Section 5.1 Distribution of Cash 28
Section 5.2 REIT Distribution Requirements 30
Section 5.3 No Right to Distributions in Kind 30
Section 5.4 Distributions Upon Liquidation 30
Section 5.5 Distributions to Reflect Issuance of Additional Partnership Units 31
ARTICLE 6 — ALLOCATIONS 31
Section 6.1 Capital Account Allocations of Profit and Loss 31
Section 6.2 Capital Accounts 38
Section 6.3 Tax Allocations 39
Section 6.4 Substantial Economic Effect 39
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ARTICLE 7 — MANAGEMENT AND OPERATIONS OF BUSINESS 40
Section 7.1 Management 40
Section 7.2 Certificate of Limited Partnership 46
Section 7.3 Restrictions on General Partner Authority 46
Section 7.4 Reimbursement of the General Partner and the Company 47
Section 7.5 Outside Activities of the General Partner and the Company 48
Section 7.6 Contracts with Affiliates 48
Section 7.7 Indemnification 49
Section 7.8 Liability of the General Partner and the Company 51
Section 7.9 Other Matters Concerning the General Partner and the Company 52
Section 7.10 Title to Partnership Assets 53
Section 7.11 Reliance by Third Parties 54
ARTICLE 8 — RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS 54
Section 8.1 Limitation of Liability 54
Section 8.2 Management of Business 54
Section 8.3 Outside Activities of Limited Partners 55
Section 8.4 Rights of Limited Partners Relating to the Partnership 55
Section 8.5 Redemption Right 56
Section 8.6 Partnership Right to Call Common Units 59
Section 8.7 Rights as Objecting Partner 59
ARTICLE 9 — BOOKS, RECORDS, ACCOUNTING AND REPORTS 59
Section 9.1 Records and Accounting 59
Section 9.2 Taxable Year and Fiscal Year 59
Section 9.3 Reports 59
ARTICLE 10 — TAX MATTERS 60
Section 10.1 Preparation of Tax Returns 60
Section 10.2 Tax Elections 60
Section 10.3 Partnership Representative 61
Section 10.4 Organizational Expenses 64
Section 10.5 Tax Information to Be Provided by Partners 64
ARTICLE 11 — TRANSFERS AND WITHDRAWALS 65
Section 11.1 Transfer 65
Section 11.2 Transfer of the Company’s and General Partner’s Partnership Interest and Limited Partner Interest; Extraordinary Transactions 65
Section 11.3 Limited Partners’ Rights to Transfer 67
Section 11.4 Substituted Limited Partners 68
Section 11.5 Assignees 69
Section 11.6 General Provisions 69
ARTICLE 12 — ADMISSION OF PARTNERS 72
Section 12.1 Admission of Successor General Partner 72
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Section 12.2 Admission of Additional Limited Partners 73
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership 73
ARTICLE 13 — DISSOLUTION, LIQUIDATION AND TERMINATION 73
Section 13.1 Dissolution 73
Section 13.2 Winding Up 74
Section 13.3 Deficit Capital Account Restoration Obligation 75
Section 13.4 Compliance with Timing Requirements of Regulations 76
Section 13.5 Rights of Limited Partners 76
Section 13.6 Notice of Dissolution 76
Section 13.7 Cancellation of Certificate of Limited Partnership 77
Section 13.8 Reasonable Time for Winding-Up 77
Section 13.9 Waiver of Partition 77
Section 13.10 Liability of Liquidator 77
ARTICLE 14 — AMENDMENT OF PARTNERSHIP AGREEMENT;
MEETINGS 77
Section 14.1 Procedures for Actions and Consents of Partners 77
Section 14.2 Amendments 77
Section 14.3 Meetings of the Partners 79
ARTICLE 15 — GENERAL PROVISIONS 81
Section 15.1 Addresses and Notice 81
Section 15.2 Titles and Captions 81
Section 15.3 Pronouns and Plurals 81
Section 15.4 Further Action 81
Section 15.5 Binding Effect 81
Section 15.6 No Third-Party Rights Created Hereby 82
Section 15.7 Waiver 82
Section 15.8 Counterparts 82
Section 15.9 Applicable Law; Waiver of Jury Trial 83
Section 15.10 Invalidity of Provisions 83
Section 15.11 No Rights as Stockholders 83
Section 15.12 Entire Agreement 84
Section 15.13 Limitation To Preserve REIT Status 84
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EXHIBITS
Exhibit A - Notice of Redemption
Exhibit B - LTIP Units
Exhibit C - AOLTIP Units
iv
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
EASTGROUP PROPERTIES, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF EASTGROUP PROPERTIES, L.P., dated as of June 4, 2026, is entered into by and among the General Partner and the Company, as a Limited Partner, together with any other Persons who become Partners in the Partnership as provided herein and whose names are set forth in the Partnership Ledger (each as defined below).
WHEREAS, the Partnership was formed as a limited partnership under the laws of the State of Delaware pursuant to a Certificate of Limited Partnership filed on April 22, 1997.
WHEREAS, EastGroup Properties, Inc., EastGroup Properties General Partners, Inc. and EastGroup Properties Holdings, Inc. entered into that certain Amended and Restated Agreement of Limited Partnership of EastGroup Properties, L.P., dated April 1, 1998 (as amended to date, the “Existing Agreement”)
WHEREAS, pursuant Article 14 of the Existing Agreement, the Partners have approved the amendment and restatement of the Existing Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 - DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
“Act” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended, supplemented or restated from time to time, and any successor to such statute.
“Additional Funds” has the meaning set forth in Section 4.2B hereof.
“Additional Limited Partner” means a Person admitted to the Partnership as a Limited Partner pursuant to Section 4.2 and Section 12.2 hereof.
“Adjusted Capital Account” means the Capital Account maintained for each Partner as of the end of each Partnership taxable year (i) increased by any amounts which such Partner is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and (ii) decreased by the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6). The foregoing
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definition of Adjusted Capital Account is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
“Administrative Expenses” means (i) all administrative and operating costs and expenses incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner or the Company, including any salaries or other payments to directors, officers or employees of the General Partner, the Company, or any Subsidiary of the Company and any accounting and legal expenses of the General Partner, the Company, or any Subsidiary of the Company, which expenses, the Partners have agreed, are expenses of the Partnership and not the General Partner or the Company or any Subsidiary of the Company, and (iii) to the extent not included in clauses (i) or (ii) above, REIT Expenses.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, “control,” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. No officer, director or stockholder of the Company shall be considered an Affiliate of the Company solely as a result of serving in such capacity or being a stockholder of the Company.
“Agreed Value” means the fair market value of a Partner’s non-cash Capital Contribution (net of assumed liabilities) as of the date of contribution as agreed to by such Partner and the General Partner.
“Agreement” means this Amended and Restated Agreement of Limited Partnership, as it may be amended, supplemented and/or restated from time to time, including by way of adoption of a Certificate of Designations, including any exhibits attached hereto.
“AOLTIP Conversion Factor” has the meaning set forth in Section 1.8(e) of Exhibit C hereto.
“AOLTIP Conversion Notice” has the meaning set forth in Section 1.8(a) of Exhibit C hereto.
“AOLTIP Conversion Right” has the meaning set forth in Section 1.8(a) of Exhibit C hereto.
“AOLTIP Conversion Value” has the meaning set forth in Section 1.8(e) of Exhibit C hereto.
“AOLTIP Forced Conversion” has the meaning set forth in Section 1.8(c) of Exhibit C hereto.
“AOLTIP Forced Conversion Event” has the meaning set forth in Section 1.8(c) of Exhibit C hereto.
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“AOLTIP Unit” means a Partnership Unit which is designated as an AOLTIP Unit having the rights, powers, privileges, restrictions, qualifications and limitations set forth in Exhibit C hereof and elsewhere in this Agreement.
“AOLTIP Unit Conversion Date” has the meaning set forth in Section 1.8(d) of Exhibit C hereto.
“AOLTIP Unit Participation Threshold” has the meaning set forth in Section 1.8(e) of Exhibit C hereto.
“AOLTIP Unit Sharing Percentage” means, for an AOLTIP Unit, the percentage that is specified as the AOLTIP Unit Sharing Percentage in the Vesting Agreement or other documentation pursuant to which such AOLTIP Unit is issued or, if no such percentage is specified, 10%.
“Articles of Incorporation” means the Articles of Amendment and Restatement of the Company filed with the Maryland State Department of Assessments and Taxation, as amended or restated from time to time.
“Assignee” means a Person to whom one or more Partnership Units have been transferred in a manner permitted under this Agreement, but who has not become a Substituted Limited Partner, and who has the rights set forth in Section 11.5.
“Book-Up Target” for an LTIP Unit at any time means (i) initially, the Common Unit Economic Balance as determined on the date such LTIP Unit was granted and (ii) thereafter, the remaining amount, if any, required at such time to be allocated to such LTIP Unit for the Economic Capital Account Balance of the holder of such LTIP Unit, to the extent attributable to such LTIP Unit, to be equal to the Common Unit Economic Balance at such time.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to be closed.
“Bylaws” means the Second Amended and Restated Bylaws of the Company, as may be amended, supplemented and/or restated from time to time.
“Capital Account” has the meaning set forth in Section 6.2 hereof.
“Capital Contribution” means, with respect to each Partner, the total amount of cash, cash equivalents, and the Agreed Value of any Property or other asset contributed or deemed to be contributed, as the context requires, to the Partnership by such Partner pursuant to the terms of this Agreement. Any reference to the “Capital Contribution” of a Partner shall include the Capital Contribution made by a predecessor holder of the Partnership Interest of such Partner.
“Capital Share” means a share of any class or series of stock of the Company now or hereafter authorized other than a REIT Share or an Excess Share.
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“Cash Amount” means, with respect to Tendered Units, an amount in cash equal to the Value of the REIT Shares Amount as of the Valuation Date with respect to such Tendered Units; provided that the Cash Amount will be reduced by the amount of any distributions payable with respect to such REIT Shares Amount that have an ex-dividend date after the Valuation Date and a record date before the Specified Redemption Date.
“Certificate of Designations” means an amendment to this Agreement that sets forth the designations, rights, powers, duties and preferences of Holders of any Partnership Interests issued pursuant to Section 4.2, which amendment is in the form of a certificate signed by the General Partner and appended to this Agreement. A Certificate of Designations is not the exclusive manner in which such an amendment may be effected. The General Partner may adopt a Certificate of Designations without the Consent of the Limited Partners to the extent permitted pursuant to Section 14.2 hereof.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the Partnership filed with the office of the Secretary of State of the State of Delaware on April 22, 1997, as amended from time to time in accordance with the terms hereof and the Act.
“Code” means the Internal Revenue Code of 1986, as amended and in effect from time to time or any successor statute thereto, as interpreted by the applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any succeeding law.
“Commission” means the Securities and Exchange Commission.
“Common Unit” means a Partnership Unit other than an LTIP Unit, AOLTIP Unit, Preferred Unit or any other class or series of Partnership Unit established after the date hereof that is not designated as a Common Unit.
“Common Unit Economic Balance” means at any time (i) the Economic Capital Account Balance of the Company at such time but only to the extent attributable to the Company’s ownership of Common Units (other than any Common Units that were previously AOLTIP Units) and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under Section 6.1I, divided by (ii) the number of the Company’s Common Units at such time (other than any Common Units that were previously AOLTIP Units). If the Company’s Economic Capital Account Balance at the time of determination reflects a net reduction as a result of Section 6.1L, for purposes of this definition the Company’s Economic Capital Account Balance shall be the Economic Capital Account Balance it would have been if Section 6.1L had not applied.
“Common Unitholder” means a Partner that holds Common Units, including the Company.
“Company” means EastGroup Properties, Inc., a Maryland corporation.
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“Consent” means the consent to, approval of or vote in favor of a proposed action by a Partner given in accordance with Article 14 hereof.
“Constituent Person” has the meaning set forth in Section 1.10(b) of Exhibit B hereto.
“Conversion Factor” means 1.0; provided that in the event that:
(i) the Company (a) declares or pays a dividend on its outstanding REIT Shares wholly or partly in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares wholly or partly in REIT Shares; (b) splits or subdivides its outstanding REIT Shares or (c) effects a reverse stock split or otherwise combines or reclassifies its outstanding REIT Shares into a smaller number of REIT Shares, then the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction:
(i) the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such purpose that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time), and
(ii) the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination;
(ii) the Company distributes any rights, options or warrants to all holders of its REIT Shares to subscribe for or to purchase or to otherwise acquire REIT Shares (or other securities or rights convertible into, exchangeable for or exercisable for REIT Shares) (other than REIT Shares issuable pursuant to a Qualified DRIP/COPP, as compensation to employees or other service providers or in connection with a “Shareholder Rights Plan,” unless a “triggering event” has occurred thereunder (i.e., if the rights issued pursuant to the Shareholder Rights Plan are no longer “attached” to the REIT Shares and are able to trade independently)) at a price per share less than the Value of a REIT Share on the record date for such distribution (each a “Distributed Right”), then, as of the distribution date of such Distributed Rights or, if later, the time such Distributed Rights become exercisable, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction:
(a) the numerator of which shall be the number of REIT Shares issued and outstanding on the record date (or, if later, the date such Distributed Rights become exercisable) plus the maximum number of REIT Shares purchasable under such Distributed Rights and
(b) the denominator of which shall be the number of REIT Shares issued and outstanding on the record date plus a fraction
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(x) the numerator of which is the minimum aggregate purchase price under such Distributed Rights of the maximum number of REIT Shares purchasable under such Distributed Rights and
(y) the denominator of which is the Value of a REIT Share as of the record date (or, if later, the date such Distributed Rights become exercisable);
provided, however, that, if any such Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the date of distribution of the Distributed Rights, to reflect a reduced maximum number of REIT Shares or any change in the minimum aggregate purchase price for the purposes of the above fractions; and
(iii) the Company, by dividend or otherwise, distributes to all holders of its REIT Shares evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in subsection (i) or (ii) above), which evidences of indebtedness or assets relate to assets not received by the Company or its Subsidiaries pursuant to a pro rata distribution by the Partnership, then the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the close of business on the date fixed for determination of stockholders entitled to receive such distribution by a fraction
(a) the numerator of which shall be such Value of a REIT Share on the date fixed for such determination and
(b) the denominator of which shall be the Value of a REIT Share on the date fixed for such determination less the then fair market value (as determined by the General Partner, whose determination shall be conclusive) of the portion of the evidences of indebtedness or assets so distributed applicable to one REIT Share.
Any adjustment to the Conversion Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. If, however, the General Partner received a Notice of Redemption after the record date, if any, but prior to the effective date of such event, the Conversion Factor shall be determined as if the General Partner had received the Notice of Redemption immediately prior to the record date for such event.
Notwithstanding the foregoing, (A) the Conversion Factor shall not be adjusted in connection with an event described in clauses (i) or (ii) above if, in connection with such event, the Partnership makes a distribution of cash, Partnership Units, REIT Shares and/or rights, options or warrants to acquire Partnership Units and/or REIT Shares with respect to all applicable Common Units or effects a reverse split of, or otherwise combines, the Common Units, as applicable, that is comparable as a whole in all material respects with such event and (B) the General Partner may equitably adjust the Conversion Factor if and to the extent required by other provisions of this Agreement, including Section 7.5.B and Section 11.2, in a manner to avoid unintended dilution or anti-dilution as a result of any transactions in which REIT Shares are issued, redeemed or exchanged without a corresponding issuance, redemption or exchange of Partnership Units at such time.
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“Debt” means, as to any Person, as of any date of determination, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (ii) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds, guarantees and other similar instruments guaranteeing payment or other performance of obligations by such Person; (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof; and (iv) lease obligations of such Person which, in accordance with U.S. GAAP, should be capitalized.
“Delaware Courts” has the meaning set forth in Section 15.9.B hereof.
“Designated Individual” has the meaning set forth in Section 6.1F hereof
“Disregarded Entity” means, with respect to any Person: (a) any Qualified REIT Subsidiary of such Person; (b) any “qualified subchapter S subsidiary” (within the meaning of Section 1361(b)(3)(B) of the Code); (c) any entity owned by such Person that is a disregarded as a separate entity from such Person for U.S. federal income tax purposes under Regulations Section 301.7701-3 or otherwise; or (d) any grantor trust to the extent that such Person is treated as the owner of the assets of such trust for U.S. federal income tax purposes under Sections 671-679 of the Code.
“Distributed Right” has the meaning set forth in the definition of “Conversion Factor.”
“Economic Capital Account Balance”, with respect to a Partner and at any time, means an amount equal to such Partner’s Capital Account balance at such time, plus the amount of its share of any Partner Minimum Gain or Partnership Minimum Gain at such time.
“Equivalent Units” has the meaning set forth in Section 4.6.A hereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Excess Share” means a share of any class or series of stock of the Company now or hereafter authorized that is designated as a share of “Excess Stock” pursuant to the Articles of Incorporation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as such rules and regulations may be amended from time to time.
“Extraordinary Transaction” means, with respect to the Company, the occurrence of one or more of the following events: (i) a merger (including a triangular merger), consolidation or other combination of the Company with or into another Person (other than in connection with a change in the Company’s state of incorporation or organizational form); (ii) the direct or indirect
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sale, lease, exchange or other transfer of all or substantially all of its assets in one transaction or a series of related transactions; (iii) any reclassification, recapitalization or change of its outstanding equity interests (other than a change in par value, or from par value to no par value, or as a result of a split, dividend or similar subdivision); or (iv) the adoption of any plan of liquidation or dissolution of the Company (whether or not in compliance with the provisions of this Agreement).
“Flow-Through Entity” has the meaning set forth in Section 3.4.C hereof.
“Flow-Through Partner” has the meaning set forth in Section 3.4.C hereof.
“Funding Debt” means the incurrence of any Debt for the purpose of providing funds to the Partnership by or on behalf of the Company or any wholly owned subsidiary of the Company.
“General Partner” means EastGroup Properties General Partners, Inc., a wholly-owned subsidiary of the Company, in its capacity as general partner of the Partnership, or any Person who becomes a successor general partner of the Partnership.
“General Partner Interest” means a Partnership Interest held by the General Partner, in its capacity as general partner. A General Partner Interest may be (but is not required to be) expressed as a number of Partnership Units.
“Holder” means each of any Partner or any Assignee owning a Partnership Unit.
“Immediate Family” means with respect to any natural Person, such natural person’s spouse and such natural Person’s natural or adoptive parents, descendants, nephews, nieces, brother and sisters.
“Imputed Underpayment Amount” means (i) any “imputed underpayment” within the meaning of Section 6225 of the Code (or any corresponding or similar provision of U.S. federal, state, local or non-U.S. tax law) paid (or payable) by the Partnership as a result of or pursuant to an adjustment with respect to any Partnership item (including, without limitation, any “partnership-related item” within the meaning of Section 6241(2) of the Code (or any corresponding or similar provision of U.S. federal, state, local or non-U.S. tax law)), including any interest, penalties or additions to tax with respect to any such adjustment and any costs or expenses with respect to any of the foregoing, (ii) any amount not described in clause (i) paid (or payable) by the Partnership as a result of or pursuant to the application of the provisions of Sections 6221-6241 of the Code (or any corresponding or similar provision of U.S. federal, state, local or non-U.S. tax law), including any interest, penalties or additions to tax with respect to such amounts and any costs or expenses with respect to any of the foregoing, and/or (iii) any amount paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Partnership holds (or has held) a direct or indirect interest (other than through entities treated as corporations for U.S. federal income tax purposes) to the extent that the Partnership bears the economic burden of such amounts, whether by law or agreement, as a result of or pursuant to the application of the provisions of Sections 6221-6241 of the Code (or
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any corresponding or similar provision of U.S. federal, state, local or non-U.S. tax law), including any interest, penalties or additions to tax with respect to such amounts and any costs or expenses with respect to any of the foregoing.
“Incapacity” or “Incapacitated” means, (i) as to any Partner who is an individual, death, total physical disability or entry by a court of competent jurisdiction of an order adjudicating him or her incompetent to manage his or her Person or estate; (ii) as to any Partner that is a corporation or limited liability company, the filing of a certificate of dissolution, or its equivalent, or the revocation of its charter; (iii) as to any partnership or limited liability company which is a Partner, the dissolution and commencement of winding up of the partnership or the limited liability company; (iv) as to any Partner that is an estate, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust which is a Partner, the termination of the trust (but not the substitution of a new trustee) or (vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect; (b) the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or similar law now or hereafter in effect has been entered against the Partner; (c) the Partner executes and delivers a general assignment for the benefit of the Partner’s creditors; (d) the Partner files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Partner in any proceeding of the nature described in clause (b) above; (e) the Partner seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Partner or for all or any substantial part of the Partner’s properties; (f) any proceeding seeking liquidation, reorganization or other relief of or against such Partner under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof; (g) the appointment without the Partner’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment; or (h) an appointment referred to in clause (g) above is not vacated within ninety (90) days after the expiration of any such stay.
“Indemnitee” means (i) any Person made a party, or threatened to be made a party, to a proceeding by reason of his, her or its present or former status as (a) the Company (b) the General Partner or (c) a trustee, director or officer of the Partnership, the General Partner or the Company, or a subsidiary of any of the foregoing, as the case may be and (ii) such other Persons (including, without limitation, Affiliates, officers, employees and agents of the Company, the General Partner or the Partnership or any of their respective Subsidiaries or the Partnership Representative or any Designated Individual of the Partnership) as the General Partner may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.
“IRS” means the U.S. Internal Revenue Service.
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“Limited Partner” means any Person named as a Limited Partner in the books and records of the Partnership or any Substituted Limited Partner or Additional Limited Partner, in such Person’s capacity as a Limited Partner of the Partnership.
“Limited Partner Interest” means a Partnership Interest of a Limited Partner in the Partnership representing a fractional part of the Partnership Interests of all Partners and includes any and all benefits to which the Holder of such a Partnership Interest may be entitled, as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partner Interest may be (but is not required to be) expressed as a number of Partnership Units.
“Liquidating Event” has the meaning set forth in Section 13.1.A hereof.
“Liquidating Gains” means any net gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership (including upon the occurrence of any event of liquidation of the Partnership), including but not limited to net gain realized in connection with an adjustment to the book value of Partnership assets under Section 6.2 hereof.
“Liquidating Losses” means any net loss realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership (including upon the occurrence of any event of liquidation of the Partnership), including but not limited to net loss realized in connection with an adjustment to the book value of Partnership assets under Section 6.2 hereof.
“Liquidator” has the meaning set forth in Section 13.2A hereof.
“Loss” has the meaning set forth in Section 6.1F hereof.
“LTIP Unit” means a Partnership Unit which is designated as an LTIP Unit having the rights, powers, privileges, restrictions, qualifications and limitations set forth in Exhibit B hereof and elsewhere in this Agreement. For the avoidance of doubt, an LTIP Unit shall include a Special LTIP Unit and shall not include an AOLTIP Unit.
“LTIP Unit Adjustment Events” has the meaning set forth in Section 1.7 of Exhibit B hereto.
“LTIP Unit Conversion Date” has the meaning set forth in Section 1.8 of Exhibit B hereto.
“LTIP Unit Limited Partner” means any Person that holds LTIP Units and/or AOLTIP Units and is named as an LTIP Unit Limited Partner in the books and records of the Partnership.
“Majority in Interest of the Outside Limited Partners” means Limited Partners (excluding for this purpose (i) any Limited Partnership Interests held by the Company, the General Partner or any Subsidiaries of the Company or the General Partner, (ii) any Person of which the Company or its Subsidiaries directly or indirectly owns or controls more than 50% of the voting
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interests and (iii) any Person directly or indirectly owning or controlling more than 50% of the outstanding interests of the General Partner or the Company) holding in the aggregate more than 50% of the outstanding Partnership Units (other than AOLTIP Units) held by all Limited Partners who are not excluded for the purposes hereof.
“Mandatory Conversion Date” has the meaning set forth in Section 1.8(b) of Exhibit C hereto.
“National Securities Exchange” means an exchange registered with the Commission under Section 6(a) of the Exchange Act or any other exchange (domestic or foreign, and whether or not so registered) designated by the General Partner as a National Securities Exchange.
“Net Realized Gain” means, for a particular period, any excess of (i) the items of gain reflected in the Capital Accounts at any time during such period over (ii) the items of loss reflected in the Capital Accounts at any time during such period, in each case as part of Profit or Loss or otherwise and determined without regard to any items included in the determination of Liquidating Gains or Liquidating Losses for any period.
“Net Realized Loss” means, for a particular period, any excess of (i) the items of loss reflected in the Capital Accounts at any time during such period over (ii) the items of gain reflected in the Capital Accounts at any time during such period, in each case as part of Profit or Loss or otherwise and determined without regard to any items included in the determination of Liquidating Gains or Liquidating Losses for any period.
“New Securities” means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase REIT Shares or Capital Shares, or (ii) any Debt issued by the Company that provides any of the rights described in clause (i).
“Nonrecourse Liability” has the meaning set forth in Regulations Section 1.752-1(a)(2).
“Notice of Redemption” means the Notice of Redemption substantially in the form of Exhibit A to this Agreement.
“Outside Limited Partner” means any Limited Partner other than the Company or any Limited Partner owned directly or indirectly, in whole or in part, by the Company.
“Ownership Limit” means the restriction or restrictions on the ownership and transfer of stock of the Company imposed under the Articles of Incorporation.
“Partner” means a General Partner or a Limited Partner, and “Partners” means the General Partner and the Limited Partners collectively.
“Partner Minimum Gain” means “partner nonrecourse debt minimum gain” within the meaning of Regulations Section 1.704-2(i). A Partner’s share of Partner Minimum Gain shall be determined in accordance with Regulations Section 1.704-2(i)(5).
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“Partnership” means the limited partnership formed under the Act and pursuant to this Agreement and any successor thereto.
“Partnership Interest” means an ownership interest in the Partnership held by either a Limited Partner or the General Partner and includes any and all benefits to which the Holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. There may be one or more classes or series or Partnership Interests as provided in Section 4.2. A Partnership Interest may be expressed as a number of Partnership Units. Unless otherwise expressly provided for by the General Partner at the time of the original issuance of any Partnership Interests, all Partnership Interests (whether of a Limited Partner or a General Partner) shall be of the same class or series. The Partnership Interests represented by the Common Units, LTIP Units and AOLTIP Units, respectively, are each a separate class of Partnership Interest for all purposes of this Agreement.
“Partnership Ledger” means the ledger maintained by the General Partner showing all of the Partners, the Partnership Interests held by each such Partner and each such Partner’s Percentage Interest as of the date of this Agreement, and as updated from time to time by the General Partner.
“Partnership Minimum Gain” has the meaning set forth in Regulations Section 1.704-2(b)(2). A Partner’s share of Partnership Minimum Gain shall be determined in accordance with Regulations Section 1.704-2(g)(1).
“Partnership Record Date” means the record date established by the General Partner for a distribution pursuant to Section 5.1 hereof, which record date shall generally be the same as the record date established by the Company for a distribution to its stockholders of some or all of its portion of such distribution.
“Partnership Representative” has the meaning set forth in Section 10.3.A hereof
“Partnership Unit” or “Unit” means a fractional, undivided share of the Partnership Interests of all Partners issued pursuant to Article 4 (and includes Common Units, LTIP Units, AOLTIP Units, any class or series of Preferred Units and any other class or series of Partnership Units established after the date hereof). The number of Partnership Units outstanding and (in the case of Common Units, LTIP Units, AOLTIP Units and, if and as applicable, any other class or series of Partnership Units established after the date hereof) the Percentage Interest in the Partnership represented by such Partnership Units are set forth in the Partnership Ledger. The Partnership Units shall be uncertificated securities unless the General Partner determines otherwise.
“Partnership Year” means the fiscal year of the Partnership, which shall be the calendar year.
“Percentage Interest” means, with respect to any Partner, the percentage represented by a fraction (expressed as a percentage), the numerator of which is the total number of Common
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Units, LTIP Units and AOLTIP Units then owned by such Partner, and the denominator of which is the total number of Common Units, LTIP Units and AOLTIP Units then owned by all of the Partners; provided that, for purposes of allocations and distributions, (i) prior to the Special LTIP Unit Full Participation Date for any Special LTIP Unit, the Percentage Interest will be calculated by only including in the numerator and denominator a number of such Special LTIP Units equal to the number of such Special LTIP Units outstanding multiplied by the Special LTIP Unit Sharing Percentage for such Special LTIP Units and (ii) the Percentage Interest will be calculated by only including in the numerator and denominator a number of AOLTIP Units equal to the total obtained by multiplying each outstanding AOLTIP Unit by the AOLTIP Unit Sharing Percentage for such AOLTIP Unit.
“Person” means an individual, corporation, partnership (whether general or limited), limited liability company, trust, estate, unincorporated organization, association, custodian, nominee or any other individual or entity in its own or any representative capacity.
“Preferred Unit” means a Limited Partnership Interest (of any series), other than a Common Unit, LTIP Unit or AOLTIP Unit, represented by a fractional, undivided share of the Partnership Interests of all Partners issued hereunder and which is designated as a “Preferred Unit” (or as a particular class or series of Preferred Units) herein and which has the rights, preferences and other privileges designated herein (including by way of a Certificate of Designations). The allocation of Preferred Units among the Partners shall be set forth in the Partnership Ledger.
“Profit” has the meaning set forth in Section 6.1F hereof.
“Property” means any property, asset or other investment in which the Partnership holds a direct or indirect interest, including, without limitation, interests in real property and personal property, including, without limitation, fee interests, interests in ground leases, easements and rights of way, interests in limited liability companies, joint ventures or partnerships, interests in mortgages, and Debt instruments.
“Qualified DRIP/COPP” means a dividend reinvestment plan or a cash option purchase plan of the Company that permits participants to acquire REIT Shares using the proceeds of dividends paid by the Company or cash of the participant, respectively.
“Qualified REIT Subsidiary” means any Subsidiary of the Company that is a “qualified REIT subsidiary” within the meaning of Section 856(i) of the Code.
“Qualified Transferee” means an “Accredited Investor” as defined in Rule 501 promulgated under the Securities Act.
“Redemption Right” has the meaning set forth in Section 8.5A hereof.
“Regulations” means the income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including any corresponding provisions of succeeding regulations).
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“Regulatory Allocations” has the meaning set forth in Section 6.1G hereof.
“REIT” means a real estate investment trust under Sections 856 through 860 of the Code.
“REIT Expenses” means (i) costs and expenses relating to the formation and continuity of existence and operation of the Company and any Subsidiaries (including the General Partner and excluding the Partnership) thereof (which Subsidiaries shall, for purposes hereof, be included within the definition of the Company), including taxes, fees and assessments associated therewith, any and all costs, expenses or fees payable to or paid to any director, officer or employee of the Company in their capacity as such for compensation or indemnification related to their services or association with the Company, (ii) costs and expenses relating to any public offering and registration, or private offering, of securities by the Company and all statements, reports, fees and expenses incidental thereto, including, without limitation, underwriting discounts and selling commissions applicable to any such offering of securities, and any costs and expenses associated with any claims made by any holders of such securities or any underwriters or placement agents thereof, (iii) costs and expenses associated with any repurchase of any securities by the Company, (iv) costs and expenses associated with the preparation and filing of any periodic or other reports and communications by the Company under U.S. federal, state or local laws or regulations, including filings with the Commission, (v) costs and expenses associated with compliance by the Company with laws, rules and regulations promulgated by any regulatory body, including the Commission and any securities exchange, (vi) costs and expenses associated with any 401(k) plan, incentive plan, bonus plan or other plan providing for compensation for the employees of the Company, (vii) costs and expenses incurred by the Company and the General Partner relating to any issuing or redemption of Partnership Interests and (viii) all other operating or administrative costs of the Company or any Subsidiary, including the General Partner, incurred in the ordinary course of its business for itself or on behalf of or in connection with the Partnership, including, without limitation, the costs of (x) engaging for the Company or its directors, officers or employees consultants and advisors, (y) paying the cost of litigation and settlements, or (z) making political or charitable contributions or belonging to trade associations.
“REIT Share” means a share of common stock of the Company, $0.0001 par value per share.
“REIT Shares Amount” means, with respect to Tendered Units as of a particular date, a number of REIT Shares equal to the product of (x) the number of Tendered Units multiplied by (y) the Conversion Factor in effect on such date with respect to such Tendered Units.
“REIT Subsidiary” means, with respect to any period, any Person in which the Partnership owns, directly or indirectly, an equity interest intended to qualify as a REIT during such period.
“Safe Harbors” has the meaning set forth in Section 11.6F hereof.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as amended.
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“Special LTIP Unit” means an LTIP Unit designated as a “Special LTIP Unit” as set forth in the documentation pursuant to which such LTIP Unit is granted.
“Special LTIP Unit Full Participation Date” means, for a Special LTIP Unit, the date specified as such in the documentation pursuant to which such Special LTIP Unit is granted.
“Special LTIP Unit Sharing Percentage” means, with respect to a Special LTIP Unit, ten percent (10%) or such other percentage designated as the Special LTIP Unit Sharing Percentage for such Special LTIP Unit as set forth in the documentation pursuant to which such Special LTIP Unit is granted.
“Specified Redemption Date” means the fifteenth (15th) Business Day after receipt by the General Partner of a Notice of Redemption or such shorter period as the General Partner, in its sole and absolute discretion, may determine; provided that if the Company combines its outstanding REIT Shares, no Specified Redemption Date shall occur after the record date of such combination of REIT Shares and prior to the effective date of such combination.
“Stock Plan” means any stock incentive, stock option, stock ownership or employee benefits plan now or hereafter adopted by the Company, the General Partner or the Partnership or any Subsidiary of the Partnership.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.
“Substituted Limited Partner” means a Person who is admitted as a Limited Partner to the Partnership pursuant to Section 11.4 hereof.
“Surviving Partnership” has the meaning set forth in Section 11.2B(2) hereof.
“Target Balance” has the meaning set forth in Section 6.1I(1) hereof.
“Tax Information” has the meaning set forth in Section 10.5A hereof.
“Tendered Units” has the meaning set forth in Section 8.5A hereof.
“Tendering Partner” has the meaning set forth in Section 8.5A hereof.
“Terminating Capital Transaction” means any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership.
“Unvested AOLTIP Units” has the meaning set forth in Section 1.2 of Exhibit C hereto.
“Unvested LTIP Units” has the meaning set forth in Section 1.2 of Exhibit B hereto.
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“U.S. GAAP” means U.S. generally accepted accounting principles consistently applied.
“Valuation Date” means the date of receipt by the Partnership of a Notice of Redemption or, if such date is not a Business Day, the first Business Day thereafter.
“Value” means, with respect to a REIT Share on a particular date, the market price of a REIT Share on such date. The market price for each such trading day shall be: (i) if the REIT Shares are listed or admitted to trading on any National Securities Exchange, the closing price, regular way, on such day as reported by such National Securities Exchange, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day; (ii) if the REIT Shares are not listed or admitted to trading on any National Securities Exchange, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the General Partner; (iii) if the REIT Shares are not listed or admitted to trading on any National Securities Exchange and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in question) for which prices have been so reported; or (iv) if none of the conditions set forth in clauses (i), (ii), or (iii) is met then, unless the holder of the REIT Shares or Common Units and the General Partner otherwise agree, with respect to a REIT Share per Common Unit offered for redemption, the amount that a Holder of one Common Unit would receive if each of the assets of the Partnership were sold for its fair market value on the Specified Redemption Date, the Partnership were to pay all of its outstanding liabilities, and the remaining proceeds were to be distributed to the Partners in accordance with the terms of this Agreement.
“Vested AOLTIP Units” has the meaning set forth in Section 1.2 of Exhibit C hereto.
“Vested LTIP Units” has the meaning set forth in Section 1.2 of Exhibit B hereto.
“Vesting Agreement” has the meaning set forth in Section 1.2 of Exhibit B hereto.
ARTICLE 2 - ORGANIZATIONAL MATTERS
Section 2.1 Formation and Continuation
The Partnership is a limited partnership heretofore formed and continued pursuant to the provisions of the Act and upon the terms and subject to the conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. The Partnership Interest of each Partner shall be personal property for all purposes.
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Section 2.2 Name
The name of the Partnership shall be “EastGroup Properties, L.P.”. The Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the Company or any Affiliate thereof. The words “Limited Partnership,” “L.P.,” “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners; provided, however, that failure to notify the Limited Partners shall not invalidate such change or the authority granted hereunder.
Section 2.3 Registered Office and Agent; Principal Office
The address of the registered office of the Partnership in the State of Delaware and the name and address of the registered agent for service of process on the Partnership in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware, 19801. The principal business office of the Partnership shall be 400 W. Parkway Place, Suite 100, Ridgeland, Mississippi 39157. The General Partner may from time to time designate in its sole and absolute discretion another registered agent or another location for the registered office or principal place of business, and shall provide the Limited Partners with notice of such change in the next regular communication to the Limited Partners; provided, however, that failure to so notify the Limited Partners shall not invalidate such change or the authority granted hereunder. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner deems advisable.
Section 2.4 Power of Attorney
A.Each Limited Partner and each Assignee hereby constitutes and appoints the General Partner, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:
(1)execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices (a) all certificates, documents and other instruments (including, without limitation, this Agreement and the Certificate of Limited Partnership and all amendments or restatements thereof) that the General Partner or any Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the Limited Partners have limited liability) in the State of Delaware and in all other jurisdictions in which the Partnership may or plans to conduct business or own property; (b) all instruments that the General Partner deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement duly adopted in accordance with its terms; (c) all conveyances and other instruments or documents that the General Partner or any Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the
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Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all conveyances and other instruments or documents that the General Partner or any Liquidator deems appropriate or necessary to reflect the distribution or exchange of assets of the Partnership pursuant to the terms of this Agreement; (e) all instruments relating to the admission, withdrawal, removal or substitution of any Partner or other events described in, Article 11 or Article 12 hereof or the capital contribution of any Partner and (f) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges of Partnership Interests; and
(2)execute, swear to, seal, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, Consent, approval, agreement or other action which is made or given by the Partners hereunder or is consistent with the terms of this Agreement or appropriate or necessary, in the sole discretion of the General Partner or any Liquidator, to effectuate the terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner or any Liquidator to amend this Agreement except in accordance with Article 14 hereof or as may be otherwise expressly provided for in this Agreement.
B.The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each of the Partners will be relying upon the power of the General Partner and any Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee or the transfer of all or any portion of such Limited Partner’s or Assignee’s Partnership Units and shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Limited Partner or Assignee hereby agrees to be bound by any representation made by the General Partner or any Liquidator, acting in good faith pursuant to such power of attorney, and each such Limited Partner or Assignee hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the General Partner or any Liquidator, taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute and deliver to the General Partner or any Liquidator, within fifteen (15) days after receipt of the General Partner’s or such Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the General Partner or any Liquidator, as the case may be, deems necessary to effectuate this Agreement and the purposes of the Partnership.
Section 2.5 Term
The term of the Partnership shall be perpetual unless the Partnership is dissolved sooner pursuant to the provisions of Article 13 or as otherwise provided by law.
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Section 2.6 Partnership Interests are Securities
All Partnership Interests shall be securities within the meaning of, and governed by, (i) Article 8 of the Delaware Uniform Commercial Code as in effect from time to time in the State of Delaware and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
ARTICLE 3 - PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act; provided, however, that such business shall be limited to and conducted in such a manner as to permit the Company at all times to be qualified as a REIT, unless the Company is not qualified or ceases to qualify as a REIT for any reason or reasons other than the conduct of the business of the Partnership, (ii) to enter into any partnership, joint venture, limited liability company or other similar arrangement to engage in any of the foregoing or to own interests in any entity engaged, directly or indirectly, in any of the foregoing; and (iii) to do anything necessary or incidental to the foregoing. In connection with the foregoing, and without limiting the Company’s right, in its sole discretion, to cease qualifying as a REIT, the Partners acknowledge that the Company’s status as a REIT inures to the benefit of all of the Partners and not solely to the Company or its Affiliates.
Section 3.2 Powers
The Partnership is empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Partnership, including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into, perform and carry out contracts of any kind, borrow money and issue evidences of indebtedness whether or not secured by mortgage, deed of trust, pledge or other lien, acquire, own, manage, improve and develop real property, and lease, sell, transfer and dispose of real property; provided, however, that the Partnership shall not take, or omit to take, any action which, in the judgment of the General Partner, in its sole and absolute discretion, (i) could adversely affect the ability of the Company to achieve or maintain qualification as a REIT (including by reason of the Partnership being treated as a corporation for U.S. federal income tax purposes); (ii) could subject the Company to any additional taxes under Section 857 or Section 4981 of the Code or (iii) could violate any law or regulation of any governmental body or agency having jurisdiction over the Company, its securities or the Partnership or any of its Subsidiaries, unless any such action (or inaction) under the foregoing clauses (i), (ii) or (iii) shall have been specifically consented to by the Company in writing. The General Partner shall also be empowered to do any and all acts and things necessary or prudent to ensure that the Company will qualify as a REIT (unless the Company voluntarily terminates or revokes its REIT status), and that the Partnership will not be classified as a “publicly traded partnership” taxable
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as a corporation under Section 7704(b) of the Code, including but not limited to imposing restrictions on transfers and redemptions.
Section 3.3 Partnership Only for Purposes Specified
This Agreement shall not be deemed to create a company, venture or partnership between or among the Partners with respect to any activities whatsoever other than the activities within the purposes of this Partnership as specified in Section 3.1. Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligations or responsibility on behalf of the Partnership, its properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible for any indebtedness or obligation of another Partner, and the Partnership shall not be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution or delivery of this Agreement by such Partner, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to and as limited by the terms of this Agreement and the Act.
Section 3.4 Representations and Warranties by the Partners
A.Each Partner that is an individual (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) represents and warrants to each other Partner that (i) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder; (ii) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any agreement by which such Partner or any of such Partner’s property is or are bound, or any statute, regulation, order or other law to which such Partner is subject; (iii) if five percent (5%) or more (by value) of the Partnership’s interests are or will be owned by such Partner within the meaning of Section 7704(d)(3) of the Code, such Partner does not, and for so long as it is a Partner will not, own, directly or indirectly stock (in the case of a corporate tenant) or an interest in assets of net profits (in the case of a non-corporate tenant) of any entity that is a tenant of any of (I) the Partnership, (II) any REIT Subsidiary or (III) any partnership, venture, trust, limited liability company or other entity of which the Partnership or any REIT Subsidiary; (iv) such Partner is not a “foreign person” within the meaning of Code Section 1445(f) or “foreign partner” within the meaning of Code Section 1446(e); and (v) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting creditors’ rights generally, as from time to time in effect, or the application of equitable principles. Notwithstanding the foregoing, a Partner that is an individual shall not be subject to the ownership restrictions set forth in clause (iii) of the immediately preceding sentence to the extent such Partner obtains the written Consent of the General Partner prior to violating any such restrictions, which consent the General Partner may give or withhold in its sole and absolute discretion. For purposes of this Section 3.4.A, references to a Person include any Disregarded Entity with respect to such Person.
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B.Each Partner that is not an individual (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) represents and warrants to each other Partner that (i) its execution and delivery of this Agreement and all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, director(s), member(s) and/or stockholder(s), as the case may be, as required; (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its certificate of limited partnership, partnership agreement, trust agreement, limited liability company operating agreement, charter or bylaws, as the case may be, any agreement by which such Partner or any of such Partner’s properties or any of its partners, beneficiaries, trustees, directors, members or stockholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, trustees, beneficiaries, directors, members or stockholders, as the case may be, is or are subject; (iii) if five percent (5%) or more (by value) of the Partnership’s interests are or will be owned by such Partner within the meaning of Section 7704(d)(3) of the Code, such Partner does not, and for so long as it is a Partner will not, own, directly or indirectly stock (in the case of a corporate tenant) or an interest in assets of net profits (in the case of a non-corporate tenant) of any entity that is a tenant of any of (I) the Partnership, (II) any REIT Subsidiary or (III) any partnership, venture, trust, limited liability company or other entity of which the Partnership or any REIT Subsidiary; (iv) such Partner is not a “foreign person” within the meaning of Code Section 1445(f) or “foreign partner” within the meaning of Code Section 1446(e); and (v) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting creditors’ rights generally, as from time to time in effect, or the application of equitable principles. Notwithstanding the foregoing, a Partner that is not an individual shall not be subject to the ownership restrictions set forth in clause (iii) of the immediately preceding sentence to the extent such Partner obtains the written Consent of the General Partner prior to violating any such restrictions, which consent the General Partner may give or withhold in its sole and absolute discretion. For purposes of this Section 3.4.B, references to a Person include any Disregarded Entity with respect to such Person.
C.Except as set forth in a separate agreement entered into between the Partnership and a Limited Partner, each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or Substituted Limited Partner) represents, warrants and agrees that (i) it is an “accredited investor” as defined in Rule 501 promulgated under the Securities Act, (ii) it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in violation of applicable laws, and (iii) it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the
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funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
D.Except as set forth in a separate agreement entered into between the Partnership and a Limited Partner, each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or Substituted Limited Partner) represents, warrants and agrees that without the Consent of the General Partner, it shall not take any action that would cause the Partnership at any time to have more than 100 partners, including as partners those persons (each such person, a “Flow-Through Partner”) indirectly owning an interest in the Partnership through an entity treated as a partnership, Disregarded Entity, S corporation or grantor trust for U.S. federal income tax purposes (each such entity, a “Flow-Through Entity”), but only if substantially all of the value of such person’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Partnership or a principal purpose of the use of the tiered arrangement was to permit the Partnership to satisfy the 100-partner limitation set forth in Regulations Section 1.7704-1(h) (regarding the private placement safe harbor from treatment a publicly traded partnership), as determined by the General Partner in its sole discretion.
E.The representations and warranties contained in this Section 3.4 shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation, termination and winding up of the Partnership.
F.Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or Substituted Limited Partner, respectively) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership, or the Company have been made by any Partner or any employee or representative or Affiliate of any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
G.Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4.A, 3.4.B and 3.4.C above as applicable to any Partner (including, without limitation any Additional Limited Partner or Substituted Limited Partner or any transferee of either), provided that such representations and warranties, as modified, shall be set forth in either (i) a Certificate of Designation applicable to the Partnership Units held by such Partner or (ii) a separate writing addressed to the Partnership and the General Partner.
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ARTICLE 4 - CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners
A.The Partners have made or shall be deemed to have made capital contributions to the Partnership and/or have surrendered their existing interests in the Partnership in exchange for the Partnership Units of each such Partner, as set forth in the books and records of the Partnership, which number of Partnership Units and Percentage Interests shall be adjusted from time to time by the General Partner to the extent necessary to accurately reflect sales, exchanges or other transfers of Partnership Units, the issuance of additional Partnership Units, the redemption of Partnership Units, additional capital contributions and similar events having an effect on a Partner’s Percentage Interest.
B.The Common Units held by the General Partner shall be designated as a General Partner Interest or Limited Partner Interests held by the General Partner in its capacity as a Limited Partner in the Partnership, in each case as set forth in the Partnership Ledger. All Partnership Units held by the Company shall be deemed to be Limited Partner Interests and shall be held by the Company in its capacity as a Limited Partner in the Partnership.
C.To the extent the Partnership acquires any property (or an indirect interest therein) by the merger of any other Person into the Partnership or with or into a Subsidiary of the Partnership in a triangular merger, Persons who receive Partnership Interests in exchange for their interests in the Person merging into the Partnership or with or into a Subsidiary of the Partnership shall become Partners and shall be deemed to have made capital contributions as provided in the applicable merger agreement (or if not so provided, as determined by the General Partner in its sole and absolute discretion) and as set forth in the books and records of the Partnership, as amended to reflect such deemed Capital Contributions.
D.Except as provided in Section 4.2, Section 4.3, Section 5.1 and Section 13.3, the Partners shall have no obligation to make any additional capital contributions or loans to the Partnership.
Section 4.2 Issuance of Additional Partnership Interests and Additional Funding
Subject to the rights of any Holder of Partnership Interests set forth in a Certificate of Designations:
A.Issuance of Additional Partnership Interests. The General Partner, in its sole and absolute discretion, is hereby authorized without the approval of the Limited Partners or any other Person to cause the Partnership from time to time to issue to the Partners (including the General Partner, the Company and its Affiliates) or other Persons (including, without limitation, in connection with the contribution of tangible or intangible property, services or other consideration permitted by the Act to the Partnership) additional Partnership Units or other Partnership Interests in one or more classes, or one or more series of any of such classes, with such designations, preferences, and relative, participating, optional or other special rights, powers and duties all as shall be determined by the General Partner in its sole and absolute
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discretion subject to Delaware law, including, without limitation, (i) rights, powers, and duties senior to one or more classes or series of Partnership Interests and any other Common Units outstanding or thereafter issued; (ii) priority or other special rights relative to Common Units or any other class of series of Partnership Interest then outstanding or thereafter issued with respect to (A) allocations of items of Partnership income, gain, loss, deduction, and credit to each such class or series of Partnership Interests (and distributions to reflect such allocations) and (B) allocations of certain or any indebtedness of the Partnership pursuant to Section 752 of the Code; (iii) the rights of each such class or series of Partnership Interests to share in Partnership distributions; (iv) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; (v) the right to vote, if any, of each such class or series of Partnership Interests and (vi) the rights of any class or series of Partnership Interests issued in connection with any tax protection agreement or any other similar arrangement; provided that, subject to Section 7.5B, no such additional Partnership Units or other Partnership Interests shall be issued to the General Partner or the Company or any direct or indirect wholly owned Subsidiary of the Company, unless either (a)(1) the additional Partnership Interests are issued in connection with the grant, award or issuance of REIT Shares, Capital Shares or New Securities of the Company pursuant to Section 4.2E that have designations, preferences and other rights such that the economic interests attributable to such REIT Shares, Capital Shares or New Securities are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner or the Company or any direct or indirect wholly owned Subsidiary of the Company (as appropriate) in accordance with this Section 4.2A, and (2) the Company shall, directly or indirectly, make a capital contribution to the Partnership in an amount equal to any net proceeds raised in connection with such issuance or (b) the additional Partnership Interests are issued to all Partners in proportion to their respective Percentage Interests or the additional Partnership Units are Common Units that are issued to all holders of Common Units in proportion to the number of Common Units held by each holder. The General Partner’s determination that the consideration is adequate shall be conclusive insofar as the adequacy of consideration related to whether the Partnership Interests are validly issued and paid.
B.Additional Funds. The General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (“Additional Funds”) for the acquisition or development of additional Properties, for the redemption of Partnership Units or for such other Partnership purposes as the General Partner may determine in its sole and absolute discretion. Additional Funds may be raised by the Partnership, at the election of the General Partner, in any manner provided in, and in accordance with, the terms of this Section 4.2 without the approval of any Limited Partner or any other Person.
C.Loans by Third Parties. The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt, or enter into other similar credit, guarantee, financing or refinancing arrangements for any purpose (including, without limitation, in connection with any further acquisition of Properties) upon such terms as the General Partner determines appropriate; provided that the Partnership shall not incur any Debt that is recourse to any Partner, except to the extent otherwise agreed to by the applicable Partner.
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D.General Partner and Company Loans. The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt to the General Partner and/or the Company, if (i) such Debt is, to the extent permitted by law, on substantially the same terms and conditions (including interest rate, repayment schedule, and conversion, redemption, repurchase and exchange rights, but not including collateral) as Funding Debt incurred by the General Partner or the Company, as applicable, the net proceeds of which are loaned to the Partnership to provide such Additional Funds or (ii) such Debt is on terms and conditions no less favorable to the Partnership than would be available to the Partnership from any third party; provided, however, that the Partnership shall not incur any such Debt if (a) a breach, violation or default of such Debt would be deemed to occur by virtue of the transfer by any Limited Partner of any Partnership Interest or (b) such Debt is recourse to any Partner (unless the Partner otherwise agrees). This Section 4.2D shall not limit the Company’s ability to contribute Funding Debt proceeds to the Partnership in exchange for Preferred Units rather than loaning such proceeds to the Partnership.
E.Issuance of Securities by the Company. The Company shall not issue any additional REIT Shares, Capital Shares or New Securities (other than REIT Shares issued pursuant to Section 8.5 or such shares, stock or securities pursuant to a dividend or distribution (including any stock split) to all of its stockholders who hold a particular class of stock of the Company) unless (i) the General Partner shall cause the Partnership to issue to the Company, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights, all such that the economic interests thereof are substantially similar to those of the REIT Shares, Capital Shares or New Securities issued by the Company, and (ii) the Company directly or indirectly contributes to the Partnership the proceeds, if any, received from the issuance of such additional REIT Shares, Capital Shares or New Securities, as the case may be, and from any exercise of the rights contained in such additional New Securities, as the case may be; provided that the Company may use a portion of the proceeds received from such issuance to acquire other assets (provided such other assets are contributed to the Partnership pursuant to the terms of this Agreement). Without limiting the foregoing, the Company is expressly authorized to issue REIT Shares, Capital Shares or New Securities for no tangible value or for less than fair market value, including, without limitation, for purposes of compensating executives, employees or directors of the General Partner, the Company, the Partnership or any of their Affiliates, and the General Partner is expressly authorized to cause the Partnership to issue to the Company corresponding Partnership Interests, so long as (x) the General Partner concludes in good faith that such issuance of Partnership Interests is in the interests of the Partnership, and (y) the Company contributes all proceeds, if any, from such issuance and exercise to the Partnership.
F.In the event that the actual proceeds received by the Company in connection with any issuance of additional REIT Shares, Capital Shares or New Securities are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid in connection with such issuance, then, except as provided in Section 6.1L, the Company shall be deemed to have made a capital contribution to the Partnership in the amount equal to the sum of the net proceeds of such issuance plus the amount of such underwriter’s discount and other expenses paid by the Company (which discount and expense shall be treated
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as an expense for the benefit of the Partnership for purposes of Section 7.4). In the case of the issuance of REIT Shares by the Company in any offering, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries, or otherwise distributed, for purposes of determining the number of additional Common Units issuable upon a capital contribution funded by the net proceeds thereof consistently with the immediately preceding sentence, any discount from the then current market price of REIT Shares shall be disregarded such that an equal number of Common Units can be issued to the Company as the number of REIT Shares sold by the Company in such offering. In the case of issuances of REIT Shares, Capital Shares or New Securities pursuant to any Stock Plan at a discount from fair market value or for no value, the amount of such discount representing compensation to the employee, as determined by the General Partner, shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4 and, as a result, the Company shall be deemed to have made a capital contribution to the Partnership in an amount equal to the sum of any net proceeds of such issuance plus the amount of such expense.
G.In the event that the Partnership issues Partnership Interests pursuant to this Section 4.2, the General Partner shall make such revisions to this Agreement (without any requirement of receiving approval of the Limited Partners) including, but not limited to, the revisions described in Section 6.1M and Section 8.5 hereof, as it deems necessary to reflect the issuance of such additional Partnership Interests and the special rights, powers, and duties associated therewith.
H.Notwithstanding anything to the contrary, the Partnership shall be authorized to issue LTIP Units and AOLTIP Units. From time to time the General Partner may issue LTIP Units and/or AOLTIP Units to Persons providing services to or for the benefit of the Partnership.
I.Nothing in this Agreement shall be construed or applied to preclude or restrain the General Partner or the Company from adopting, modifying or terminating Stock Plans for the benefit of employees, directors or other business associates of the General Partner, the Company, the Partnership or any of their Affiliates. The Partners acknowledge and agree that, in the event that any such Stock Plan is adopted, modified or terminated by the General Partner or the Company, amendments to this Agreement may become necessary or advisable and that any such amendments requested by the General Partner or the Company shall not require any Consent or approval by the Limited Partners.
Section 4.3 Other Contribution Provisions
In the event that any Partner is admitted to the Partnership or any existing Partner is issued additional Partnership Interests and any such Partner is given (or is treated as having received) a Capital Account credit at the time of such admission or issuance, as applicable, in exchange for services rendered to the Partnership, such transaction shall be treated by the Partnership and the affected Partner as if the Partnership had compensated such Partner in cash in an amount equal to the Capital Account credit such Partner received, and the Partner had contributed such cash to the capital of the Partnership. In addition, with the consent of the
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General Partner, in its sole and absolute discretion, one or more Limited Partners (or direct or indirect equity owners thereof) may enter into agreements with the Partnership, in the form of a guarantee or contribution agreement, which have the effect of providing a guarantee of certain obligations of the Partnership.
Section 4.4 No Preemptive Rights
Except to the extent expressly granted by the Partnership pursuant to another agreement, no Person including, without limitation, any Partner or Assignee, shall have any preemptive, preferential or other similar right with respect to (i) capital contributions or loans to the Partnership or (ii) the issuance or sale of any Partnership Units or other Partnership Interests.
Section 4.5 No Interest on Capital
No Partner shall be entitled to interest on its Capital Contributions or its Capital Account. Except as provided herein or by law, no Partner shall have any right to withdraw any part of its Capital Account or to demand or receive the return of its Capital Contributions.
Section 4.6 Conversion or Redemption of REIT Shares and Capital Shares
A.If, at any time, any of the Capital Shares are converted into REIT Shares, in whole or in part, then a number of Partnership Units directly or indirectly held by the Company with preferences, conversion and other rights (other than redemption and voting rights), restrictions (other than restrictions on transfer), rights and limitations as to dividends and other distributions and qualifications that are substantially the same as the preferences, conversion and other rights (other than redemption and voting rights), restrictions (other than restrictions on transfer), rights and limitations as to dividends and other distributions and qualifications of such Capital Shares (“Equivalent Units”) (for the avoidance of doubt, Equivalent Units need not have voting rights, redemption rights or restrictions on transfer that are substantially equivalent to such Capital Shares) equal to the number of Capital Shares so converted shall automatically be converted into a number of Common Units equal to the quotient of: (i) the number of REIT Shares issued upon such conversion divided by (ii) the Conversion Factor then in effect, and the Percentage Interests of the General Partner and the Limited Partners shall be adjusted to reflect such conversion.
B.Except as otherwise provided in Section 7.4.C, if, at any time, any Capital Shares are redeemed or otherwise repurchased (whether by exercise of a put or call, automatically or by means of another arrangement) by the Company for cash, immediately prior to such redemption or repurchase of Capital Shares, an equal number of the corresponding Equivalent Units held by the Company shall automatically be redeemed by the Partnership upon the same terms and for the same price per Equivalent Unit as such Capital Shares are redeemed or repurchased. If, at any time, any REIT Shares are forfeited or redeemed or otherwise repurchased or reacquired by the Company, immediately prior to such forfeiture, redemption, reacquisition or repurchase of REIT Shares, a number of Common Units held by the Company equal to the quotient of: (i) the REIT Shares so forfeited, redeemed, reacquired or repurchased, divided by (ii) the Conversion Factor then in effect, shall automatically be redeemed by the
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Partnership, such redemption to be upon the same terms and for the same price per Common Unit (after giving effect to application of the Conversion Factor) as such REIT Shares are redeemed, repurchased or otherwise reacquired, or, in the case of a forfeiture of REIT Shares, shall automatically be forfeited by the Company for no consideration.
Section 4.7 Excess Shares
For purposes of this Agreement, in the event of a conversion of any REIT Shares or any class or series of Capital Shares into Excess Shares pursuant to the Articles of Incorporation, the General Partner may, in its sole discretion, treat such Excess Shares as REIT Shares or any such class or series of Capital Shares from which such Excess Shares were converted as the General Partner may deem necessary and appropriate to give effect to the intent of this Agreement.
ARTICLE 5 - DISTRIBUTIONS
Section 5.1 Distribution of Cash
A.Subject to Article 13, the other provisions of this Article 5 and the rights and preferences of any Preferred Units or additional class or series of Partnership Units established pursuant to Section 4.2 the Partnership shall distribute cash at such times and in such amounts as are determined by the General Partner, in its sole and absolute discretion, to the Partners who are Partners on the Partnership Record Date in accordance with their respective Percentage Interests on the Partnership Record Date.
B.Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership (which for purposes of this Section 5.1B. shall include any predecessor entity and any person whose withholding obligations have been assumed by the Partnership) to comply with any withholding (or comparable) requirements established under the Code or any other U.S. federal, state or local law or non-U.S. law including, without limitation, pursuant to Sections 1441, 1442, 1445, 1446, 1471, 1472 and 6225 of the Code.
(1)Any amount withheld or paid on behalf of or with respect to an Outside Limited Partner to comply with any withholding or comparable requirement described in this Section 5.1B (a “Withholding Payment”) or otherwise designated herein as a Withholding Payment shall constitute a loan by the Partnership to such Outside Limited Partner, which loan shall be repaid by such Outside Limited Partner within fifteen (15) days after notice from the General Partner that such payment must be made unless (i) the Partnership withholds such payment from a distribution which would otherwise be made to the Outside Limited Partner, (ii) the General Partner determines, in its sole and absolute discretion, that such payment may be satisfied out of the available funds of the Partnership which would, but for such payment, be distributed to the Outside Limited Partner or (iii) treatment as a loan would jeopardize the Company’s status as a REIT or otherwise be prohibited by law, including, without limitation, Section 402 of the Sarbanes-Oxley Act of 2002 (in which case such Outside Limited Partner shall pay such amount to the Partnership on or before the date the Partnership pays such amount on
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behalf of such Outside Limited Partner). Any amounts withheld pursuant to the foregoing clauses (i), (ii) or (iii) shall be treated as having been distributed to such Outside Limited Partner (unless, in the case of amounts governed by clause (iii), the Outside Limited Partner timely pays the amount to be withheld to the Partnership). Each Outside Limited Partner hereby unconditionally and irrevocably grants to the Partnership a security interest in such Outside Limited Partner’s Partnership Interest to secure such Outside Limited Partner’s obligation to pay to the Partnership any amounts required to be paid pursuant to this Section 5.1B. Any amounts payable by an Outside Limited Partner under this Section 5.1B shall bear interest at the lesser of (1) the base rate on corporate loans at large United States money center commercial banks, as published from time to time in The Wall Street Journal, plus four (4) percentage points, or (2) the maximum lawful rate of interest on such obligation, such interest to accrue from the date such amount is due (i.e., fifteen (15) days after demand) until such amount is paid in full. Each Outside Limited Partner shall take such actions as the Partnership shall request in order to (i) perfect or enforce the security interest created hereunder and (ii) cause any loan arising hereunder to be treated as a real estate asset for purposes of Section 856(c)(4)(A) of the Code and to generate income described in Section 856(c)(3) of the Code. In addition to all other remedies that the Partnership may be entitled to pursue, in the event that an Outside Limited Partner fails to pay any amount when due pursuant to this Section 5.1B, the Partnership may thereafter, at any time prior to the Outside Limited Partner’s payment in full of such amount (plus any accrued interest), elect to redeem Common Units held by such Outside Limited Partner, in accordance with the procedures set forth in Section 8.5 with the Valuation Date being the date the Partnership elects to redeem such Common Units, in an amount sufficient to pay any or all of such amount.
(2)In the event that proceeds to the Partnership are reduced on account of taxes withheld at the source or the Partnership incurs a tax liability and such taxes (or a portion thereof) are imposed on or with respect to one or more, but not all, of the Partners in the Partnership or if the rate of tax varies depending on the attributes of specific Partners or to whom the corresponding income is allocated, the amount of the reduction in the Partnership’s net proceeds shall be borne by and apportioned among the relevant Partners and to the extent borne by and apportioned to Outside Limited Partners shall be treated as if it were paid by the Partnership as a Withholding Payment with respect to such Outside Limited Partners in accordance with such apportionment. For the avoidance of doubt, in accordance with the foregoing, any Imputed Underpayment Amount paid (or payable) by the Partnership with respect to Outside Limited Partners (or former Outside Limited Partners) shall be treated as if it were paid by the Partnership as a Withholding Payment with respect to the appropriate Outside Limited Partners (and/or former Outside Limited Partners). The portion of the Imputed Underpayment Amount and/or the taxes withheld under Section 1446(f) of the Code, in each case that the General Partner attributes to a Partnership Interest (or portion thereof) of a former Outside Limited Partner of the Partnership shall be treated as a Withholding Payment with respect to both (i) such former Outside Limited Partner and (ii) any Outside Limited Partner that is a transferee(s) or assignee(s), as applicable, of such Partnership Interest (or portion thereof), and the General Partner may in its discretion exercise the Partnership’s rights
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pursuant to this Section 5.1B in respect of either or both of the former Outside Limited Partner and such transferee or assignee.
(3)Each Outside Limited Partner agrees to indemnify, reimburse, and hold harmless the Partnership, the Company and the General Partner from and against any and all liability or loss with respect to Withholding Payments required on behalf of, or with respect to, such Partner, including, any interest (computed as provided in Section 5.1.B(1)), penalties, costs or expenses incurred in connection with such Withholding Payment. An Outside Limited Partner’s obligation to pay to the Partnership any amounts required to be paid pursuant to this Section 5.1.B or otherwise so indemnify the Partnership shall survive the liquidation and dissolution of the Partnership and/or unless otherwise agreed to by the General Partner in its discretion, the Outside Limited Partner’s withdrawal from the Partnership or assignment of its interests in the Partnership (including for the avoidance of doubt assignment or withdrawal resulting from a redemption or exchange of Common Units pursuant to Section 8.5 or Section 8.6), and the Partnership may pursue and enforce all rights and remedies it may have under this Section 5.1.B or applicable law to recover any such amounts from each such Outside Limited Partner or former Outside Limited Partner.
C.In no event may a Partner receive a distribution of cash with respect to a Partnership Unit if such Partner is entitled to receive a cash dividend as the holder of record with respect to the Partnership Record Date for such distribution of a REIT Share for which all or part of such Partnership Unit has been or will be exchanged.
Section 5.2 REIT Distribution Requirements
The General Partner shall use its reasonable efforts to cause the Partnership to make distributions pursuant to this Article 5 sufficient to enable the Company to pay stockholder dividends that will allow the Company to (i) meet its distribution requirement for qualification as a REIT as set forth in Section 857 of the Code and (ii) other than to the extent the Company elects to retain and pay income tax on its net capital gain, avoid or reduce any U.S. federal income or excise tax liability imposed by the Code.
Section 5.3 No Right to Distributions in Kind
No Partner shall be entitled to demand property other than cash in connection with any distributions by the Partnership. The General Partner may determine, in its sole and absolute discretion, to make a distribution in-kind of Partnership assets to the Holders, and such assets shall be distributed in the manner to ensure that the fair market value is distributed and allocated in accordance with Articles 5 and 6 hereof.
Section 5.4 Distributions Upon Liquidation
Notwithstanding the other provisions of this Article 5, net proceeds from a Terminating Capital Transaction, and any other cash received or reductions in reserves made after
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commencement of a Liquidating Event shall be distributed to Holders in accordance with Section 13.2.
Section 5.5 Distributions to Reflect Issuance of Additional Partnership Units
In addition to any amendment permitted under Section 14.2, the General Partner is authorized to modify the distributions in this Article 5 and amend such provisions (including the defined terms used therein) in such manner as the General Partner determines is necessary or appropriate to reflect the issuances of additional series or classes of Partnership Interests without the consent of any Partner or any other Person. Any such modification may be made pursuant to a Certificate of Designations or similar instrument establishing such new class or series.
ARTICLE 6 – ALLOCATIONS
Section 6.1 Capital Account Allocations of Profit and Loss
A.Profit. After giving effect to the special allocations, if any, required under this Article 6 for the applicable period, and subject to the other provisions of this Section 6.1 and to the allocations to be made with respect to any Preferred Units or additional class or series of Partnership Units established pursuant to Section 4.2, Profits in each taxable year or other allocation period shall be allocated to the Partners’ Capital Accounts in the following order of priority:
(1)First to the General Partner until the cumulative Profits allocated to the General Partner under this Section 6.1A(1) equal the cumulative Losses allocated to the General Partner under Section 6.1.B(2); and
(2)Thereafter, to the holders of Common Units, LTIP Units and AOLTIP Units in accordance with their respective Percentage Interests.
B.Losses. After giving effect to the special allocations, if any, required under this Article 6 for the applicable period, and subject to the allocations to be made with respect to any Preferred Units or additional class or series of Partnership Units established pursuant to Section 4.2, and further subject to the other provisions of this Section 6.1, Loss in each taxable year or other period shall be allocated in the following order of priority:
(1)First, to the holders of Common Units, LTIP Units and AOLTIP Units with positive balances in their Economic Capital Account Balances in accordance with their respective Percentage Interests until their Economic Capital Accounts Balances are reduced to zero; and
(2)Thereafter, to the General Partner. For purposes of determining allocations of Losses pursuant to Section 6.1.B(1), an LTIP Unit Limited Partner shall be treated as having a separate Economic Capital Account Balance for each tranche of LTIP Units with a different issuance date that it holds and for each tranche of AOLTIP Units with a different issuance date that it holds and a separate Capital Account for its Common
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Units, if applicable, and for this purpose (i) a separate Capital Account with an appropriate share of Partnership Minimum Gain and Partner Minimum Gain shall be maintained, for each tranche of LTIP Units with a different issuance date that it holds and for each tranche of AOLTIP Units with a different issuance date that it holds and a separate Capital Account for its Common Units, if applicable, and (ii) the Economic Capital Account Balance of each holder of Common Units shall not include any Economic Capital Account Balance attributable to other series or classes of Partnership Units.
C.Nonrecourse Deductions and Minimum Gain Chargeback. Notwithstanding any provision to the contrary, (i) any loss, deduction or expense of the Partnership that is a “nonrecourse deduction” within the meaning of Regulations Section 1.704-2(b)(1) shall be allocated in accordance with the Partners’ respective Percentage Interests, (ii) any loss, deduction or expense of the Partnership that is a “partner nonrecourse deduction” within the meaning of Regulations Section 1.704-2(i)(2) shall be allocated to the Partner that bears the “economic risk of loss” of such deduction in accordance with Regulations Section 1.704-2(i)(1), (iii) if there is a net decrease in Partnership Minimum Gain within the meaning of Regulations Section 1.704-2(f)(1) for any Partnership taxable year, then, subject to the exceptions set forth in Regulations Section 1.704-2(f)(2),(3), (4) and (5), items of gain and income shall be allocated among the Partners in accordance with Regulations Section 1.704-2(f) and the ordering rules contained in Regulations Section 1.704-2(j), and (iv) if there is a net decrease in “partner nonrecourse debt minimum gain” within the meaning of Regulations Section 1.704-2(i)(4) for any Partnership taxable year, then items of gain and income shall be allocated among the Partners in accordance with Regulations Section 1.704-2(i)(4) and the ordering rules contained in Regulations Section 1.704-2(j).
D.Qualified Income Offset. If a Partner receives in any taxable year an adjustment, allocation or distribution described in subparagraphs (4), (5) or (6) of Regulations Section 1.704-1(b)(2)(ii)(d) that causes or increases a deficit balance in such Partner’s Capital Account that exceeds the sum of such Partner’s shares of Partnership Minimum Gain and Partner Minimum Gain, as determined in accordance with Regulations Sections 1.704-2(g) and 1.704-2(i), such Partner shall be specially allocated for such taxable year (and, if necessary, later taxable years) items of income and gain in an amount and manner sufficient to eliminate such deficit Capital Account balance as quickly as possible as provided in Regulations Section 1.704-1(b)(2)(ii)(d).
E.Capital Account Deficits. Loss or items thereof shall not be allocated to a Limited Partner to the extent that such allocation would cause or increase a deficit in such Partner’s Adjusted Capital Account.
F.Definition of Profit and Loss. As used in this Agreement, “Profit” and “Loss” mean, respectively, the net income or net loss for the applicable period as determined for purposes of maintaining Capital Accounts and shall be determined in accordance with U.S. federal income tax accounting principles, as modified by Regulations Section 1.704-1(b)(2)(iv), except that Profit and Loss shall not include items of income, gain, loss, deduction and/or
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expense as determined for purposes of maintaining Capital Accounts that are specially allocated pursuant to this Article 6 (other than Section 6.1A or Section 6.1B). As used in this Article 6, references to items of income, gain, loss, deduction and/or expense (other than references to any such item(s) as determined for tax purposes or for U.S. federal income tax purposes or to “tax items”) mean items of income, gain, loss, deduction and/or expense as determined for purposes of maintaining Capital Accounts as determined in the same manner as for determining items included in Profit and Loss.
G.Curative Allocations. The allocations set forth in Section 6.1C, Section 6.1D and Section 6.1E hereof (the “Regulatory Allocations”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of this Section 6.1 and Section 6.2 hereof, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and expense among the Holders so that to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Holder shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.
H.Forfeitures. Subject to Section 6.1.J with respect to a forfeiture of certain LTIP Units, upon a forfeiture of any unvested Partnership Interest by any Partner, gross items of income, gain, loss or deduction shall be allocated to such Partner if and to the extent required by final Regulations (or otherwise to the extent determined by the General Partner, in its sole discretion, as necessary) to ensure that allocations made with respect to all unvested Partnership Interests are recognized under Section 704(b) of the Code.
I.LTIP Allocations.
(1)After giving effect to the special allocations set forth in Section 6.1.C and Section 6.1.D hereof, and the allocations of Profit under Section 6.1.A(1) (including, for the avoidance of doubt, Liquidating Gains that are a component of Profit), and subject to the other provisions of this Section 6.1, but before allocations of Profit are made under Section 6.1.A(2), any remaining Liquidating Gains shall first be allocated among the Partners so as to cause, as nearly as possible, the Economic Capital Account Balance of each LTIP Unit Limited Partner, (i) to the extent attributable to such Limited Partner’s ownership of an LTIP Unit, to be equal to the Common Unit Economic Balance (determined after taking into account any additional allocations of Liquidating Gains or Liquidating Losses to be made with respect to Common Units after the application of this Section 6.1.I(1) for the same period for which the allocations in this Section 6.1.I(1) are being made) and (ii) to the extent attributable to such Limited Partner’s ownership of an AOLTIP Unit, to be equal to the Common Unit Economic Balance (determined after taking into account any additional allocations of Liquidating Gains or Liquidating Losses to be made with respect to Common Units after the application of this Section 6.1.I(1) for the same period for which the allocations in this Section 6.1.I(1) are being made) multiplied by the number of Common Units (or fractions thereof) into which such AOLTIP Unit would then be convertible, assuming for such purpose that each such
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AOLTIP Unit is a Vested AOLTIP Unit (with such Economic Capital Account Balance with respect to an LTIP Unit or AOLTIP Unit to be achieved through the immediately foregoing allocations referred to as the “Target Balance” for such unit).
(2)Notwithstanding Section 6.1.I(1), except as otherwise provided in connection with an agreement or other documentation entered into by the Partnership relating to any particular LTIP Unit, no Liquidating Gains will be allocated with respect to such LTIP Unit under Section 6.1.I(1) as of any date unless and to the extent that the Liquidating Gains as of such date, when aggregated with other Liquidating Gains realized since the issuance of such LTIP Unit and exceed Liquidating Losses realized since the issuance of such LTIP Unit. For purposes of performing the calculations in the preceding sentence, the amount of Liquidating Gains shall be increased by the amount of any Net Realized Gain for the period since the issuance of such LTIP Unit and the amount of Liquidating Losses shall be increased by the amount of any Net Realized Loss for the period since the issuance of such LTIP Unit.
(3)Any such allocations under this Section 6.1.I shall first be made among the holders of LTIP Units in proportion to the aggregate amounts required to be allocated to each such holder under this Section 6.1.I, and next to the holders of AOLTIP Units in proportion to the aggregate amounts required to be allocated to each under this Section 6.1.I. For the avoidance of doubt, allocations pursuant to Section 6.1.O hereof shall be made after any allocations with respect to LTIP Units pursuant to this Section 6.1.I and prior to any allocations with respect to AOLTIP Units pursuant to this Section 6.1.I.
(4)Liquidating Gain allocated to an LTIP Unit Limited Partner under this Section 6.1I will be attributed to specific LTIP Units and AOLTIP Units of such LTIP Unit Limited Partner for purposes of determining (i) allocations under this Section 6.1I, (ii) the effect of the forfeiture or conversion of specific LTIP Units or AOLTIP Units on such LTIP Unit Limited Partner’s Capital Account and (iii) the ability of such LTIP Unit Limited Partner to convert specific LTIP Units into Common Units. Liquidating Gain allocated to such LTIP Unit Limited Partner under this Section 6.1I for any period by reason of holding LTIP Units will generally be attributed to LTIP Units with a positive Book-Up Target before the allocations with respect to AOLTIP Units under this Section 6.1I for the applicable period and in the following order: (i) first, to Vested LTIP Units held for more than two years, (ii) second, to Vested LTIP Units held for two years or less, (iii) third, to Unvested LTIP Units that have remaining vesting conditions that only require continued employment or service to the Company, the Partnership or an Affiliate of either for a certain period of time (with such Liquidating Gains being attributed in order of vesting from soonest vesting to latest vesting), and (iv) fourth, to other Unvested LTIP Units (with such Liquidating Gains being attributed in order of issuance from earliest issued to latest issued). The amount so attributed to each such category relating to LTIP Units shall not exceed the aggregate Book-Up Target of the units in such category, and within each category Liquidating Gain will be attributed seriatim (i.e., entirely to the first unit in a set, then entirely to the next unit in the set, and
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so on, until a full allocation is made to the last unit in the set) in the order of smallest Book-Up Target to largest Book-Up Target. Subject to Section 6.1I(3) and Section 6.1.O, Liquidating Gain allocated to an AOLTIP Unit Limited Partner under this Section 6.1I by reason of holding AOLTIP Units will generally be attributed to AOLTIP Units in proportion to the aggregate amounts required to be allocated with respect to each AOLTIP Unit.
(5)After giving effect to the special allocations set forth above, if, due to distributions with respect to Common Units in which the LTIP Units and/or AOLTIP Units do not participate, forfeitures or otherwise, the aggregate Economic Capital Account Balance of any present or former LTIP Unit Limited Partner attributable to such LTIP Unit Limited Partner’s LTIP Units and/or AOLTIP Units, exceeds the aggregate Target Balance of such LTIP Units and/or AOLTIP Units, then Liquidating Losses shall be allocated to such LTIP Unit Limited Partner (and to the extent possible in a manner consistent with the principles of Section 6.1.I(3)), or Liquidating Gains shall be allocated to the other Partners, to reduce or eliminate the disparity; provided, however, that if Liquidating Losses or Liquidating Gains are insufficient to completely eliminate all such disparities, such losses or gains shall be allocated among Partners in a manner reasonably determined by the General Partner.
(6)The parties agree that the intent of this Section 6.1I is (i) to the extent possible within the limitations imposed by Section 6.1I(2) (and consistent with the intended treatment of LTIP Units and AOLTIP Units as “profits interests” for U.S. Federal income tax purposes) to make the Economic Capital Account Balance associated with (x) each LTIP Unit economically equivalent to the Common Unit Economic Balance and (y) each AOLTIP Unit economically equivalent to the Common Unit Economic Balance (or fractions thereof), if any, into which such AOLTIP Unit would then be convertible, assuming for such purpose that such AOLTIP Unit was a Vested AOLTIP Unit and (ii) to allow conversion of an LTIP Unit (assuming prior vesting) into a Common Unit when sufficient Liquidating Gains have been allocated to such LTIP Unit pursuant to Section 6.1.I(1) so that either its initial Book-Up Target has been reduced to zero or the parity described in the definition of Target Balance has been achieved with respect to such LTIP Unit. The General Partner shall be permitted to interpret this Section 6.1I or to amend this Agreement to the extent necessary and consistent with this intention.
(7)For the avoidance of doubt, in the event that Liquidating Gains or Liquidating Losses are allocated under this Section 6.1I, Profits allocable under Section 6.1.A(2) and any Losses shall be recomputed without regard to the Liquidating Gains or Liquidating Losses so allocated.
J.LTIP Forfeitures.
(1)If an LTIP Unit Limited Partner forfeits any LTIP Units to which Liquidating Gain has previously been allocated under Section 6.1I (or previously re-allocated under this Section 6.1J), the portion of such LTIP Unit Limited Partner’s
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Capital Account attributable to such Liquidating Gain allocated (or reallocated) to such forfeited LTIP Units shall be re-allocated (i) first to that LTIP Unit Limited Partner’s remaining LTIP Units that were outstanding on the date of the initial allocation of such Liquidating Gain and would have been eligible to receive the allocation of such Liquidating Gain on such date (if any), using a methodology similar to that described in Section 6.1I(4)-(4) above as reasonably determined by the General Partner, to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such remaining LTIP Unit to equal the Common Unit Economic Balance, (ii) second, to the LTIP Unit Limited Partner’s Common Units (or fractions thereof) that were converted from AOLTIP Units to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such Common Unit to equal the Common Unit Economic Balance (or applicable fraction thereof), and (iii) thereafter to that LTIP Unit Limited Partner’s remaining AOLTIP Units (if any) to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such AOLTIP Unit to equal the Common Unit Economic Balance (or fractions thereof), if any, into which such AOLTIP Units would then be convertible, assuming for such purpose that such AOLTIP Units were vested AOLTIP Units.
(2)If an LTIP Unit Limited Partner forfeits any AOLTIP Units to which Liquidating Gain has previously been allocated under Section 6.1I (or previously re-allocated under this Section 6.1J), the portion of such LTIP Unit Limited Partner’s Capital Account attributable to such Liquidating Gain allocated (or re-allocated) to such forfeited AOLTIP Units shall be re-allocated (i) first to that LTIP Unit Limited Partner’s remaining LTIP Units that were outstanding on the date of the initial allocation of such Liquidating Gain and would have been eligible to receive the allocation of such Liquidating Gain on such date (if any), using a methodology similar to that described in Section 6.1I(4) above as reasonably determined by the General Partner, to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such remaining LTIP Unit to equal the Common Unit Economic Balance, (ii) second, to the LTIP Unit Limited Partner’s Common Units (or fractions thereof) that were converted from AOLTIP Units to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such Common Unit to equal the Common Unit Economic Balance (or applicable fraction thereof), and (iii) thereafter to that LTIP Unit Limited Partner’s remaining AOLTIP Units to the extent necessary to cause such LTIP Unit Limited Partner’s Economic Capital Account Balance attributable to each such AOLTIP Unit to equal the Common Unit Economic Balance (or fractions thereof), if any, into which such AOLTIP Units would then be convertible, assuming for such purpose that such AOLTIP Units were vested AOLTIP Units.
(3)To the extent that the Capital Account of an LTIP Unit Limited Partner attributable to Liquidating Gains allocated to forfeited LTIP Units or forfeited AOLTIP Units is not re-allocated to other units under Section 6.1.J(1)-(2) above, such
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LTIP Unit Limited Partner’s Capital Account will be reduced by the amount of any such Liquidating Gain not so re-allocated.
K.Reimbursements Treated as Guaranteed Payments. Subject to Section 6.1L, if and to the extent any payment or reimbursement to the General Partner or the Company made pursuant to Section 4.2, Section 7.4, Section 7.7 or otherwise is determined for U.S. federal income tax purposes not to constitute a payment of expenses of the Partnership, the amount so determined shall constitute a guaranteed payment with respect to capital within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners and shall not be treated as a distribution for purposes of computing the Partners’ Capital Accounts.
L.Adjustments to Preserve REIT Status and Avoid Gain. Notwithstanding any provision in this Agreement to the contrary other than Section 15.13, if the Partnership pays or reimburses (directly or indirectly, including by reason of giving the General Partner or the Company or any direct or indirect Subsidiary of the Company Capital Account credit in excess of actual Capital Contributions made by the General Partner or the Company or any direct or indirect Subsidiary of the Company) fees, expenses or other costs pursuant to Section 4.2, Section 7.4 and/or Section 7.7, or otherwise, and if failure to treat all or part of such payment or reimbursement as a distribution to the General Partner, the Company or any Subsidiary of the Company (as appropriate), or the receipt of Capital Account credit in excess of actual Capital Contributions, would cause the Company to recognize income that would cause the Company to fail to qualify as a REIT (before the operation of Section 15.13), then such payment or reimbursement (or portion thereof) shall be treated as a distribution to the General Partner, the Company or direct or indirect Subsidiary of the Company (as appropriate) for purposes of this Agreement, or the Capital Account credit in excess of actual Capital Contributions shall be reduced, in each case to the extent necessary to preserve the Company’s status as a REIT. The Capital Account of the General Partner, the Company or any direct or indirect Subsidiary of the Company (as appropriate) shall be reduced by such direct or indirect payment or reimbursement (or a portion thereof) in the same manner as an actual distribution to the General Partner, the Company, or any direct or indirect Subsidiary of the Company (as appropriate). To the extent treated as distributions, such fees, expenses or other costs shall not be taken into account as Partnership fees, expenses or costs for the purposes of this Agreement. In the event that amounts are recharacterized as distributions or Capital Accounts are reduced pursuant to this Section 6.1L, allocations under Section 6.1A, Section 6.1B and Section 6.1I for the current and subsequent periods shall be adjusted as reasonably determined by the General Partner so that to the extent possible the Partners have the same Capital Account balances they would have if this Section 6.1L had not applied. This Section 6.1L is intended to prevent direct or indirect reimbursements or payments under this Agreement from giving rise to a violation of the Company’s REIT requirements without having to reduce such amounts pursuant to Section 15.3 to the extent possible, while at the same time preserving to the extent possible the parties’ intended economic arrangement, and shall be interpreted and applied consistent with such intent.
M.Modifications to Reflect New Series or Classes. The General Partner is authorized to modify the allocations in this Section 6.1 and amend such provisions (including the
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defined terms used therein) in such manner as the General Partner determines is necessary or appropriate to reflect the issues of additional series or classes of Partnership Interests. Any such modification may be made pursuant to the Certificate of Designations or similar instrument establishing such new class or series. Such modifications shall not require the consent or approval of any other Partner.
N.Agreement to Bear Disproportionate Losses. At the request and with the consent of the applicable Limited Partner, the General Partner may modify these allocations to provide for disproportionate allocations of Loss (or items of loss or deduction) and chargebacks thereof to a Limited Partner that agrees to restore all or part of any deficit in its Capital Account in accordance with Section 13.3 (in all cases subject to Section 6.1E). Such modifications shall not require the consent or approval of any Partner other than the Limited Partner that agrees to such restoration obligation.
O.Special Allocation upon Conversion of AOLTIP Unit. After a holder’s (or such holder’s transferor’s) conversion of an AOLTIP Unit into a fraction (which may be greater than one) of a Common Unit and after giving effect to the special allocations set forth in Section 6.1C, Section 6.1D and Section 6.1E hereof and after giving effect to special allocations with respect to LTIP Units set forth in Section 6.1I hereof, and the allocations of Profit under Section 6.1A(1) (including, for the avoidance of doubt Liquidating Gains that are a component of Profit), and subject to the other provisions of this Section 6.1, but before allocations of Profit are made under Section 6.1A(2), the Partnership will, consistent with Section 6.1I(3), specially allocate Liquidating Gain and Liquidating Loss to the Partners (including, for the avoidance of doubt, any transferee Partner of a Common Unit described herein) until and in a manner that causes, as promptly as practicable, the portion of the Economic Capital Account Balance of the Partner holding the fraction (which may be greater than one) of a Common Unit received upon the conversion of the AOLTIP Unit to equal the Common Unit Economic Balance multiplied by a fraction (which may be greater than one) equal to the fraction of the Common Unit issued in the conversion. Liquidating Gain allocated to a holder of a fraction of a Common Unit pursuant to this Section 6.1.O by reason of holding a fraction of a Common Unit will generally be attributed to specific Common Units in proportion to the aggregate amounts required to be allocated with respect to each Common Unit.
Section 6.2 Capital Accounts
A separate capital account (a “Capital Account”) shall be established and maintained for each Partner in accordance with Regulations Section 1.704-1(b)(2)(iv). Consistent with the provisions of Regulations Section 1.704-1(b)(2)(iv)(f), (i) immediately prior to the acquisition of an additional Partnership Interest by any new or existing Partner in connection with the contribution of money or other property (other than a de minimis amount) to the Partnership, (ii) immediately prior to the distribution by the Partnership to a Partner of Partnership property (other than a de minimis amount) as consideration for a Partnership Interest, (iii) upon the acquisition of a more than de minimis additional interest in the Partnership by any new or existing Partner as consideration for the provision of services to or for the benefit of the Partnership in a partner capacity or in anticipation of becoming a Partner, (iv) upon the grant of
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any LTIP Unit or AOLTIP Unit, and (v) immediately prior to the liquidation of the Partnership as defined in Regulations Section 1.704-1(b)(2)(ii)(g), the book value of all Partnership assets shall be revalued upward or downward to reflect the fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) of each such Partnership asset unless the General Partner shall determine that such revaluation is not necessary to maintain the Partner’s intended economic arrangements and for the avoidance of doubt may be so revalued at such other times permitted by such Regulations. If the Capital Accounts of the Partners are adjusted pursuant to Regulations Section 1.704-1(b)(2)(iv)(f) to reflect revaluations of Partnership property, (i) the Capital Accounts of the Partners shall be adjusted in accordance with Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization and gain or loss, as computed for book purposes, with respect to such property, (ii) the Partners’ distributive shares of depreciation, depletion, amortization and gain or loss, as computed for U.S. federal income tax purposes, with respect to such property shall be determined so as to take account of the variation between the adjusted tax basis and book value of such property in the same manner as under Section 704(c) of the Code, and (iii) the amount of upward and/or downward adjustments to the book value of the Partnership property shall be treated as income, gain, deduction and/or loss for purposes of applying the Capital Account allocation provisions of this Article 6. If Section 704(c) of the Code applies to Partnership property, the Capital Accounts of the Partners shall be adjusted in accordance with Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization and gain and loss, as computed for book purposes, with respect to such property.
Section 6.3 Tax Allocations
Allocations of income, gain, loss, expense and deduction (and all items contained therein) for U.S. federal income tax purposes shall be identical to the corresponding allocations of items to the Capital Accounts as set forth in or otherwise under Section 6.1, except as otherwise required by Section 6.2 or Section 704(c) of the Code and Regulations Section 1.704-1(b)(4). The General Partner shall have the authority to elect the methods to be used by the Partnership for allocating tax items of income, gain and expense as required by Section 704(c) of the Code and Regulations Section 1.704-1(b)(4), including the use of different methods for different items and different properties, except as otherwise agreed upon by the General Partner and one or more Limited Partners (or direct or indirect owners thereof), and such election shall be binding on all Partners.
Section 6.4 Substantial Economic Effect
It is the intent of the Partners that the allocations of Profit and Loss (and items) under this Agreement have substantial economic effect (or be consistent with the Partners’ interests in the Partnership in the case of the allocation of losses attributable to nonrecourse debt or any other allocations that cannot have substantial economic effect under the Code) within the meaning of Section 704(b) of the Code as interpreted by the Regulations promulgated pursuant thereto. Article 6 and other relevant provisions of this Agreement shall be interpreted in a manner consistent with such intent. The provisions of this Agreement relating to the maintenance of
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Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations. In the event the General Partner shall determine that it is prudent to modify (i) the manner in which the Capital Accounts, or any debits, or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Partnership, the General Partner, or the Limited Partners) are computed; or (ii) the manner in which items are allocated among the Partners for U.S. federal income tax purposes in order to comply with such Regulations or to comply with Section 704(c) of the Code, the General Partner may make such modification without regard to Article 14 of this Agreement, provided that it is not likely to have a material effect on the amounts distributable to any Person pursuant to Article 13 of this Agreement upon the dissolution of the Partnership. The General Partner also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the aggregate Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q); and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b). In addition, the General Partner may adopt and employ such methods and procedures for (i) the maintenance of book and tax capital accounts; (ii) the determination and allocation of adjustments under Sections 704(c), 734, and 743 of the Code; (iii) the determination of Profit and Loss and the determination of items of income, gain, deduction, expense and loss (for purposes of maintaining Capital Accounts and/or for tax purposes; (iv) the adoption of reasonable conventions and methods for the valuation of assets and the determination of tax basis; (v) the allocation of asset value and tax basis; and (vi) conventions for the determination of cost recovery, depreciation and amortization deductions, (for Capital Account and/or tax purposes) as it determines in its sole discretion are necessary or appropriate to execute the provisions of this Agreement, to comply with U.S. federal and state tax laws, and/or are in the best interest of the Partners.
ARTICLE 7 - MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A.Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner, in its capacity as such, shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner, which consent may be withheld in its sole and absolute discretion. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3 and Section 11.2, shall have full and exclusive power and authority to do all things deemed necessary or desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 3.2 and to effectuate the purposes set forth in Section 3.1 (subject to the proviso in Section 3.2), including, without limitation:
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(1)the making of any expenditures, the lending or borrowing of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will allow the Company to (i) meet its distribution requirement for qualification as a REIT as set forth in Section 857 of the Code and (ii) avoid or reduce any U.S. federal income or excise tax liability imposed by the Code, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any obligations it deems necessary for the conduct of the activities of the Partnership;
(2)the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(3)subject to Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger, consolidation, reorganization or other combination of the Partnership with or into another entity on such terms as the General Partner deems proper (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(4)the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any or all of the assets of the Partnership, and the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms the General Partner deems proper, including, without limitation, the financing of the conduct of the operations of the Company, the Partnership or any Subsidiary of the Company and/or the Partnership, the lending of funds to other Persons (including, without limitation, the Company or any Subsidiary of the Company and/or the Partnership) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions and equity investments to its Subsidiaries;
(5)the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership, any other asset of the Partnership or any Subsidiary of the Partnership, or any Person in which the Partnership has made a direct or indirect equity investment;
(6)the negotiation, execution, and performance of any contracts, leases, conveyances or other instruments that the General Partner considers useful or
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necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(7)the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(8)the holding, managing, investing and reinvesting of cash and other assets of the Partnership;
(9)the collection and receipt of revenues, rents and income of the Partnership;
(10)the establishment of one or more divisions of the Partnership, the selection and dismissal of employees (if any) of the Partnership or any Subsidiary of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” ), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(11)the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership, the Partners (including, without limitation, the Company) and the directors and officers thereof as the General Partner deems necessary or appropriate;
(12)the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, joint ventures, corporations or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided that, as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(13)the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(14)taking of any action necessary or appropriate to comply with all regulatory requirements applicable to the Partnership in respect of its business, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports, filings and documents, if any,
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required under the Exchange Act, the Securities Act, or by National Securities Exchange requirements;
(15)the control of any matters affecting the rights and obligations of the Partnership and any Subsidiary of the Partnership, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership or any Subsidiary of the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and the representation of the Partnership or any Subsidiary of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(16)the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons, incurring indebtedness on behalf of, or guarantying the obligations of, any such Persons);
(17)the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(18)the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(19)the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership or any Subsidiary of the Partnership;
(20)the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(21)the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(22)the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
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(23)the maintenance of the Partnership’s books and records;
(24)the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with capital contributions by Additional Limited Partners and additional capital contributions by Partners pursuant to Article 4 hereof;
(25)the selection and dismissal of General Partner employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(26)the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.5 hereof;
(27)the collection and receipt of revenues and income of the Partnership;
(28)maintaining or causing to be maintained, the books and records of the Partnership to reflect accurately at all times the capital contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or Substituted Limited Partner or otherwise;
(29)any election to dissolve the Partnership pursuant to Section 13.1(A)(2);
(30)the registration of any class of securities under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(31)the entering into of listing agreements with any National Securities Exchange and the listing of any securities of the Partnership on such exchange;
(32)the delisting of some or all of the Partnership Units from, or the requesting that trading be suspended on, any National Securities Exchange;
(33)the taking of any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as an association taxable as a corporation for U.S. federal income tax purposes or a “publicly traded partnership” for purposes of Section 7704 of the Code, including but not limited to imposing restrictions on transfers, restrictions on the number of Partners and restrictions on redemptions; and
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(34)to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the General Partner deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Partnership (including, without limitation, all actions consistent with allowing the Company at all times to qualify as a REIT unless the Company voluntarily terminates its REIT status) and to possess and enjoy all the rights and powers of a general partner as provided by the Act.
B.Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C.The General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D.The General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties, (ii) liability insurance for the Indemnitees hereunder and (iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be necessary.
E.Except as provided in this Agreement with respect to the qualification of the Company as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner (or a direct or indirect owner thereof), in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Company) of any action taken (or not taken) by it. Except as provided in this Agreement with respect to the qualification of the Company as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F.The determination as to any matter relating to the business and affairs of the Partnership made by or at the direction of the General Partner consistent with this Agreement and the Act shall be final and conclusive and shall be binding upon the Partnership and, absent manifest error, every Limited Partner and shall not constitute a breach of this Agreement, of any agreement contemplated herein or therein, or of any fiduciary or other duty hereunder or otherwise existing at law, in equity or otherwise. The foregoing shall apply, without limitation, to
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the following: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and timing of any distribution; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Partner’s Capital Account; the amount of Profit or Loss for any period; the value of any Partnership asset; the Value of any REIT Share; the amount of the Conversion Factor at any time; any election, or failure to elect, to require the Company to acquire Tendered Units in exchange for REIT Shares; whether any acquisition of Tendered Units in exchange for REIT Shares would or might cause any Person to violate the Ownership Limit; the REIT Shares Amount at any time; whether the transfer of any Units would cause the Partnership to be classified as a “publicly traded partnership “ under Section 7704(b) of the Code; any interpretation of this Agreement or the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or distributions, qualifications or terms or conditions of redemption of any class or series of Partnership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Partnership or of any Partnership Interest; the number of authorized or outstanding Partnership Units of any class or series; any matter relating to the acquisition, holding and disposition of any assets by the Partnership; or any other matter relating to the business and affairs of the Partnership or required or permitted by applicable law, this Agreement or otherwise to be determined by the General Partner.
Section 7.2 Certificate of Limited Partnership
To the extent that such action is determined by the General Partner to be reasonable and necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all of the things to maintain the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability) under the laws of the State of Delaware and each other state, or the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property. Subject to the terms of Section 8.4A(3) hereof, the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership or any amendment thereto to any Limited Partner. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents as may be reasonable and necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware and any other state, or the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property.
Section 7.3 Restrictions on General Partner Authority
The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement without the written Consent of a Majority in Interest of the Outside Limited Partners or such other percentage of the Limited Partners as may be specifically provided for under a provision of this Agreement and may not perform any act that would
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subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as provided herein or under the Act.
Section 7.4 Reimbursement of the General Partner and the Company
A.Except as provided in this Section 7.4 and elsewhere in this Agreement (including the provisions of Article 5 and Article 6 regarding distributions, payments, and allocations to which it may be entitled), the General Partner shall not be compensated for its services as the General Partner of the Partnership.
B.The Partnership shall be responsible for and shall pay all expenses relating to the Partnership’s, the General Partner’s and the Company’s organization, the ownership of their assets and their operations, including, without limitation, the Administrative Expenses. Except to the extent provided in this Agreement, the General Partner, the Company and their Affiliates shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine in its sole and absolute discretion, for all such expenses. The Partners acknowledge that all such expenses of the General Partner and/or the Company are deemed to be for the benefit of the Partnership. Such reimbursement shall be in addition to any reimbursement made as a result of indemnification pursuant to Section 7.7. In the event that certain expenses are incurred for the benefit of the Partnership and other entities (including the General Partner and the Company), such expenses will be allocated to the Partnership and such other entities in such a manner as the General Partner in its sole and absolute discretion deems fair and reasonable. To the extent permitted by law and subject to Section 6.1.K and Section 6.1.L, all payments and reimbursements hereunder shall be characterized for U.S. federal income tax purposes as expenses of the Partnership incurred on its behalf, and not as expenses of the General Partner or the Company; provided that for the avoidance of doubt amounts paid by the Partnership to redeem Partnership Units pursuant to Section 7.5.C shall be treated as a distribution for purposes of computing the Partner’s Capital Accounts.
C.If the Company shall elect to purchase from its stockholders REIT Shares or Capital Shares (i) for the purpose of delivering such REIT Shares or Capital Shares to satisfy an obligation under any dividend reinvestment program adopted by the Company, any employee stock purchase plan adopted by the Company or any of its Subsidiaries, or any similar obligation or arrangement undertaken by the Company in the future or for the purpose of retiring such REIT Shares or Capital Shares or (ii) for any other reason, the purchase price paid by the Company for such REIT Shares or Capital Shares and any other expenses incurred by the Company in connection with such purchase shall be considered expenses of the Partnership and shall be advanced to the Company or reimbursed to the Company, subject to the conditions that: (a) if such REIT Shares or Capital Shares subsequently are sold by the Company, the Company shall pay to the Partnership any proceeds received by the Company for such REIT Shares or Capital Shares (which sales proceeds shall include the amount of dividends reinvested under any dividend reinvestment or similar program, provided that a transfer of REIT Shares or Capital Shares for Partnership Units pursuant to Section 8.5 would not be considered a sale for such purposes), and (b) if such REIT Shares or Capital Shares are not retransferred by the Company immediately after the purchase thereof, the Company shall cause the Partnership to redeem a
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number of Common Units held by the Company equal to the number of such REIT Shares or Capital Shares divided by the Conversion Factor.
D.As set forth in Section 4.2, but subject to Section 6.1, the Company shall be treated as having made a capital contribution in the amount of all expenses that the Company incurs relating to the Company’s offering of REIT Shares, Capital Shares or New Securities.
Section 7.5 Outside Activities of the General Partner and the Company
A.The General Partner, the Company and any Affiliates of the General Partner or the Company may acquire Limited Partner Interests and shall be entitled to exercise all rights of a Limited Partner relating to such Limited Partner Interests.
B.Each of the Company and the General Partner agrees that all or substantially all of their respective assets, other than their interest in the General Parter or the Partnership, as applicable, will be held by the Partnership. The Company (which for purposes of the rest of this this Section 7.5.B shall include the General Partner) may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Partnership so long as the Company takes commercially reasonable measures to ensure that the economic benefits and burdens of such Property are otherwise vested in the Partnership, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Partnership, the General Partner shall make such amendments or modifications to this Agreement as the General Partner determines are necessary or desirable to reflect such activities and the direct ownership of assets by the Company while preserving the intended economic arrangement, including, without limitation, (i) amendments or modifications to the definition of “Conversion Factor” and (ii) adjustments to distributions intended to provide Common Units (other than Common Units held directly or indirectly by the Company or General Partner) with the same distributions (to the extent possible) that would be made with respect to Common Units if the economic benefits and burdens of such Property were vested in the Partnership rather than retained by the Company). Nothing contained herein shall be deemed to prohibit the Company from executing guarantees of Partnership debt or the use of Funding Debt.
Section 7.6 Contracts with Affiliates
A.The Partnership may lend or contribute funds or other assets to any Subsidiary or other Persons in which it has an equity investment and such Persons may borrow funds from the Partnership, on terms and conditions established in the sole and absolute discretion of the General Partner. The foregoing authority shall not create any right or benefit in favor of any Subsidiary or any other Person.
B.Except as provided in Section 7.5, the Partnership may transfer assets to joint ventures, other partnerships, limited liability companies, business trusts, statutory trusts, corporations or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law as the General Partner, in its sole and absolute discretion, believes are advisable.
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C.Except as expressly permitted by this Agreement, neither the General Partner nor any of its Affiliates shall sell, transfer or convey any property to, or purchase any property from, the Partnership, directly or indirectly, except pursuant to transactions that are determined by the General Partner in good faith to be fair and reasonable.
D.The General Partner, in its sole and absolute discretion and without the approval of the Limited Partners, may propose and adopt, on behalf of the Partnership, employee benefit plans, stock option plans, and similar plans (including without limitation plans that contemplate the issuance of LTIP Units and AOLTIP Units) funded by the Partnership for the benefit of employees, officers, managers and/or directors of the General Partner, the Company the Partnership, any Subsidiary of the Partnership or any Affiliate of any of them in respect of services performed, directly or indirectly, for the benefit of the Partnership, the Company, the General Partner or any Subsidiary of the Partnership.
Section 7.7 Indemnification
A.To the fullest extent permitted by applicable law, the Partnership shall indemnify each Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including, without limitation, attorneys’ fees and other legal fees and expenses), judgments, fines, settlements and other amounts arising from any and all claims, demands, subpoenas, requests for information, formal or informal investigations, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership or the Company or any of their Subsidiaries as set forth in this Agreement, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith, constituted fraud or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty (except a guaranty by a Limited Partner of nonrecourse indebtedness of the Partnership or as otherwise provided in any such loan guaranty) or otherwise for any indebtedness of the Partnership or any Subsidiary of the Partnership (including, without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to), and the General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 7.7A. The termination of any proceeding by conviction of an Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment does not create a presumption that such Indemnitee acted in a manner contrary to that specified in this Section 7.7A. Any indemnification pursuant to this Section 7.7 or pursuant to any indemnity agreement permitted by this Section 7.7 shall be made only out of the assets of the Partnership and any insurance
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proceeds from the liability policy covering the General Partner and any Indemnitees, and neither the General Partner, the Company nor any Limited Partner shall have any obligation to contribute to the capital of the Partnership, or otherwise provide funds, to enable the Partnership to fund its obligations under this Section 7.7 or under such indemnity agreements.
B.To the fullest extent permitted by law, reasonable expenses incurred by an Indemnitee who is a party to a proceeding or the recipient of a subpoena or request for information with respect to a proceeding to which such Indemnitee is not a party shall be paid or reimbursed by the Partnership in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 7.7 has been met and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.
C.The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity unless otherwise provided in a written agreement pursuant to which such Indemnitee is indemnified.
D.The Partnership’s obligation to indemnify or advance expenses hereunder to any Indemnitee shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from any other Person, including the Partnership, the Company or the General Partner, or from any insurance policy or policies.
E.The Partnership may, but shall not be obligated to, purchase and maintain insurance, on behalf of the Indemnitees and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership’s activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
F.For purposes of this Section 7.7, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by an Indemnitee of his, her or its duties to the Partnership also imposes duties on, or otherwise involves services by, an Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of Section 7.7; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership.
G.In no event may an Indemnitee subject any of the Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
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H.An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
I.The provisions of this Section 7.7 are for the benefit of the Indemnitees, their employees, officers, directors, trustees, heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Partnership’s liability to any Indemnitee under this Section 7.7, as in effect immediately prior to such amendment, modification, or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.8 Liability of the General Partner and the Company
A.Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent permitted by applicable law, none of the General Partner, the Company, nor any of their directors, officers, agents or employees shall be liable or accountable in monetary damages or otherwise to the Partnership, any Partners or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or any act or omission unless the General Partner acted in bad faith and the act or omission was material to the matter giving rise to the loss, liability or benefit not derived.
B.The Limited Partners expressly acknowledge that the General Partner is acting for the benefit of the Partnership, the Limited Partners and the Company’s stockholders collectively, and that the Company and the General Partner are under no obligation to consider or give priority to the separate interests of the Limited Partners or the Company’s stockholders (including, without limitation, the tax consequences to the Limited Partners, Assignees or the Company’s stockholders) in deciding whether to cause the Partnership to take (or decline to take) any actions. Unless otherwise provided in a separate written agreement between the Partnership and a Limited Partner, if there is a conflict between the interests of the stockholders of the Company on one hand and the Limited Partners on the other hand, the General Partner shall endeavor in good faith to resolve the conflict in a manner not adverse to either the stockholders of the Company or the Limited Partners; provided, however, that for so long as the Company owns a direct or indirect controlling interest in the Partnership, any such conflict that cannot be resolved in a manner not adverse to either the stockholders of the Company or the Limited Partners shall be resolved in favor of the stockholders of the Company. Neither the General Partner nor the Company shall be liable under this Agreement to the Partnership or to any Partner for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions; provided that the General Partner has acted in good faith.
C.Subject to its obligations and duties as General Partner set forth in Section 7.1A, the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or
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through its agents. The General Partner shall not be liable to the Partnership or any Partner for any misconduct or negligence on the part of any such agent appointed by the General Partner in good faith.
D.Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the General Partner or the directors, officers or agents of the General Partner, the Company, or of the directors, officers, stockholders, employees or agents of the Company, or the Indemnitees, to the Partnership, the Partners or any other Person bound by this Agreement under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
E.To the extent that, at law or in equity, the General Partner or the Company in its capacity as a Limited Partner, has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or the Limited Partners, neither the General Partner nor the Company shall be liable to the Partnership or to any other Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of the General Partner, the Company or any other Person under the Act or otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of the General Partner and the Company.
F.Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities or other express agreement (including any express obligation to restore a deficit balance in a Partner’s Capital Account) given to the Partnership by any Partner pursuant to any other written instrument, no Partner shall have any personal liability whatsoever, to the Partnership or to the other Partner(s), for the debts or liabilities of the Partnership or the Partnership’s obligations hereunder, and the full recourse of the other Partner(s) shall be limited to the interest of that Partner in the Partnership. To the fullest extent permitted by law, no officer, director or stockholder of the General Partner or the Company shall be liable to the Partnership for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Partner, other than its interest in the Partnership, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Partner(s) and arising out of, or in connection with, this Agreement. This Agreement is executed by the officers of the Company solely as officers of the same, in the Company’s capacity as the sole member of the General Partner, and not in their own individual capacities.
Section 7.9 Other Matters Concerning the General Partner and the Company
A.The General Partner and the Company may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
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report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
B.The General Partner and the Company may consult with legal counsel, accountants, appraisers, management consultants, investment bankers, architects, engineers, environmental consultants and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters which such General Partner and the Company reasonably believe to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.
C.The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and duly appointed attorney or attorneys-in-fact. Each such attorney shall, to the extent provided by the General Partner in the power of attorney, have full power and authority to do and perform all and every act and duty which is permitted or required to be done by the General Partner hereunder.
D.Notwithstanding any other provisions of this Agreement or the Act, any action of the General Partner or the Company on behalf of the Partnership or any decision of the General Partner or the Company to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Company to continue to qualify as a REIT, or (ii) to avoid the Company from incurring any taxes under Section 857 or Section 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners.
Section 7.10 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof, including, without limitation, intellectual property (and no Limited Partner shall be deemed to have a license or other right to intellectual property of the Partnership, the General Partner or the Company by virtue of being a Limited Partner). Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner or one or more nominees, as the General Partner may determine, including Affiliates of the General Partner. Subject to Section 7.5, the General Partner hereby declares and warrants that any Partnership assets for which legal title is held in the name of the General Partner or any nominee or Affiliate of the General Partner shall be held by the General Partner or such nominee or Affiliate for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided, however, that the General Partner shall use its best efforts to cause beneficial and record title to such assets to be vested in the Partnership as soon as reasonably practicable if failure to so vest such title would have a material adverse effect on the Partnership. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which legal title to such Partnership assets is held.
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Section 7.11 Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner has full power and authority, without the consent or approval of any other Partner or Person, to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts on behalf of the Partnership, and take any and all actions on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner as if the General Partner were the Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies which may be available against such Person to contest, negate or disaffirm any action of the General Partner in connection with any such dealing. In no event shall any Person dealing with the General Partner or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying in good faith thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect; (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.
ARTICLE 8 - RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability
No Limited Partner, including the Company, acting in its capacity as such, shall have any liability under this Agreement (other than for breach thereof) except as expressly provided in this Agreement or under the Act.
Section 8.2 Management of Business
No Limited Partner or Assignee (other than the Company, the General Partner, any of their Affiliates or any officer, director, employee, partner, agent or trustee of the Company, the General Partner, the Partnership or any of their Affiliates, in their capacity as such) shall take part in the operations, management or control (within the meaning of the Act) of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. The transaction of any such business by the Company, the General Partner, any of their Affiliates or any officer, director, employee, partner, agent or trustee of the Company, the General Partner, the Partnership or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Limited Partners or Assignees under this Agreement.
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Section 8.3 Outside Activities of Limited Partners
Subject to any other agreements with the Partnership, the General Partner or Subsidiaries thereof to the contrary, any Limited Partner (including, subject to Section 7.5 hereof, the Company) and any officer, director, employee, agent, trustee, Affiliate or stockholder of any Limited Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities that are in direct competition with the Partnership or that are enhanced by the activities of the Partnership. Neither the Partnership nor any Partners shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner or Assignee. Subject to such agreements, none of the Limited Partners (other than the Company) nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any business ventures of any other Person (other than the Limited Partners benefiting from the business conducted by the General Partner) and such Person shall have no obligation pursuant to this Agreement to offer any interest in any such business ventures to the Partnership, any Limited Partner, the Company or any such other Person, even if such opportunity is of a character which, if presented to the Partnership, any Limited Partner, the Company or such other Person, could be taken by such Person.
Section 8.4 Rights of Limited Partners Relating to the Partnership
A.In addition to the other rights provided by this Agreement or by the Act, and except as limited by Section 8.4C, each Limited Partner shall have the right, for a business purpose reasonably related to such Limited Partner’s interest as a limited partner in the Partnership, upon written demand with a statement of the purpose of such demand and at such Limited Partner’s own expense (including such copying and administrative charges as the General Partner may establish from time to time):
(1)to obtain a copy of the most recent annual and quarterly reports filed with the Commission by the Company pursuant to the Exchange Act;
(2)to obtain a current list of the name and last known business, residence or mailing address of each Partner; and
(3)to obtain a copy of this Agreement and the Certificate of Limited Partnership and all amendments thereto, together with executed copies of all powers of attorney pursuant to which this Agreement and the Certificate of Limited Partnership and all amendments thereto have been executed.
B.The Partnership shall notify each Limited Partner, upon request, of the then current Conversion Factor and the REIT Shares Amount per Common Unit.
C.Notwithstanding any other provision of this Section 8.4, the General Partner may keep confidential from the Limited Partners, for such period of time as the General Partner determines in its sole and absolute discretion to be reasonable, any information that (i) the General Partner believes to be in the nature of trade secrets or other information, the disclosure of which the General Partner in good faith believes is not in the best interests of the
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Partnership or could damage the Partnership or its business or (ii) the Partnership or the General Partner is required by law or by agreements with unaffiliated third parties to keep confidential.
Section 8.5 Redemption Right
A.Except as otherwise set forth in any separate agreement entered into between the Partnership and a Limited Partner and subject to the terms and conditions set forth therein or in any other provision of this Agreement, on or after the date that is fourteen (14) months from the date of issuance of a Common Unit to a Limited Partner, such Limited Partner (other than the Company or any Subsidiary of the Company) shall have the right (the “Redemption Right”) to require the Partnership to redeem on a Specified Redemption Date all or a portion of the Common Units held by such Limited Partner (such Common Units being hereafter referred to as “Tendered Units”) in exchange for the Cash Amount; unless the terms of this Agreement or a separate agreement entered into between the Partnership and the Holder of such Common Units expressly provide that such Common Units are not entitled to the Redemption Right. The Partnership may, in the General Partner’s sole and absolute discretion, redeem Tendered Units at the request of the Holder of such Common Units prior to the end of the applicable 14 month period (or such other period as may be specified in any separate agreement entered into between the Partnership and a Limited Partner). Unless otherwise expressly provided in this Agreement or in a separate agreement entered into between the Partnership and the Holders of such Common Units, all Common Units shall be entitled to the Redemption Right. The Tendering Partner (as defined below) shall have no right, with respect to any Common Units so redeemed, to receive any distributions with a Partnership Record Date on or after the Specified Redemption Date. Any Redemption Right shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Limited Partner who is exercising the right (the “Tendering Partner”). The Cash Amount shall be payable in accordance with instructions set forth in the Notice of Redemption to the Tendering Partner on the Specified Redemption Date. Any Common Units redeemed by the Partnership pursuant to this Section 8.5A shall be cancelled upon such redemption.
B.Notwithstanding the provisions of Section 8.5A above, if a Limited Partner has delivered to the General Partner a Notice of Redemption then the Company may, in its sole and absolute discretion (subject to Section 8.5D), elect to assume and satisfy the Partnership’s Redemption Right obligation and acquire some or all of the Tendered Units from the Tendering Partner in exchange for the REIT Shares Amount (as of the Specified Redemption Date) and, if and to the extent the Company so elects, the Tendering Partner shall sell the Tendered Units to the Company in exchange for the REIT Shares Amount. Upon the Company’s election to purchase Tendered Units pursuant to this Section 8.5B, the Tendering Partner shall have no right to cause the Partnership to redeem such Tendered Units to which such election relates and the obligation of the Partnership to effect a redemption of the Tendered Units as to which the General Partner’s election relates shall not accrue or arise. The Company shall give such Tendering Partner written notice of its election on or before the close of business on the tenth Business Day after its receipt of the Notice of Redemption. The Tendering Partner shall submit (i) such information, certification or affidavit as the Company may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (ii) such
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written representations, investment letters, legal opinions or other instruments necessary, in the Company’ view, to effect compliance with the Securities Act. The REIT Shares Amount, if applicable, shall be delivered as duly authorized, validly issued, fully paid and nonassessable REIT Shares and, if applicable, free of any pledge, lien, encumbrance or restriction, other than those provided in the Articles of Incorporation or the Bylaws of the Company, the Securities Act, relevant state securities or blue sky laws and any applicable agreements with respect to such REIT Shares entered into by the Tendering Partner. Notwithstanding any delay in such delivery (but subject to Section 8.5D), the Tendering Partner shall be deemed the owner of such REIT Shares for all purposes, including without limitation, rights to vote or consent, and receive dividends, as of the Specified Redemption Date. In addition, the REIT Shares for which the Common Units might be exchanged shall also bear all legends deemed necessary or appropriate by the Company. Neither any Tendering Partner whose Tendered Units are acquired by the Company pursuant to this Section 8.5B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Company to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 8.5B, with the Commission, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; unless subject to a separate written agreement pursuant to which the Company has granted registration or similar rights to any such Person.
C.Each Tendering Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the General Partner free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the General Partner shall be under no obligation to acquire the same. Each Tendering Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to the General Partner (or its designee), such Tendering Partner shall assume and pay such transfer tax. Each Tendering Partner further agrees to pay to the Partnership the amount of any tax withholding due upon the redemption of Tendered Units and authorizes the Partnership to retain such portion of the Cash Amount as the Partnership reasonably determines is necessary to satisfy its tax withholding obligations. In the event the Company elects to acquire some or all of the Tendered Units from the Tendering Partner in exchange for the REIT Shares Amount, the Tendering Partner agrees to pay to the Company the amount of any tax withholding due upon the Company’s acquisition of Tendered Units and, in the event the Tendering Partner has not paid or made arrangements satisfactory to the Company, in its sole discretion, to pay the amount of any such tax withholding prior to the Specified Redemption Date, the Company may elect to either cancel such exchange (in which case the Tendering Partner’s exercise of the Redemption Right will be null and void ab initio), satisfy such tax withholding obligation by retaining REIT Shares with a fair market value, as determined by the Company in its sole discretion, equal to the amount of such obligation or satisfy such tax withholding obligation using amounts paid by the Partnership, which amounts shall be treated as a loan by the Partnership to the Tendering Partner in the manner set forth in Section 5.1.B.
D.Notwithstanding the provisions of Section 8.5A, Section 8.5B, Section 8.5C or any other provision of this Agreement, a Limited Partner (i) shall not be entitled
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to effect the Redemption Right for cash or an exchange for REIT Shares to the extent that (if the Company were to elect to acquire the Tendered Units for REIT Shares in accordance with Section 8.5B) the ownership or right to acquire REIT Shares pursuant to such exchange by such Partner on the Specified Redemption Date could cause such Partner or any other Person to violate the Ownership Limit and (ii) shall have no rights under this Agreement to acquire REIT Shares which would otherwise be prohibited under the Articles of Incorporation. Without limiting the foregoing, no redemption or exchange of Tendered Units shall be permitted under this Section 8.5 if and to the extent that it would violate Section 11.6E or any restriction imposed pursuant to Section 11.6F. To the extent any attempted redemption or exchange for REIT Shares would be in violation of this Section 8.5D or Section 11.6E or restrictions imposed under Section 11.6F, it shall be null and void ab initio and such Limited Partner shall not acquire any rights or economic interest in the cash otherwise payable upon such redemption or the REIT Shares otherwise issuable upon such exchange.
E.Notwithstanding anything herein to the contrary (but subject to Section 8.5D), with respect to any redemption or exchange for REIT Shares pursuant to this Section 8.5: (i) without the consent of the General Partner, each Limited Partner may effect the Redemption Right only one time in each fiscal quarter; (ii) without the consent of the General Partner, each Limited Partner may not effect the Redemption Right for less than 250 Common Units or, if the Limited Partner holds less than 250 Common Units, all of the Common Units held by such Limited Partner; (iii) without the consent of the General Partner, each Limited Partner may not effect the Redemption Right during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Company for a distribution to its common stockholders of some or all of its portion of such distribution; (iv) the consummation of any redemption or exchange for REIT Shares shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; and (v) each Tendering Partner shall continue to own all Common Units subject to any redemption or exchange for REIT Shares, and be treated as a Limited Partner with respect to such Common Units for all purposes of this Agreement, until such Common Units are either paid for by the Partnership pursuant to Section 8.5.A hereof or transferred to the Company and paid for by the issuance of the REIT Shares, pursuant to Section 8.5B hereof on the Specified Redemption Date. Until a Specified Redemption Date, the Tendering Partner shall have no rights as a stockholder of the Company with respect to such Tendering Partner’s Common Units.
F.All Common Units acquired by the Company pursuant to Section 8.5.B hereof shall automatically, and without further action required, be converted into and deemed to be Limited Partner Interests and held by the Company in its capacity as a Limited Partner in the Partnership.
G.In the event that the Partnership issues additional Partnership Interests to any Additional Limited Partner pursuant to Section 4.2, the General Partner shall make such revisions to this Section 8.5 as it determines are necessary to reflect the issuance of such additional Partnership Interests.
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Section 8.6 Partnership Right to Call Common Units
Notwithstanding any other provision of this Agreement, and except as set forth in a separate agreement entered into between the Partnership and a Limited Partner, at any time an Outside Limited Partner holds fewer than 1,000 of the outstanding Common Units, the Partnership shall have the right, but not the obligation, from time to time and at any time to redeem all outstanding Common Units owned by such Outside Limited Partner, in each case by treating any such holder of Common Units thereof as a Tendering Party who has delivered a Notice of Redemption for the amount of Common Units to be specified by the General Partner, by notice to such holder that the Partnership has elected to exercise its rights under this Section 8.6. Such notice given by the Partnership to a holder of Common Units pursuant to this Section 8.6 shall be treated as if it were a Notice of Redemption delivered to the General Partner by such holder and shall be subject to the procedures set forth in Section 8.5.
Section 8.7 Rights as Objecting Partner
No Limited Partner and no holder of a Partnership Interest shall be entitled to exercise any of the rights of an objecting stockholder provided for under Title 3, Subtitle 2 of the Maryland General Corporation Law or any successor statute in connection with a merger of the Partnership.
ARTICLE 9 - BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal office of the Partnership those records and documents required to be maintained by the Act and other books and records deemed by the General Partner to be appropriate with respect to the Partnership’s business, including, without limitation, all books and records necessary to provide to the Limited Partners any information, lists and copies of documents required to be provided pursuant to Section 9.3 hereof. Any records maintained by or on behalf of the Partnership in the regular course of its business may be kept on, or be in the form of magnetic tape, photographs, micrographics or any other information storage device, provided that the records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be maintained for financial and tax reporting purposes, on an accrual basis in accordance with U.S. GAAP or such other basis as the General Partner determines to be necessary or appropriate.
Section 9.2 Taxable Year and Fiscal Year
The taxable year of the Partnership shall be the calendar year unless otherwise required by the Code. Unless the General Partner otherwise elects, the fiscal year of the Partnership shall be the same as its taxable year.
Section 9.3 Reports
A.No later than the date on which the Company mails its annual report to its stockholders, the General Partner shall cause to be mailed to each Limited Partner, as of the close
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of the Partnership Year, an annual report containing financial statements of the Partnership, or of the Company if such statements are prepared solely on a consolidated basis with the Company, for such Partnership Year, presented in accordance with U.S. GAAP, such statements to be audited by a nationally recognized firm of independent public accountants selected by the General Partner.
B.The General Partner shall cause to be mailed to each Limited Partner such other information as may be required by applicable law or regulation, or as the General Partner determines to be appropriate.
C.The General Partner shall have satisfied its obligations under Section 9.3A and 9.3B by (i) to the extent the General Partner or the Partnership is subject to periodic reporting requirements under the Exchange Act, filing the quarterly and annual reports required thereunder within the time periods provided for the filing of such reports, including any permitted extensions, or (ii) posting or making available the reports required by this Section 9.3 on the website maintained from time to time by the Partnership or the Company, provided that such reports are able to be printed or downloaded from such website.
ARTICLE 10 - TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely filing of all returns of Partnership income, gains, deductions, losses and other items required of the Partnership for U.S. federal and state income tax purposes and shall use reasonable efforts to furnish, by September 15 of the year following the close of the Partnership Year in question (or equivalent time period for returns prepared on the basis of a taxable year other than the calendar year), the tax information reasonably required by Limited Partners for U.S. federal and state income tax reporting purposes for such Partnership Year.
Section 10.2 Tax Elections
A.Except as otherwise provided herein, the General Partner shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code or other applicable tax law, rule, regulation or administrative guidance or practice, including, but not limited to, the election under Section 754 of the Code. The General Partner shall have the right to seek to revoke any such election it makes (including, without limitation, any election under Section 754 of the Code) upon the General Partner’s determination, in its sole and absolute discretion. Notwithstanding the foregoing, in making any such tax election, the General Partner, may, but shall be under no obligation (unless pursuant to a separate written agreement) to take into account the tax consequences to any Limited Partner resulting from any such election.
B.To the extent provided for in Regulations, revenue rulings, revenue procedures and/or other IRS guidance, the Partnership is hereby authorized to, and at the direction of the General Partner shall, elect a safe harbor under which the fair market value of any Partnership Interests issued in connection with the performance of services after the effective
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date of such Regulations (or other guidance) will be treated as equal to the liquidation value of such Partnership Interests (i.e., a value equal to the total amount that would be distributed with respect to such interests if the Partnership sold all of its assets for their fair market value immediately after the issuance of such Partnership Interests, satisfied its liabilities (excluding any non-recourse liabilities to the extent the balance of such liabilities exceed the fair market value of the assets that secure them) and distributed the net proceeds to the Partners under the terms of this Agreement). In the event that the Partnership makes a safe harbor election as described in the preceding sentence, each Partner hereby agrees to comply with all safe harbor requirements with respect to transfers of such Partnership Interests while the safe harbor election remains effective.
C.A Partner’s “interest in partnership profits” for purposes of determining its share of the excess nonrecourse liabilities of the Partnership within the meaning of Regulations Section 1.752-3(a)(3) shall be such Partner’s Percentage Interest except as otherwise determined by the General Partner in its sole discretion, consistent with Section 752 and the Treasury Regulations thereunder.
Section 10.3 Partnership Representative
A.The General Partner shall designate the “partnership representative” of the Partnership (the “Partnership Representative”) for purposes of, and in accordance with, Section 6223 of the Code (and any similar or corresponding provision of state, local or non-U.S. tax law), which designee may be the General Partner or the Company, and the General Partner, or the Partnership Representative at the direction of the General Partner, shall be permitted to appoint any “designated individual” (a “Designated Individual”) within the meaning of Treasury Regulations Section 301.6223-1. If the Partnership is required to appoint a Designated Individual pursuant to Section 6223 of the Code and Treasury Regulations thereunder (or any similar or corresponding provision of state, local or non-U.S. tax law) for any taxable year or other period, such Designated Individual shall be subject to this Agreement in the same manner as the Partnership Representative (and references to the Partnership Representative shall include any such Designated Individual unless the context otherwise requires or shall mean solely the Designated Individual as needed to comply with applicable law). The Partnership Representative may be removed, and a new Partnership Representative appointed, by the General Partner in accordance with the Code and the Treasury Regulations. The Partnership Representative shall not take any action in connection with a tax audit, or make any tax election, without approval of the General Partner. Any reasonable out-of-pocket cost incurred by the Partnership Representative (and Designated Individual), acting in its capacity as such, shall be deemed costs and expenses of the Partnership, and the Partnership shall reimburse the Partnership Representative (or Designated Individual, as applicable) for such amounts.
B.Each Partner hereby agrees (i) to take such actions as may be required to effect the appointed Partner’s designation as the Partnership Representative, (ii) to cooperate to provide any information or take such other actions as may be reasonably requested by the Partnership Representative in order to modify any Imputed Underpayment Amount pursuant to Section 6225(c) of the Code (or any similar or corresponding provision of state, local or non-
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U.S. tax law), (iii) to, upon the request of the Partnership Representative, take such actions as may be required to effect any election or procedure under Sections 6221 through 6241 of the Code and the Treasury Regulations promulgated thereunder with respect thereto (or any similar or corresponding provision of state, local or non-U.S. tax law), (iv) to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably requested by the Partnership Representative in connection with any tax audit, (v) if reasonably requested by the Partnership Representative, to deliver to the Partnership Representative (A) any certificates, forms, affidavits, or instruments reasonably requested by the Partnership Representative relating to such Partner’s status under any tax laws, (including, but limited to, evidence of the filing of tax returns and/or payment of tax) and (B) any information reasonably requested by the Partnership Representative in connection with any tax audit or proceeding (including, but not limited to, upper-tier shareholder specific information if a Partner is or becomes an S corporation for U.S. federal income tax purposes, upper-tier partner specific information if a Partner is or becomes a partnership for U.S. federal income tax purposes, tax returns, information regarding the character of income as capital gain or qualified dividend income, and information regarding passive activity losses). The Partners acknowledge and agree that the actions that can be required under this Section 10.3.B include, without limitation and for the avoidance of doubt, filing an amended U.S. federal income tax return or following an alternative procedure to filing an amended U.S. federal income tax return, as described in Section 6225(c)(2) of the Code, paying any and all resulting U.S. federal income taxes in a timely fashion, providing all necessary information to the Partnership to support the modification of the tax rate applicable to any Imputed Underpayment Amount pursuant to Section 6225(c)(4) of the Code, and providing an affidavit to the Partnership Representative that such actions have been taken).
C.The provisions of this Section 10.3, including the Partnership Representative’s authority under this section, shall survive the termination, dissolution, liquidation and winding up of the Partnership and the termination, redemption or transfer of any Partner’s interest in the Partnership and shall remain binding on each Partner for the period of time necessary to resolve any tax audit or tax proceeding involving or related to the Partnership and/or its Subsidiaries.
D.The Partnership Representative is authorized, but not required (and the Partners hereby consent to the Partnership Representative taking the following actions):
(1)to allocate any Imputed Underpayment Amount to those Partners to whom such amounts are reasonably attributable;
(2)to make the election under Section 6221(b) of the Code, if available;
(3)to enter into any settlement with the IRS with respect to any tax audit or judicial review for the adjustment of Partnership items required to be taken into account by a Partner or the Partnership for income tax purposes, and in the settlement agreement the partnership representative may expressly state that such agreement shall bind the Partnership and all Partners;
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(4)to seek judicial review of any adjustment assessed by the IRS or any other tax authority, including the filing of a petition for readjustment with the Tax Court or the filing of a complaint for refund with the United States Claims Court or the District Court of the United States for the district in which the Partnership’s principal place of business is located;
(5)to intervene in any action brought by any other Partner for judicial review of a final adjustment;
(6)to file a request for an administrative adjustment with the IRS or other tax authority at any time and, if any part of such request is not allowed by the IRS or other tax authority, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request;
(7)to enter into an agreement with the IRS or other tax authority to extend the period for assessing any tax which is attributable to any item required to be taken into account by a Partner for tax purposes, or an item affected by such item;
(8)to take any other action on behalf of the Partners of the Partnership in connection with any tax audit or judicial review proceeding, to the extent permitted by applicable law or regulations including, without limitation: (a) electing to have the alternative method for the underpayment of taxes set forth in Section 6226 of the Code apply to the Partnership and its current and former Partners and (b) for Partnership level assessments under Section 6225 of the Code, setting aside reserves from available cash of the Partnership, withholding of distributions of available cash to the Partners, and requiring current or former Partners to make cash payments to the Partnership for their share of the Partnership level assessments in accordance with Section 5.1.B; and
(9)to take any other action required or permitted by the Code and Regulations in connection with its role as the partnership representative.
The taking of any action and the incurring of any expense by the Partnership Representative in connection with any such audit or proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the Partnership Representative.
E.The Partnership Representative shall receive no compensation for its services. All third-party costs and expenses incurred by the Partnership Representative in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Partnership. Nothing herein shall be construed to restrict the Partnership from engaging an accounting or law firm to assist the Partnership Representative in discharging its duties hereunder, so long as the compensation paid by the Partnership for such services is reasonable.
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Section 10.4 Organizational Expenses
The General Partner may cause the Partnership to elect to deduct expenses, if any, incurred by it in organizing the Partnership ratably over a 180-month period as provided in Section 709 of the Code.
Section 10.5 Tax Information to Be Provided by Partners
A.Each Outside Limited Partner shall provide such information, documentation or certification as may be reasonably requested by the Partnership, the General Partner or the Company, or any delegate or agent of any of the foregoing, (i) to determine whether withholding or other tax payments may be required (or the amount of such tax payments) with respect to such Outside Limited Partner’s interest in the Partnership, (ii) in connection with (including to determine the applicability of or to comply with) any tax filing or tax reporting or other tax compliance obligations of the Partnership, the General Partner, the Company and/or any Affiliate or Subsidiary thereof (and/or any other entity in which the Partnership directly or indirectly invests), including without limitation any tax return, tax reporting, tax withholding, tax payment obligations or information filing requirements of any such Person), and/or (iii) to comply with, to obtain a reduced rate of, or exemption from, any applicable tax, whether pursuant to the laws of such jurisdiction or an applicable tax treaty, or for any other reason related to tax compliance or the tax status of the Partnership or any other entity in which the Partnership directly or indirectly invests (collectively, “Tax Information”). Such Tax Information may include, without limitation, information regarding the ultimate beneficial owners, account holders and controlling persons of any Outside Limited Partner. Each Outside Limited Partner acknowledges and agrees that the General Partner may provide any such Tax Information to any applicable tax authority and any other Person where required for the purposes described above. Any taxes (including increases in taxes), penalties or interest imposed by any jurisdiction or otherwise withheld by any Person as a result of an Outside Limited Partner’s failure to timely provide any requested Tax Information (regardless of whether such Tax Information is reasonably requested) shall be treated as Withholding Payments with respect to such Outside Limited Partner, and each Outside Limited Partner agrees to indemnify and hold harmless the Partnership, the General Partner, the Company and/or any Affiliate or Subsidiary thereof (and/or any other entity in which the Partnership directly or indirectly invests) from and against any liability, claim or expense as a result of any inaccuracy or incompleteness in Tax Information provided by such Outside Limited Partner or the Outside Limited Partner’s failure to provide Tax Information, including without limitation as a result of any incorrect reporting that may result therefrom. Each Outside Limited Partner further agrees to update or replace any such Tax Information promptly to the extent such Outside Limited Partner is aware of any material changes to any of the Tax Information it has provided, or that such Tax Information has become obsolete.
B.Without limiting the generality of Section 10.5A, each Outside Limited Partner shall be required to provide such information as reasonably requested by the Partnership in order to determine whether such Limited Partner: (i) owns, directly or constructively (within the meaning of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code and
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Section 7704(d)(3) of the Code), 5% or more of the value of the Partnership; or (ii) owns, directly or constructively (within the meaning of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code and Section 7704(d)(3) of the Code), 10% or more of (a) the stock, by voting power or value, of a tenant of the Partnership that is a corporation or (b) the assets or net profits of a tenant of the Partnership that is a noncorporate entity. For purposes of clause (ii) of the preceding sentence, references to a tenant of the Partnership include a tenant of any entity in which the Partnership is a direct or indirect owner (including any REIT Subsidiary).
ARTICLE 11 - TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
A.The term “transfer,” when used in this Article 11 with respect to a Partnership Unit, shall be deemed to refer to a transaction by which the General Partner purports to assign all or any part of its General Partner Interest to another Person or by which a Limited Partner purports to assign all or any part of its Limited Partner Interest to another Person, and includes a sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by operation of law or otherwise. The term “transfer” when used in this Article 11 does not include (i) any redemption of Partnership Interests by the Partnership from a Limited Partner or any acquisition of Partnership Units from a Limited Partner by the Company pursuant to Section 8.5 except as otherwise provided herein, (ii) any conversion of LTIP Units into Common Units pursuant to the terms of this Agreement or (iii) any pledge, encumbrance, hypothecation or mortgage by the General Partner or the Company of all or any portion of its Partnership Interest. No part of the interest of a Limited Partner shall be subject to the claims of any creditor, any spouse for alimony or support, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement or consented to in writing by the General Partner.
B.No Partnership Interest may be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article 11. Any transfer or purported transfer of a Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio unless consented to in writing by the General Partner, in its sole and absolute discretion.
Section 11.2 Transfer of the Company’s and General Partner’s Partnership Interest and Limited Partner Interest; Extraordinary Transactions
A.The General Partner may not transfer any of its General Partner Interest or withdraw as General Partner, and the Company may not, directly or through its wholly owned Subsidiaries, transfer any of its Limited Partner Interest or engage in an Extraordinary Transaction, except, in any such case, (i) if such Extraordinary Transaction, or such withdrawal or transfer, is pursuant to an Extraordinary Transaction that is permitted under Section 11.2B, (ii) if the Majority in Interest of the Outside Limited Partners Consent to such withdrawal or transfer or Extraordinary Transaction or (iii) if such transfer is to the Company or to an entity that is wholly owned by the Company (directly or indirectly), including any Qualified REIT Subsidiary
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or any other entity disregarded as an entity separate from the Company for U.S. federal income tax purposes.
B.Notwithstanding any other provision of this Agreement, but subject to compliance with the terms and conditions of Section 1.10 of Exhibit B and Section 1.8 of Exhibit C, the General Partner and the Company are permitted to engage (and cause the Partnership to participate) in the following transactions without the approval or vote of the Limited Partners:
(1)(a) an Extraordinary Transaction in connection with which either (a) the Company is the surviving entity and the holders of REIT Shares are not entitled to receive any cash, securities, or other property in connection with such Extraordinary Transaction or (b) all Limited Partners (other than the Company) either will receive, or will have the right to elect to receive, for each Common Unit an amount of cash, securities and other property equal to the product of (x) the REIT Shares Amount multiplied by (y) the greatest amount of cash, securities and other property paid to a holder of one REIT Share in consideration of one such REIT Share pursuant to the terms of the Extraordinary Transaction during the period from and after the date on which the Extraordinary Transaction is consummated; provided that, if, in connection with the Extraordinary Transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of more than 50% of the outstanding REIT Shares, each holder of Common Units shall receive, or shall have the right to elect to receive, the greatest amount of cash, securities, or other property which such holder of Common Units would have received had it exercised its Redemption Right (as set forth in Section 8.5) and received REIT Shares in exchange for its Common Units immediately prior to the expiration of such purchase, tender or exchange offer and had thereupon accepted such purchase, tender or exchange offer and then such Extraordinary Transaction shall have been consummated; or
(2)an Extraordinary Transaction if: (a) immediately after such Extraordinary Transaction, substantially all of the assets directly or indirectly owned by the surviving entity, other than a direct or indirect interest in the Surviving Partnership (as defined below), are owned directly or indirectly by the Partnership or another limited partnership or limited liability company which is the survivor of a merger, consolidation or combination of assets with the Partnership (in each case, the “Surviving Partnership”); (b) the rights, preferences and privileges of the Common Unitholders in the Surviving Partnership are at least as favorable as those in effect immediately prior to the consummation of such transaction and as those applicable to any other limited partners or non-managing members of the Surviving Partnership (who have, in either case, the rights of a “common” equity holder); and (c) such rights of the Common Unitholders include the right to exchange their Common Unit equivalent interests in the Surviving Partnership for at least one of: (x) the consideration available to such Common Unitholders pursuant to Section 11.2B(1) or (y) if the ultimate controlling person of the Surviving Partnership has publicly traded common equity securities, such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities (as determined pursuant to Section 11.2C) and the REIT Shares.
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C.In connection with any transaction permitted by Section 11.2B(2), the relative fair market values shall be reasonably determined by the General Partner as of the time of such transaction and, to the extent applicable, shall be no less favorable to the Limited Partners than the relative values reflected in the terms of such transaction.
Section 11.3 Limited Partners’ Rights to Transfer
A.General. Except to the extent expressly permitted in Sections 11.3B and 11.3C, a Limited Partner (other than the Company) may not transfer all or any portion of its Partnership Interest, or any of such Limited Partner’s rights as a Limited Partner, without the prior written consent of the General Partner, which consent may be withheld in the General Partner’s sole and absolute discretion. Any transfer otherwise permitted under Sections 11.3B and 11.3C shall be subject to the conditions set forth in Section 11.3D, 11.3E and 11.3F, and all permitted transfers shall be subject to Sections 11.4, 11.5, and 11.6.
B.Incapacitated Limited Partners. If a Limited Partner is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator or receiver of such Limited Partner’s estate shall have all of the rights of a Limited Partner, but not more rights than those enjoyed by other Limited Partners, for the purpose of settling or managing the estate and such power as the Incapacitated Limited Partner possessed to transfer all or any part of his, her or its Partnership Interest. The Incapacity of a Limited Partner, in and of itself, shall not dissolve or terminate the Partnership.
C.Permitted Transfers. Subject to the provisions of Sections 11.3.D, 11.3.E, 11.4, 11.5 and 11.6, a Limited Partner may transfer, without the consent of the General Partner, all or a portion of its Partnership Interests (i) in the case of a Limited Partner who is an individual, to a member of his Immediate Family, any trust formed for the benefit of himself and/or members of his Immediate Family, or any partnership, limited liability company, joint venture, corporation or other business entity comprised only of himself and/or members of his Immediate Family and entities the ownership interests in which are owned by or for the benefit of himself and/or members of his Immediate Family, (ii) in the case of a Limited Partner which is a trust, to the beneficiaries of such trust, (iii) in the case of a Limited Partner which is a partnership, limited liability company, joint venture, corporation or other business entity to which Partnership Interests were transferred pursuant to clause (i) above, to its partners, owners or stockholders, as the case may be, who are members of the Immediate Family of or are actually the Person(s) who transferred Partnership Units to it pursuant to clause (i) above and (iv) pursuant to applicable laws of descent or distribution.
D.Subject to the provisions of Sections 11.3.E, 11.4, 11.5 and 11.6, a Limited Partner may transfer, without the consent of the General Partner, all or a portion of its Partnership Interests if:
(1)Such transfer is made only to Qualified Transferees or transferees permitted pursuant to Section 11.3C; and
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(2)The transferee assumes by operation of law or express agreement all of the obligations of the transferor Limited Partner under this Agreement with respect to such transferred Partnership Interest and no such transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor Limited Partner are assumed by a successor corporation by operation of law) shall relieve the transferor Partner of its obligations under this Agreement without the approval of the General Partner, in its sole and absolute discretion. Notwithstanding the foregoing, any transferee of any transferred Partnership Interest shall be subject to the Ownership Limit, which may limit or restrict such transferee’s ability to exercise its Redemption Right. Any transferee, whether or not admitted as a Substituted Limited Partner, shall take subject to the obligations of the transferor hereunder. Unless admitted as a Substituted Limited Partner, no transferee, whether by voluntary transfer, by operation of law or otherwise, shall have any rights hereunder, other than the rights of an Assignee as provided in Section 11.5.
E.Notwithstanding any other provision of this Section 11.3, no Limited Partner may effect a transfer of its Partnership Units, in whole or in part, if, upon the advice of legal counsel for the Partnership, such proposed transfer would require the registration of the Partnership Units under the Securities Act or would otherwise violate any applicable federal or state securities or blue sky law (including investment suitability standards). The General Partner may prohibit any transfer of Partnership Units by a Limited Partner unless it receives a written opinion of legal counsel (which opinion and counsel shall be reasonably satisfactory to the Partnership) to such Limited Partner to the effect that such transfer would not require filing of a registration statement under the Securities Act or would not otherwise violate any federal or state securities laws or regulations applicable to the Partnership or the Partnership Unit or, at the option of the Partnership, an opinion of legal counsel to the Partnership to the same effect.
Section 11.4 Substituted Limited Partners
A.No Limited Partner shall have the right to substitute a transferee as a Limited Partner in his, her or its place (including any transferees permitted by Section 11.3). The General Partner shall, however, have the right to consent to the admission of a transferee of the interest of a Limited Partner pursuant to this Section 11.4 as a Substituted Limited Partner, which consent may be given or withheld by the General Partner in its sole and absolute discretion. The General Partner’s failure or refusal to permit a transferee of any such interests to become a Substituted Limited Partner shall not give rise to any cause of action against the Partnership or any Partner.
B.A transferee who has been admitted as a Substituted Limited Partner in accordance with this Article 11 shall have all the rights and powers and be subject to all the restrictions and liabilities of a Limited Partner under this Agreement. The admission of any transferee as a Substituted Limited Partner shall be conditioned upon the transferee executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement (and such other documents or instruments as may be required or advisable, in the sole
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and absolute discretion of the General Partner, to effect the admission, each in form and substance satisfactory to the General Partner).
C.Upon the admission of a Substituted Limited Partner, the General Partner shall amend the books and records of the Partnership to reflect the name, address, number of Partnership Units and Percentage Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address and interest of the predecessor of such Substituted Limited Partner.
Section 11.5 Assignees
A.If the General Partner, in its sole and absolute discretion, does not consent to the admission of any permitted transferee as a Substituted Limited Partner, as described in Section 11.4, such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee shall be entitled to all the rights of an assignee of a limited partnership interest under the Act, including the right to receive distributions from the Partnership and the share of Profit, Loss and any other items of income, gain, loss, deduction and credit of the Partnership attributable to the Partnership Units assigned to such transferee and the rights to transfer the Partnership Units in accordance with the provisions of this Article 11, but shall not be deemed to be a Holder of Partnership Units for any other purpose under this Agreement, and shall not be entitled to effect a Consent with respect to such Partnership Units on any matter presented to the Limited Partners for a vote (such right to Consent to the extent provided by this Agreement or under the Act remaining with the transferor Limited Partner). In the event any such transferee desires to make a further assignment of any such Partnership Units, such transferee shall be subject to all of the provisions of this Article 11 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of Partnership Units.
Section 11.6 General Provisions
A.No Limited Partner may withdraw from the Partnership other than as a result of a permitted transfer of all of such Limited Partner’s Partnership Units in accordance with this Article 11 and the transferee of such Partnership Units being admitted to the Partnership as a Substituted Limited Partner or pursuant to a redemption of all of its Partnership Units under Section 8.5.
B.Any Limited Partner who shall transfer all of its Partnership Units in a transfer permitted pursuant to this Article 11 where such transferee was admitted as a Substituted Limited Partner or shall transfer all of its Partnership Units pursuant to the exercise of its Redemption Right or Section 8.6 shall cease to be a Limited Partner; provided that after such transfer, exchange or redemption such Limited Partner owns no Partnership Interest.
C.Transfers pursuant to this Article 11 may only be made on the first day of a fiscal quarter of the Partnership, unless the General Partner in its sole and absolute discretion otherwise agrees.
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D.If any Partnership Interest is transferred, assigned or redeemed during any quarterly segment of the Partnership’s Partnership Year in compliance with the provisions of this Article 11 or redeemed by the Partnership or acquired by the Company pursuant to Section 8.5 or Section 8.6 on any day other than the first day of a Partnership Year, then Profit, Loss, each item thereof and all other items attributable to such Partnership Interest for such Partnership Year shall be divided and allocated between the transferor Partner and the transferee Partner by taking into account their varying interests during the Partnership Year in accordance with Section 706(d) of the Code, using the “interim closing of the books” method or such other method (or combination of methods) selected by the General Partner. Solely for purposes of making such allocations, at the discretion of the General Partner, each of such items for the calendar month in which the transfer or assignment occurs shall be allocated to the transferee Partner, and none of such items for the calendar month in which a transfer or redemption occurs shall be allocated to transferor Partner or the Tendering Partner as the case may be; provided, however, that the General Partner may adopt such other conventions relating to allocations in connection with transfers, assignments or redemptions as it determines are necessary or appropriate. All distributions attributable to such Partnership Unit with respect to which the Partnership Record Date is before the date of such transfer, assignment, or redemption shall be made to the transferor Partner or the Tendering Partner, as the case may be, and in the case of a transfer or assignment other than a redemption, all distributions thereafter attributable to such Partnership Unit shall be made to the transferee Partner.
E.In addition to any other restrictions on transfer herein contained, including without limitation the provisions of this Article 11, in no event may any transfer or assignment of a Partnership Interest by any Partner (including pursuant to a redemption or exchange for REIT Shares by the Partnership or the General Partner or the Company pursuant to Section 8.5 or Section 8.6) be made (i) to any Person who lacks the legal right, power or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, of any component portion of a Partnership Unit, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Partnership Unit; (iv) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if upon the advice of legal counsel to the Partnership such transfer could cause a termination of the Partnership for U.S. federal or state income tax purposes (except as a result of the redemption or exchange for REIT Shares of all Units held by all Limited Partners or pursuant to a transaction expressly permitted under Section 11.2); (v) if upon the advice of counsel to the Partnership such transfer could cause the Partnership to cease to be classified as a partnership for applicable tax purpose(s) (except as a result of the redemption or exchange for REIT Shares of all Units held by all Limited Partners); (vi) if such transfer could, upon the advice of counsel to the Partnership, cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section 4975(e) of the Code); (vii) if such transfer could, upon the advice of counsel to the Partnership, cause any portion of the assets of the Partnership to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.2-101; (viii) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if such transfer requires the registration of such
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Partnership Interest pursuant to any applicable federal or state securities laws; (ix) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if such transfer could cause the Partnership (A) to be treated as a publicly traded partnership taxable as a corporation under Section 7704 of the Code or as having interests treated as traded on an “established securities market” or a “secondary market” (or the substantial equivalent thereof) within the meaning of Section 7704 of the Code and the Regulations promulgated thereunder, (B) to fail to qualify for any of the Safe Harbors (as defined below) or (C) to derive income that is not “qualifying income” within the meaning of Section 7704(d) of the Code; (x) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if such transfer subjects the Partnership to be regulated under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended; (xi) if such transfer is made to a lender to the Partnership or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Partnership whose loan constitutes a Nonrecourse Liability, except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion; and provided that, as a condition to granting such consent the lender may be required to enter into an arrangement with the borrower, the Partnership and the General Partner to redeem or exchange for the REIT Shares Amount any Partnership Units in which a security interest is held immediately prior to the time at which such lender would be deemed to be a partner in the Partnership for purposes of allocating liabilities to such lender under Section 752 of the Code; (xii) if upon the advice of legal counsel for the Partnership such transfer could adversely affect the ability of the Company or any REIT Subsidiary to continue to qualify as a REIT or, except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, subject the Company or any REIT Subsidiary to any additional taxes under Section 857 or Section 4981 of the Code; or (xiii) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if such transfer could subject the Partnership to a withholding obligation under Section 1446(f) of the Code and the Regulations promulgated thereunder.
F.The General Partner shall monitor the transfers of interests in the Partnership (including any acquisition of Common Units by the Partnership or the General Partner) to determine (i) if such interests could be treated as being traded on an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code and the regulations thereunder and (ii) whether such transfers of interests could result in the Partnership being unable to qualify for the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “Safe Harbors”). The General Partner shall have the authority (but shall not be required) to take any steps it determines are necessary or appropriate in its sole and absolute discretion, including without limitation modifications of the Redemption Rights under Section 8.5, in order (i) to prevent any trading of interests which could cause the Partnership to become a “publicly traded partnership,” within the meaning of Section 7704 of the Code, or any recognition by the Partnership of such transfers, (ii) to insure that one or more of the Safe Harbors is met and/or (iii) to ensure that the Partnership satisfies the “qualifying income”
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exemption of Section 7704(c) of the Code from treatment as a publicly traded partnership taxable as a corporation. If, pursuant to its authority under this Section 11.6.F, the General Partner determines that there is a reasonable possibility that the Partnership’s attempt to comply with one of the Safe Harbors could result in not all requests for redemption of Common Units pursuant to Section 8.5 being honored for any taxable year, then the General Partner may (but shall not be required to) implement such measures as it determines appropriate (as determined by it in its sole discretion exercised in good faith) to apportion the available opportunities to redeem Units during such year in a manner that would qualify for one or more of the Safe Harbors among those Limited Partners desiring to redeem Units during the taxable year.
G.In the event a Limited Partner transfers (or proposes to transfer) all or any portion of its Limited Partner Interest (including, for this purpose, any transfer or redemption of a Tendered Unit pursuant to Section 8.5 hereof), all reasonable legal, accounting and other expenses incurred, or reasonably likely to be incurred, by the Partnership on account of the transfer (or proposed transfer) shall be paid by such Limited Partner, provided, however, that such obligation shall not apply to transfers (or proposed transfers) made in connection with Extraordinary Transactions or to the extent that the General Partner determines, in its sole discretion, that the Partnership shall bear such expenses with respect to a transfer. Following the effective date of any transfer, the transferor and the transferee or Assignee (other than a transferee or Assignee that is the Company or an Affiliate of the Company) shall be jointly and severally liable for all such expenses. At the election of the General Partner, such expenses may be paid by the Partnership and treated as a Withholding Payment under Section 5.1B for purposes of this Agreement with respect to both the transferor and transferee and/or Assignee, as applicable. If a Limited Partner undergoes a change to its structure, nature of organization, ownership or other attributes that does not constitute a transfer by such Limited Partner under this Agreement, but that nevertheless is treated as a transfer for purposes of any applicable law or otherwise imposes upon the Partnership any corresponding regulatory, tax, compliance or other burden or expense, the costs thereof shall be borne by such Limited Partner in the same manner as described in the foregoing provisions of this Section 11.6G.
ARTICLE 12 - ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner
A successor to all of the General Partner’s General Partner Interest pursuant to Section 11.2 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective upon such transfer. Any such transferee shall carry on the business of the Partnership without dissolution. In each case, the admission shall be subject to the successor General Partner executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission. In the case of such admission on any day other than the first day of a Partnership Year, all items attributable to the General Partner Interest for such Partnership Year shall be allocated between the transferring General Partner and such successor as provided in Article 11.
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Section 12.2 Admission of Additional Limited Partners
A.After the date hereof, a Person (other than an existing Partner) who makes a capital contribution to the Partnership in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the General Partner (i) evidence of acceptance in form satisfactory to the General Partner of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 and (ii) such other documents or instruments as may be required in the discretion of the General Partner in order to effect such Person’s admission as an Additional Limited Partner.
B.Notwithstanding anything to the contrary in this Section 12.2, no Person shall be admitted as an Additional Limited Partner without the written consent of the General Partner, which consent may be given or withheld in the General Partner’s sole and absolute discretion. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership, following the written consent of the General Partner to such admission.
C.If any Additional Limited Partner is admitted to the Partnership on any day other than the first day of a Partnership Year, then Profit, Loss, each item thereof and all other items allocable among Partners and Assignees for such Partnership Year shall be allocated among such Additional Limited Partner and all other Partners and Assignees by taking into account their varying interests during the Partnership Year in accordance with Section 706(d) of the Code, using any method(s) permitted by law and selected by the General Partner consistent with the provisions of Section 11.6D. All distributions with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and Assignees, other than the Additional Limited Partner and all distributions thereafter shall be made to all of the Partners and Assignees including such Additional Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited Partnership
For the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement and amend the books and records of the Partnership and, if required by law, shall prepare and file an amendment to the Certificate of Limited Partnership and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 hereof.
ARTICLE 13 - DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution
A.The Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the withdrawal of the General Partner, any successor General Partner shall continue the business of the Partnership. The
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Partnership shall dissolve, and its affairs shall be wound up, only upon the first to occur of any of the following (each, a “Liquidating Event”):
(1)an event of withdrawal of the General Partner, as defined in the Act (other than an event of bankruptcy), unless, within ninety (90) days after such event of withdrawal a majority of the Percentage Interests held by the Limited Partners (without taking into account any Percentage Interests attributable to outstanding AOLTIP Units) agree in writing to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of a successor General Partner;
(2)an election to dissolve the Partnership made by the General Partner, in its sole and absolute discretion;
(3)entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act;
(4)a Terminating Capital Transaction;
(5)the Incapacity of the General Partner, unless a majority of the Percentage Interests held by the Limited Partners (without taking into account any Percentage Interests attributable to outstanding AOLTIP Units) agree in writing to continue the business of the Partnership and to the appointment, effective as of a date prior to the date of such Incapacity, of a successor General Partner; or
(6)a final and non-appealable judgment is entered by a court of competent jurisdiction ruling that the General Partner is bankrupt or insolvent, or a final and non-appealable order for relief is entered by a court with appropriate jurisdiction against the General Partner, in each case under any federal or state bankruptcy or insolvency laws as now or hereafter in effect, unless prior to the entry of such order or judgment a majority of the Percentage Interests held by the Limited Partners (without taking into account any Percentage Interests attributable to outstanding AOLTIP Units) agree in writing to continue the business of the Partnership and to the appointment, effective as of a date prior to the date of such order or judgment, of a successor General Partner.
Section 13.2 Winding Up
A.Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Partners. No Partner shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership’s business and affairs. The General Partner, or, in the event there is no remaining General Partner, any Person elected by vote of the Limited Partners (the General Partner or such other Person being referred to herein as the “Liquidator”), shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership’s liabilities and property and the Partnership property shall be liquidated as promptly as is consistent with
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obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the Company) shall be applied and distributed in the following order:
(1)First, to the payment and discharge of all of the Partnership’s debts and liabilities;
(2)The balance, if any, to all Partners with positive Capital Accounts in accordance with their respective positive Capital Account balances, determined after all adjustments made in accordance with Article 6 resulting from Partnership operations and from all sales and dispositions of all or any part of the Partnership’s assets.
The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13, other than reimbursement of its expenses as provided in Section 7.4. Any distributions pursuant to this Section 13.2A shall be made by the end of the Partnership’s taxable year in which the Liquidating Event occurs (or, if later, within ninety (90) days after the date of the Liquidating Event). To the extent deemed advisable by the General Partner, appropriate arrangements (including the use of a liquidating trust) may be made to assure that adequate funds are available to pay any contingent debts or obligations.
B.Notwithstanding the provisions of Section 13.2A which require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership the Liquidator determines that an immediate sale of part or all of the Partnership’s assets would be impractical or would cause undue loss to the Partners, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Partners as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2A, undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Partners, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.
Section 13.3 Deficit Capital Account Restoration Obligation
If the General Partner has a deficit balance in its Capital Account at such time as the Partnership (or the General Partner’s interest therein, including its interest as a Limited Partner) is “liquidated” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) (after giving effect to all contributions, distributions and allocations for the taxable years, including the year during which such liquidation occurs), the General Partner shall contribute to the capital of the Partnership the amount necessary to restore such deficit balance to zero in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(3). If any Limited Partner has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for the
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taxable years, including the year during which such liquidation occurs), such Limited Partner shall have no obligation to make any contribution to the capital of the Partnership with respect to such deficit, and such deficit at any time shall not be considered a Debt owed to the Partnership or to any other Person for any purpose whatsoever, except to the extent otherwise expressly agreed to by such Partner and the Partnership.
Section 13.4 Compliance with Timing Requirements of Regulations
A.In the discretion of the Liquidator or the General Partner, a pro rata portion of the distributions that would otherwise be made to the General Partner and Limited Partners pursuant to this Article 13 may be:
(1)distributed to a trust established for the benefit of the General Partner and Limited Partners for the purposes of liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partner arising out of or in connection with the Partnership. The assets of any such trust shall be distributed to the General Partner and Limited Partners from time to time, in the reasonable discretion of the Liquidator or the General Partner, in the same proportions and the amount distributed to such trust by the Partnership would otherwise have been distributed to the General Partner and Limited Partners pursuant to this Agreement; or
(2)withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Partnership, provided that such withheld or escrowed amounts shall be distributed to the General Partner and Limited Partners in the manner and order of priority set forth in Section 13.2A as soon as practicable.
Section 13.5 Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited Partner shall look solely to the assets of the Partnership for the return of its Capital Contributions and shall have no right or power to demand or receive property other than cash from the Partnership. Except as otherwise provided in this Agreement, no Limited Partner shall have priority over any other Partner as to the return of its Capital Contributions, distributions or allocations.
Section 13.6 Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that would, but for an election or objection by one or more Partners pursuant to Section 13.1, result in a dissolution of the Partnership, the General Partner shall, within thirty (30) days thereafter, provide written notice thereof to each of the Partners.
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Section 13.7 Cancellation of Certificate of Limited Partnership
Upon the completion of the liquidation of the Partnership’s assets, as provided in Section 13.2 hereof, the Partnership shall be terminated, a certificate of cancellation shall be filed, and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Partnership shall be taken.
Section 13.8 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the business and affairs of the Partnership and the liquidation of its assets pursuant to Section 13.2, in order to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect between the Partners during the period of liquidation.
Section 13.9 Waiver of Partition
Each Partner, on behalf of itself and its successors, hereby waives any right to partition of the Partnership property.
Section 13.10 Liability of Liquidator
Any Liquidator shall be indemnified and held harmless by the Partnership in the same manner and to the same degree as an Indemnitee may be indemnified pursuant to Section 7.7 hereof.
ARTICLE 14 - AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 14.1 Procedures for Actions and Consents of Partners
A.The actions requiring Consent of any Partner or Partners pursuant to this Agreement, including Section 7.3 and Section 11.2 hereof, or otherwise pursuant to applicable law, are subject to the procedures set forth in this Article 14.
Section 14.2 Amendments
A.Amendments to this Agreement requiring the Consent of Limited Partners may only be proposed by the General Partner. Following such proposal, the General Partner shall submit any proposed amendment to the Limited Partners and shall seek the Consent of the Limited Partners entitled to vote thereon on any such proposed amendment in accordance with Section 14.3 hereof. Except as set forth below in Section 14.2B, Section 14.2C and Section 14.2D or as otherwise expressly provided in this Agreement, a proposed amendment shall be adopted and be effective as an amendment hereto if it is approved by the General Partner and it receives the Consent of Limited Partners holding a majority of the Common Units held by Limited Partners (including Limited Partner Units held by the Company and its Affiliates); provided that an action shall become effective at such time as the requisite Consents are received by the General Partner even if prior to such specified time.
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B.The General Partner shall have the exclusive power without the prior Consent of the Limited Partners to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1)to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2)to reflect the issuance of additional Partnership Interests pursuant to Section 4.2 or the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend the books and records of the Partnership (including the Partnership Ledger) in connection with such admission, substitution or withdrawal;
(3)to set forth or amend the designations, rights, powers, duties and preferences of the Holders of any additional Partnership Interests issued pursuant to this Agreement;
(4)to reflect a change that is of an inconsequential nature or does not adversely affect the rights of the Limited Partners hereunder in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions or this Agreement;
(5)to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(6)to reflect such changes as are reasonably necessary for the Company to maintain its status as a REIT, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof) or a ruling of the IRS;
(7)to reflect the transfer of all or any part of a Partnership Interest among the General Partner, the Company and any Qualified REIT Subsidiary or other entity that is disregarded as an entity separate from the Company for U.S. federal income tax purposes;
(8)to modify, as set forth in Section 6.2, the manner in which Capital Accounts are computed;
(9)to reflect any modification to this Agreement as is necessary or desirable (as determined by the General Partner in its sole and absolute discretion), including, without limitation, to reflect such activities as are described in Section 7.5.B and the direct ownership of assets by the Company while preserving the intended
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economic arrangement, including, without limitation, (i) amendments or modifications to the definition of “Conversion Factor” and (ii) adjustments to distributions intended to provide Common Units (other than Common Units held directly or indirectly by the Company or General Partner) with the same distributions (to the extent possible) that would be made with respect to Common Units if the economic benefits and burdens of such Property were vested in the Partnership rather than retained by the Company); and
(10)to reflect any modification to any provisions of this Agreement that authorizes the General Partner to make amendments without the Consent of the Limited Partners or any other Person.
The General Partner will provide notice to the Limited Partners when any action under this Section 14.2B is taken in the next regular communication to the Limited Partners.
C.Except as set forth in Section 14.2B above, without the Consent of a Majority in Interest of the Outside Limited Partners, this Agreement shall not be amended in a manner that disproportionately effects such Limited Partners, if such amendment would amend Section 4.2, Article 5, Article 6, Article 7, Section 8.5, Section 11.2 or this Section 14.2C (to reduce the items requiring the Consent described herein).
D.This Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner whose rights under this Agreement are adversely affected thereby if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner or (iii) amend this Section 14.2D (to reduce the items requiring the Consent described herein). Any such amendment or action Consented to by a Partner shall be effective as to that Partner, notwithstanding the absence of such Consent by any other Partners.
E.Notwithstanding anything in this Article 14 or elsewhere in this Agreement to the contrary, any amendment and restatement of the Partnership Ledger by the General Partner to reflect events or changes otherwise authorized or permitted by this Agreement, whether pursuant to Section 7.1A(27) hereof or otherwise, shall not be deemed an amendment of this Agreement and may be done at any time and from time to time, as necessary by the General Partner without the Consent of the Limited Partners.
Section 14.3 Meetings of the Partners
A.Meetings of the Partners may only be called by the General Partner. The request shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners not less than seven (7) days nor more than sixty (60) days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Whenever the vote or Consent of the Partners is permitted or required under this Agreement, such vote or Consent may be given at a meeting of the Partners or may be given in accordance with the procedure prescribed in Section 14.1. Except as otherwise expressly provided in this Agreement,
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the Consent of holders of a majority of the Common Units held by Limited Partners (including Common Units held by the Company and its Affiliates) shall control.
B.Any action required or permitted to be taken at a meeting of the Partners may be taken without a meeting if a Consent in writing or by electronic transmission setting forth the action so taken or consented to is signed by a majority of the Common Units of the Partners (or such other percentage as is expressly required by this Agreement). Such Consent may be in one instrument or in several instruments, and shall have the same force and effect as the affirmative vote of such Partners at a meeting of the Partners. Such Consent shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified. For purposes of obtaining a Consent in writing or by electronic transmission to any matter, the General Partner may require a response within a reasonable specified time, but not less than fifteen (15) days, and failure to respond in such time period shall constitute a Consent that is consistent with the General Partner’s recommendation with respect to the proposal; provided, however, that an action shall become effective at such time as requisite Consents are received even if prior to such specified time.
C.Each Limited Partner may authorize any Person or Persons to act for him by proxy on all matters in which a Limited Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by the Limited Partner or his attorney-in-fact. A proxy may be granted in writing, by means of electronic transmission or as otherwise permitted by applicable law. No proxy shall be valid after the expiration of twelve (12) months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Limited Partner executing it, such revocation to be effective upon the Partnership’s receipt of written notice of such revocation from the Limited Partner executing such proxy.
D.The General Partner may set, in advance, a record date for the purpose of determining the Partners (i) entitled to Consent to any action, (ii) entitled to receive notice of or vote at any meeting of the Partners or (iii) in order to make a determination of Partners for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than ninety (90) days and, in the case of a meeting of the Partners, not less than ten (10) days, before the date on which the meeting is to be held or Consent is to be given. If no record date is fixed, the record date for the determination of Partners entitled to notice of or to vote at a meeting of the Partners shall be at the close of business on the day on which the notice of the meeting is sent, and the record date for any other determination of Partners shall be the effective date of such Partner action, distribution or other event. When a determination of the Partners entitled to vote at any meeting of the Partners has been made as provided in this section, such determination shall apply to any adjournment thereof.
E.Each meeting of the Partners shall be conducted by the General Partner or such other Person as the General Partner may appoint pursuant to such rules for the conduct of the meeting as the General Partner or such other Person deems appropriate. Without limitation, meetings of the Partners may be conducted in the same manner as meetings of the Company’s
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stockholders and may be held at the same time, and as part of, meetings of the Company’s stockholders.
F.On matters on which Limited Partners are entitled to vote, each Limited Partner shall have a vote equal to the number of Partnership Units held.
ARTICLE 15 - GENERAL PROVISIONS
Section 15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by certified first class United States mail, return receipt requested, nationally recognized overnight delivery service, electronic mail or facsimile transmission (with receipt confirmed) to the Partner or Assignee at the address set forth in the Partnership Ledger or such other address of which the Partner shall notify the General Partner in writing. Notices to the General Partner and the Partnership shall be delivered at or mailed to its principal office address set forth in Section 2.3. The General Partner and the Partnership may specify a different address by notifying the Limited Partners in writing of such different address.
Section 15.2 Titles and Captions
All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” and “Sections” are to Articles and Sections of this Agreement.
Section 15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 15.4 Further Action
The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
Section 15.5 Binding Effect
Subject to the terms set forth herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
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Section 15.6 No Third-Party Rights Created Hereby
Other than as expressly set forth herein with respect to Indemnitees, the provisions of this Agreement are solely for the purpose of defining the interests of the Holders, inter se; and no other person, firm or entity (i.e., a party who is not a signatory hereto or a permitted successor to such signatory hereto) shall have any right, power, title or interest by way of subrogation or otherwise, in and to the rights, powers, title and provisions of this Agreement. No creditor or other third party having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or loans to the Partnership or to pursue any other right or remedy hereunder or at law or in equity. None of the rights or obligations of the Partners herein set forth to make Capital Contributions or loans to the Partnership shall be deemed an asset of the Partnership for any purpose by any creditor or other third party, nor may any such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or other obligation of the Partnership or any of the Partners.
Section 15.7 Waiver
A.No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
B.The restrictions, conditions and other limitations on the rights and benefits of the Limited Partners contained in this Agreement, and the duties, covenants and other requirements of performance or notice by the Limited Partners, are for the benefit of the Partnership and, except for an obligation to pay money to the Partnership, may be waived or relinquished by the General Partner, in its sole and absolute discretion, on behalf of the Partnership in one or more instances from time to time and at any time; provided, however, that any such waiver or relinquishment may not be made if it would have the effect of (i) creating liability for any other Limited Partner, (ii) causing the Partnership to cease to qualify as a limited partnership, (iii) reducing the amount of cash otherwise distributable to the Limited Partners (other than any such reduction that affects all of the Limited Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a majority of the Limited Partners holding such class or series of Partnership Units), (iv) resulting in the classification of the Partnership as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or (v) violating the Securities Act, the Exchange Act or any state “blue sky” or other securities laws; and provided, further, that any waiver relating to compliance with the Ownership Limit or other restrictions in the Articles of Incorporation shall be made and shall be effective only as provided in the Articles of Incorporation.
Section 15.8 Counterparts
This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all of the parties hereto, notwithstanding that all such parties are not
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signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.
Section 15.9 Applicable Law; Waiver of Jury Trial
A.This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law thereof.
B.Each Partner hereby (i) submits to the non-exclusive jurisdiction of any state or federal court sitting in the State of Delaware (collectively, the “Delaware Courts”), with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts would have subject matter jurisdiction with respect to such dispute, (ii) to the fullest extent permitted by law, irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of any of the Delaware Courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper, (iii) to the fullest extent permitted by law, agrees that notice or the service of process in any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be properly served or delivered if delivered to such Partner at such Partner’s last known address as set forth in the Partnership’s books and records, and (iv) to the fullest extent permitted by law, irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
Section 15.10 Invalidity of Provisions
If any provision of this Agreement shall to any extent be held void or unenforceable (as to duration, scope, activity, subject or otherwise) by a court of competent jurisdiction, such provision shall be deemed to be modified so as to constitute a provision conforming as nearly as possible to the original provision while still remaining valid and enforceable. In such event, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is deemed to be void or unenforceable) shall not be affected thereby. Each other provision of this Agreement, unless specifically conditioned upon the voided aspect of such provision, shall remain valid and enforceable to the fullest extent permitted by law; any other provisions of this Agreement that are specifically conditioned on the voided aspect of such invalid provision shall also be deemed to be modified so as to constitute a provision conforming as nearly as possible to the original provision while still remaining valid and enforceable to the fullest extent permitted by law.
Section 15.11 No Rights as Stockholders
Nothing contained in this Agreement shall be construed as conferring upon the Holders of Partnership Units any rights whatsoever as stockholders of the Company, including without limitation, any right to receive dividends or other distributions made to stockholders or to vote or
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consent or to receive notice as stockholders in respect of any meeting of stockholders for the election of directors of the Company or any other matter.
Section 15.12 Entire Agreement
This Agreement and the exhibits attached hereto contain the entire understanding and agreement among the Partners with respect to the subject matter hereof and supersedes any other prior written or oral understandings or agreements among them with respect thereto. Notwithstanding anything to the contrary in this Agreement, the Partners hereby acknowledge and agree that the General Partner, on its own behalf and/or on behalf of the Partnership, without the approval of any Limited Partner, may enter into side letters or similar written agreements with Limited Partners that are not Affiliates of the General Partner, executed contemporaneously with the admission of such Limited Partner to the Partnership, which have the effect of establishing rights under, or altering or supplementing, the terms hereof, as negotiated with such Limited Partner and which the General Partner in its sole and absolute discretion deems necessary, desirable or appropriate. The parties hereto agree that any terms, conditions or provisions contained in such side letters or similar written agreements with a Limited Partner shall govern with respect to such Limited Partner notwithstanding the provisions of this Agreement.
Section 15.13 Limitation To Preserve REIT Status
A.To the extent that any amount paid or credited to the Company or the General Partner or any of their officers, trustees, employees or agents (directly or indirectly, including by reason of giving the General Partner or the Company or any direct or indirect Subsidiary of the Company Capital Account credit in excess of actual Capital Contributions made by the General Partner or the Company or any direct or indirect Subsidiary of the Company) pursuant to Section 4.2, Section 7.4 and/or Section 7.7, or otherwise, would constitute gross income to the Company for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “Company Payment”) then, notwithstanding any other provision of this Agreement other than this Section 15.13, the amount of such Company Payment for any taxable year of the Company shall not exceed the lesser of:
(1)an amount equal to the excess, if any, of (a) 4% of the Company’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Company Payments) for the Company taxable year which is described in subsections (A) though (H) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the Company from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any Company Payments); or
(2)an amount equal to the excess, if any of (a) 24% of the Company’s total gross income (but not including the amount of any Company Payments) for the Company taxable year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of
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Section 856(c)(3) of the Code but not including the amount of any Company Payments) derived by the Company from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code;
provided, however, that Company Payments in excess of the amounts set forth in subparagraphs (1) and (2) above may be made if the Company, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Company’s ability to qualify as a REIT. To the extent Company Payments may not be made in a Company taxable year due to the foregoing limitations, such Company Payments shall carry over and be treated as arising in the following Company taxable year, provided, however, that such amounts shall not carry over for more than three Company taxable years, and if not paid within such three year period, shall expire; provided further, that (i) as Company Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Company taxable year, such payments shall be applied to the earliest Company taxable year first.
B.For the avoidance of doubt, Company Payments shall not include items or payments or amounts that for purposes of Section 856(c) of the Code are not treated as items of Company gross income separate from the Company’s share of Partnership gross income taken into account pursuant to Regulations Section 1.856-3(g) (or comparable provisions of any successor provision). Accordingly, Company Payments shall not include, without limitation, (i) amounts treated as guaranteed payments for capital within the meaning of Section 707(c) of the Code that are not taken into account under Regulations Section 1.856-3(g), (ii) amounts treated as allocations of tax or book items or as distributions (including amounts properly treated as distributions and allocations for U.S. federal income tax purposes by reason of the operation of Section 6.1.M), and (iii) the “self-charged” portion of payments described in Section 707(a) or Section 707(c) of the Code that are properly disregarded for purposes of Section 856(c) under the principles of Treasury Regulations Section 1.856-3(g).
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Limited Partnership as of the date first written above.
GENERAL PARTNER: EASTGROUP PROPERTIES GENERAL PARTNERS, INC. /s/ MARSHALL A. LOEB MARSHALL A. LOEB Chief Executive Officer /s/ STACI H. TYLER STACI H. TYLER Executive Vice President and Chief Financial Officer | |||||
LIMITED PARTNERS: EASTGROUP PROPERTIES, INC. /s/ MARSHALL A. LOEB MARSHALL A. LOEB Chief Executive Officer /s/ STACI H. TYLER STACI H. TYLER Executive Vice President and Chief Financial Officer | |||||
Signature Page to Amended and Restated Agreement of Limited Partnership of EastGroup Properties, L.P.
FORM OF LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the named Limited Partners of EastGroup Properties, L.P., hereby becomes a party to the Amended and Restated Agreement of Limited Partnership of EastGroup Properties, L.P. by and among EastGroup Properties General Partners, Inc. and such Limited Partners, dated as of June 4, 2026. The undersigned agrees that this signature page may be attached to any counterpart of said Amended and Restated Agreement of Limited Partnership.
| Signature Line for Limited Partner: | [Name] | ||||
| Address of Limited Partner: | [Address] | ||||
Exhibit A
Notice of Redemption
The undersigned Limited Partner or Assignee hereby irrevocably (i) redeems __________ Common Units in EastGroup Properties, L.P. in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of EastGroup Properties, L.P. (the “Agreement”) and the Redemption Right referred to therein; (ii) surrenders such Common Units and all right, title and interest therein; and (iii) directs that the Cash Amount or REIT Shares Amount (as determined by the General Partner) deliverable upon exercise of the Redemption Right be delivered to the address specified below, and if REIT Shares are to be delivered, such REIT Shares be registered or placed in the name(s) and at the address(es) specified below. The undersigned hereby, represents, warrants, and certifies that the undersigned (a) has marketable and unencumbered title to such Common Units, free and clear of the rights or interests of any other Person; (b) has the full right, power, and authority to redeem and surrender such Common Units as provided herein; and (c) has obtained the consent or approval of all Persons, if any, having the right to consent or approve such redemption and surrender.
All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement.
Dated:_________________________
Name of Limited Partner or Assignee:____________________________________
Please Print
(Signature of Limited Partner or Assignee) (Street Address) (City) (State) (Zip Code) | |||||
Medallion Guarantee: | |||||
If REIT Shares are to be issued, issue to:
Name:_________________________________
Please insert social security or identifying number:__________________
Exhibit B
LTIP Units
The following are certain additional terms of the LTIP Units:
1.1 Designation. A class of Partnership Units in the Partnership designated as the “LTIP Units” is hereby established. LTIP Units are intended to qualify as “profits interests” in the Partnership for U.S. federal income tax purposes. The number of LTIP Units that may be issued shall not be limited.
1.2 Vesting. LTIP Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on transfer pursuant to the terms of an award, vesting or other similar agreement (a “Vesting Agreement”), between the Partnership or the General Partner (on behalf of the Partnership) and a holder of LTIP Units. The terms of any Vesting Agreement may be modified from time to time in accordance with their terms. LTIP Units that have vested and are no longer subject to forfeiture under the terms of a Vesting Agreement are referred to as “Vested LTIP Units”; all other LTIP Units are referred to as “Unvested LTIP Units.” Subject to the terms of any Vesting Agreement, a holder of LTIP Units shall be entitled to transfer his or her LTIP Units to the same extent, and subject to the same restrictions as holders of Common Units are entitled to transfer their Common Units pursuant to Article 11 of the Agreement.
1.3 Forfeiture or Transfer of Unvested LTIP Units. Unless otherwise specified in the relevant Vesting Agreement, upon the occurrence of any event specified in a Vesting Agreement as resulting in either the forfeiture of any LTIP Units, or the repurchase by the Partnership or the General Partner of LTIP Units at a specified purchase price, then, upon the occurrence of the circumstances resulting in such forfeiture or repurchase by the Partnership or the General Partner, the relevant LTIP Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose, or as transferred to the Partnership or General Partner, as applicable. Unless otherwise specified in the Vesting Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited, other than any distributions declared with a record date prior to the effective date of the forfeiture.
1.4 Legend. Any certificate evidencing an LTIP Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation, any Vesting Agreement, apply to the LTIP Unit.
1.5 Distributions. The distributions to which holders of LTIP Units will be entitled with respect to their LTIP Units will be determined in accordance with the terms of the Agreement, including, without limitation, Article 5 and Article 13 thereof.
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1.6 Allocations. The allocations to which holders of LTIP Units will be entitled with respect to their LTIP Units will be determined in accordance with the terms of the Agreement, including, without limitation, Article 6 thereof.
1.7 Adjustments. If an LTIP Unit Adjustment Event (as defined below) occurs, then the General Partner shall make a corresponding adjustment to the LTIP Units to maintain the same correspondence between Common Units and LTIP Units as existed prior to such LTIP Unit Adjustment Event. The following shall be “LTIP Unit Adjustment Events”: (A) the Partnership makes a distribution on all outstanding Common Units in Partnership Units, (B) the Partnership subdivides the outstanding Common Units into a greater number of units or combines the outstanding Common Units into a smaller number of units, or (C) the Partnership issues any Partnership Units in exchange for its outstanding Common Units by way of a reclassification or recapitalization of its Common Units. If more than one LTIP Unit Adjustment Event occurs, the adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every LTIP Unit Adjustment Event as if all LTIP Unit Adjustment Events occurred simultaneously. If the Partnership takes an action affecting the Common Units other than actions specifically described above as LTIP Unit Adjustment Events and in the opinion of the General Partner such action would require an adjustment to the LTIP Units to maintain the correspondence between Common Unit and LTIP Units as existed prior to such action, the General Partner shall make such adjustment to the LTIP Units, to the extent permitted by law and by the terms of any plan pursuant to which the LTIP Units have been issued, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances to maintain such correspondence. If an adjustment is made to the LTIP Units as herein provided, the Partnership shall promptly file in the books and records of the Partnership an officer’s certificate setting forth such adjustment and a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after filing of such certificate, the Partnership shall mail a notice to each holder of LTIP Units setting forth the adjustment to his or her LTIP Units and the effective date of such adjustment.
1.8 Conversion of LTIP Units into Common Units; Redemption. LTIP Units shall automatically convert into an equal number of Common Units, giving effect to all adjustments (if any) made pursuant to Section 1.7, on the later to occur of (i) the date on which such LTIP Units become Vested LTIP Units and (ii) the date on which the Book-Up Target for such LTIP Units becomes zero (the “LTIP Unit Conversion Date”). Any such conversion shall occur automatically after the close of business on the applicable LTIP Unit Conversion Date without any action on the part of such holder of LTIP Units, as of which time such holder of LTIP Units shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Common Units issuable upon such conversion and, notwithstanding the holding period set forth in Section 8.5.A of the Agreement (but subject to any limitations set forth in any applicable Vesting Agreement), such Common Units shall be immediately entitled to the Redemption Right as of such date.
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1.9 Treatment of Capital Account. For purposes of making future allocations under Section 6.1I of this Agreement, the portion of the Economic Capital Account Balance of the applicable holder of LTIP Units that is treated as attributable to his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted into Common Units and the Common Unit Economic Balance with respect to such converted LTIP Unit, provided that for the avoidance of doubt, the amount of such reduction shall instead be attributable to the Economic Capital Account Balance that is attributable to the Common Units into which such LTIP Units were converted.
1.10 Mandatory Conversion in Connection with a Transaction.
(a) If the Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, unit exchange, self-tender offer for all or substantially all Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an LTIP Unit Adjustment Event), in each case as a result of which Common Units shall be exchanged for or converted into the right, or the holders of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to in this Exhibit B as a “Transaction”), then, immediately prior to the Transaction, any LTIP Units that will become eligible for conversion in connection with the Transaction in accordance with Section 1.8 shall automatically convert into an equal number of Common Units, giving effect to all adjustments (if any) made pursuant to Section 1.7, and taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the LTIP Unit Conversion Date shall be the effective date of the Transaction and the conversion shall occur immediately prior to the effectiveness of the Transaction).
(b) In anticipation of such automatic LTIP Unit conversion and the consummation of the Transaction, the Partnership shall cause each holder of LTIP Units to be afforded the right to receive in connection with such Transaction in consideration for the Common Units into which his or her LTIP Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a holder of the same number of Common Units, assuming such holder of Common Units is not a Person with which the Partnership consolidated or into which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an Affiliate of a Constituent Person. In the event that holders of Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each holder of LTIP Units of such election, and shall afford such
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holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each LTIP Unit held by such holder into Common Units in connection with such Transaction. If a holder of LTIP Units fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each LTIP Unit held by him or her (or by any of his or her transferees) the same kind and amount of consideration that a holder of a Common Unit would receive if such holder of Common Units failed to make such an election.
(c) Subject to the rights of the Partnership and the General Partner under any Vesting Agreement and the terms of any plan under which LTIP Units are issued, the Partnership shall use commercially reasonable efforts to cause the terms of any Transaction to be consistent with the provisions of this Section 1.10 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any holders of LTIP Units whose LTIP Units will not be converted into Common Units in connection with the Transaction that will (i) contain provisions enabling the holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the holders of LTIP Units.
1.11 Redemption at the Option of the Partnership. LTIP Units will not be redeemable at the option of the Partnership; provided, however, that the foregoing shall not prohibit the Partnership from (i) repurchasing LTIP Units from the holder thereof if and to the extent such holder agrees to sell such LTIP Units or (ii) converting LTIP Units pursuant to Section 1.8 or Section 1.10 above.
1.12 Voting Rights. Holders of LTIP Units shall have the right to vote on all matters submitted to a vote of the holders of Common Units; holders of LTIP Units and Common Units shall vote together as a single class, together with any other class or series of Partnership Units upon which like voting rights have been conferred. In any matter in which the LTIP Units are entitled to vote, including an action by written consent, each LTIP Unit shall be entitled to vote a Percentage Interest equal on a per unit basis to the Percentage Interest represented by each Common Unit.
1.13 Special Approval Rights. Except as provided in Section 1.12 above, holders of LTIP Units shall only (a) have those voting rights required from time to time by non-waivable provisions of applicable law, if any, and (b) have the additional voting rights that are expressly set forth in this Section 1.13. The General Partner and/or the Partnership shall not, without the affirmative vote of holders of more than 50% of the then outstanding LTIP Units affected thereby, given in person or by proxy, either in writing or at a meeting (voting separately as a class), take any action that would materially and adversely alter, change, modify or amend, whether by merger, consolidation or otherwise, the rights,
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powers or privileges of such LTIP Units, subject to the following exceptions: (i) no separate consent of the holders of LTIP Units will be required if and to the extent that any such alteration, change, modification or amendment would equally, ratably and proportionately alter, change, modify or amend the rights, powers or privileges of the Common Units (in which event the holders of LTIP Units shall only have such voting rights, if any, as expressly provided for in the Agreement, in accordance with Section 1.12 above); (ii) with respect to any merger, consolidation or other business combination or reorganization, so long as either (w) the LTIP Units are converted into Common Units immediately prior to the effectiveness of the transaction, (x) the holders of LTIP Units either will receive, or will have the right to elect to receive, for each LTIP Unit an amount of cash, securities, or other property equal to the greatest amount of cash, securities or other property paid to a holder of one Common Unit in consideration of one Common Unit pursuant to the terms of such transaction, (y) the LTIP Units remain outstanding with the terms thereof materially unchanged, or (z) if the Partnership is not the surviving entity in such transaction, the LTIP Units are exchanged for a security of the surviving entity with terms that are materially the same with respect to rights to allocations, distributions, redemption, conversion and voting as the LTIP Units and without any income, gain or loss expected to be recognized by the holder upon the exchange for U.S. federal income tax purposes (and with the terms of the Common Units or such other securities into which the LTIP Units (or the substitute security therefor) are convertible materially the same with respect to rights to allocations, distributions, redemption, conversion and voting), such merger, consolidation or other business combination or reorganization shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units, provided further, that if some, but not all, of the LTIP Units are converted into Common Units immediately prior to the effectiveness of the transaction (and neither clause (y) or (z) above is applicable), then the consent required pursuant to this Section will be the consent of the holders of more than 50% of the LTIP Units to be outstanding following such conversion; (iii) any creation or issuance of Partnership Units (whether ranking junior to, on a parity with or senior to the LTIP Units in any respect, which either (x) does not require the consent of the holders of Common Units or (y) does require such consent and is authorized by a vote of the holders of Common Units and LTIP Units voting together as a single class pursuant to Section 1.12 above, together with any other class or series of units of limited partnership interest in the Partnership upon which like voting rights have been conferred, shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units; and (iv) any waiver by the Partnership of restrictions or limitations applicable to any outstanding LTIP Units with respect to any holder or holders thereof shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units with respect to other holders.
1.14 The foregoing voting provisions will not apply if, as of or prior to the time when the action with respect to which such vote would otherwise be required to be taken or be effective, all outstanding LTIP Units shall have been converted and/or redeemed, or
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provision is made for such redemption and/or conversion to occur as of or prior to such time.
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Exhibit C
AOLTIP Units
The following are certain additional terms of the AOLTIP Units:
1.1 Designation. A class of Partnership Units in the Partnership designated as the “AOLTIP Units” is hereby established. AOLTIP Units are intended to qualify as “profits interests” in the Partnership for U.S. federal income tax purposes. The number of AOLTIP Units that may be issued shall not be limited.
1.2 Vesting, Generally. AOLTIP Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on transfer pursuant to the terms of a Vesting Agreement (as defined in Exhibit B). The terms of any Vesting Agreement may be modified from time to time in accordance with their terms. AOLTIP Units that have vested and are no longer subject to forfeiture under the terms of a Vesting Agreement are referred to as “Vested AOLTIP Units”; all other AOLTIP Units are referred to as “Unvested AOLTIP Units.” Subject to the terms of any Vesting Agreement, a holder of AOLTIP Units shall be entitled to transfer his or her AOLTIP Units to the same extent, and subject to the same restrictions as holders of Common Units are entitled to transfer their Common Units pursuant to Article 11 of the Agreement.
1.3 Forfeiture or Transfer of Unvested AOLTIP Units. Unless otherwise specified in the relevant Vesting Agreement, upon the occurrence of any event specified in a Vesting Agreement as resulting in either the forfeiture of any AOLTIP Units, or the right of the Partnership or the General Partner to repurchase AOLTIP Units at a specified purchase price, then upon the occurrence of the circumstances resulting in such forfeiture or if the Partnership or the General Partner exercises such right to repurchase, then the relevant AOLTIP Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purposes or transferred to the Partnership or the General Partner, as applicable. Unless otherwise specified in the Vesting Agreement, no consideration or other payment shall be due with respect to any AOLTIP Units that have been forfeited, other than any distributions declared with a record date prior to the effective date of the forfeiture. In connection with any forfeiture or repurchase of AOLTIP Units, the portion of the holder’s Capital Account attributable to such AOLTIP Units (adjusted to reflect any repurchase payments) will be treated in accordance with Section 6.1.J of the Agreement.
1.4 Legend. Any certificate evidencing an AOLTIP Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation any Vesting Agreement, apply to the AOLTIP Unit.
1.5 AOLTIP Unit Distributions. In the event that the Partnership makes a distribution to the holders of Common Units, the distributions to which holders of AOLTIP Units will be
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entitled with respect to their AOLTIP Units will be determined in accordance with the terms of the Agreement, including, without limitation, Article 5 and Article 13 thereof.
1.6 Allocations. The allocations to which holders of AOLTIP Units will be entitled with respect to their AOLTIP Units will be determined in accordance with the terms of the Agreement, including, without limitation, Article 6 thereof.
1.7 Adjustments. If an LTIP Unit Adjustment Event as defined in Exhibit B (or other similar event that the General Partner determines would require an adjustment to LTIP Units) occurs, the General Partner shall make such corresponding adjustment to each AOLTIP Unit as the General Partner determines is appropriate to maintain the same correspondence ratio between such AOLTIP Unit and the Common Units as existed immediately prior to such LTIP Unit Adjustment Event or other event. The methodology for making adjustments set forth in Exhibit B with respect to LTIP Units shall be used, with all appropriate modifications, for making adjustments under this Exhibit C with respect to AOLTIP Units as the General Partner determines to be appropriate in its judgment.
1.8 Right to Convert AOLTIP Units into Common Units.
(a) Conversion Right. A holder of AOLTIP Units shall have the right (the “AOLTIP Conversion Right”), at his or her option, at any time to convert all or a portion of his or her Vested AOLTIP Units into Common Units. In order to exercise his or her AOLTIP Conversion Right, a holder of AOLTIP Units shall deliver a notice (a “AOLTIP Conversion Notice”) in the form attached as Attachment A to this Exhibit C to the Partnership. Holders of AOLTIP Units shall not have the right to convert Unvested AOLTIP Units into Common Units until they become Vested AOLTIP Units; provided, however, that when a holder of AOLTIP Units is notified of the expected occurrence of an event that will cause his or her Unvested AOLTIP Units to become Vested AOLTIP Units (or at such other times as is permitted by the General Partner), such Person may give the Partnership an AOLTIP Conversion Notice conditioned upon and effective as of the time of vesting (or the occurrence of such other event as may be permitted by the General Partner), and such AOLTIP Conversion Notice shall become effective upon the time of such vesting (or such other event) unless it is revoked by the holder of the AOLTIP Units prior to such time. In all cases, the conversion of any AOLTIP Units into Common Units shall be subject to the conditions and procedures set forth in this Section 1.8.
(b) Mandatory Conversion. On the Mandatory Conversion Date, Vested AOLTIP Units that have not previously been converted shall be converted into Common Units without any further action on the part of the Partnership or the holder of such Vested AOLTIP Units. The “Mandatory Conversion Date” with respect to an AOLTIP Unit shall mean the date specified as such in the relevant Vesting
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Agreement or, if no such date is specified, the date that is the tenth (10th) anniversary of the date of issuance of such AOLTIP Unit.
(c) Forced Conversion in Connection with an AOLTIP Forced Conversion Event. Upon the effective time of an AOLTIP Forced Conversion Event (as defined below), at the election of the General Partner, either (i) all then outstanding AOLTIP Units shall vest and be converted into Common Units (a “AOLTIP Forced Conversion”) or (ii) the AOLTIP Units will remain outstanding and continue with appropriate adjustment pursuant to Section 1.7 above (and any other similar adjustment provisions applicable to the AOLTIP Units). Unless otherwise specified in the relevant Vesting Agreement for AOLTIP Units, an “AOLTIP Forced Conversion Event” shall mean an Extraordinary Transaction. In the event of an AOLTIP Forced Conversion, the Partnership shall use commercially reasonable efforts to cause each holder of AOLTIP Units to be afforded the right to receive, in connection with the AOLTIP Forced Conversion Event in consideration for the Common Units into which his or her AOLTIP Units will be converted, the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such AOLTIP Forced Conversion Event by a holder of the same number of Common Units, assuming such holder of Common Units is not a Constituent Person or an Affiliate of a Constituent Person. Regardless of whether the General Partner elects to cause an AOLTIP Forced Conversion, in the event the Partnership is a party to a transaction pursuant to which Common Units shall be exchanged for or converted into the right to receive cash, securities or other property, then, prior to the completion of such transaction, the General Partner shall give written notice to each holder of AOLTIP Units eligible for conversion into Common Units or that will become so eligible in connection with such transaction, and shall use commercially reasonable efforts to afford to such holders who exercise the right to convert prior to or in connection with such transaction the right to elect the form or type of consideration to be received with respect to each Common Unit issuable upon conversion of each AOLTIP Unit so converted to the same extent as the holders of the Common Units.
(d) Conversion Date. The date on which a Vested AOLTIP Unit shall be converted into Common Units (the “AOLTIP Unit Conversion Date” for such unit) shall be: (i) in the event of a conversion upon the exercise of the AOLTIP Conversion Right, the date on which the Partnership receives the AOLTIP Conversion Notice for the conversion of such Vested AOLTIP Unit (or, if later, the date upon which such AOLTIP Conversion Notice becomes effective), (ii) in the event of a conversion as a result of an AOLTIP Forced Conversion, upon the effective time of the applicable AOLTIP Forced Conversion Event or (iii) in the event of a conversion upon the Mandatory Conversion Date, the Mandatory Conversion Date.
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(e) Number of Units Convertible. A holder of Vested AOLTIP Units may convert each such Vested AOLTIP Unit into a number (or fraction thereof) of fully paid and non-assessable Common Units, giving effect to all adjustments (if any) made pursuant to Section 1.7, equal to the AOLTIP Conversion Factor (as defined below) for such Vested AOLTIP Unit on the AOLTIP Unit Conversion Date for such Vested AOLTIP Unit. The “AOLTIP Conversion Factor” for a Vested LTIP Unit shall mean the amount set forth in the Vesting Agreement or other documentation pursuant to which such AOLTIP Unit is issued, or, if not set forth therein, for an AOLTIP Unit as of a particular date, the quotient of (i) the excess of the AOLTIP Conversion Value over the AOLTIP Unit Participation Threshold (as defined below) for such AOLTIP Unit as of such date divided by (ii) the AOLTIP Conversion Value (or, if there is no such excess, zero). The “AOLTIP Conversion Value” of an AOLTIP Unit as of a particular date means the Value of a REIT Share on such date (or if such date is not a trading day, the most recent prior trading day) multiplied by the Conversion Factor, in each case, as of such date; provided that, notwithstanding the foregoing, the Value of a REIT Share as of the effective time of an Extraordinary Transaction as described in clauses (i)-(iii) of such definition shall be the value, as determined by the General Partner, of the consideration payable, or otherwise to be received by stockholders, per REIT Share pursuant to such Extraordinary Transaction. The “AOLTIP Unit Participation Threshold” shall mean, for each AOLTIP Unit, the amount specified as such in the relevant Vesting Agreement or other documentation pursuant to which such AOLTIP Unit is granted.
(f) Conversion Procedures. A conversion of Vested AOLTIP Units for which the holder thereof has given an AOLTIP Conversion Notice or that have converted upon the Mandatory Conversion Date or an AOLTIP Forced Conversion shall occur automatically after the close of business on the applicable AOLTIP Unit Conversion Date without any further action on the part of such holder of AOLTIP Units, as of which time such holder of AOLTIP Units shall be credited on the books and records of the Partnership with the issuance of the number of Common Units issuable upon such conversion.
(g) Treatment of Capital Account. For purposes of making future allocations under Section 6.1.I of the Agreement, the portion of the Economic Capital Account Balance of the applicable holder of AOLTIP Units that is treated as attributable to his or her AOLTIP Units (including those that are not subject to the conversion) shall be reduced, as of an AOLTIP Unit Conversion Date, by the lesser of (i) the product of the number of Common Units into which such holder’s AOLTIP Units were converted on such date multiplied by the Common Unit Economic Balance or (ii) the entire amount of the Economic Capital Account Balance of the applicable holder of AOLTIP Units that was treated as attributable to AOLTIP Units prior to such AOLTIP Unit Conversion Date. To the extent of the absolute amount of such reduction, the Economic Capital Account of such holder’s Common Units that were converted from his or her AOLTIP Units as of such
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AOLTIP Unit Conversion Date shall be increased in a manner consistent with Section 6.1.J(2)(ii) and Section 6.1.O of the Agreement (as if it were an allocation of Liquidating Gains). To the extent the Economic Capital Account Balance of the applicable holder of the converted AOLTIP Units that is treated as attributable to his or her AOLTIP Units (including those that are not subject to the conversion) exceeds the amount set forth in the previous sentence, such excess will be specially allocated first to such holder’s Common Units that were previously converted from AOLTIP Units in a manner consistent with Section 6.1.J(2)(ii) and Section 6.1.O of the Agreement and thereafter to the holder’s remaining AOLTIP Units in a manner consistent with Section 6.1.J(2)(iii) of the Agreement.
(h) Redemption Right. Notwithstanding the holding period set forth in Section 8.5.A of the Agreement, any Common Units received upon conversion of AOLTIP Units pursuant to this Section 1.8 shall be immediately entitled to the Redemption Right as of such conversion date.
1.9 Redemption at the Option of the Partnership. AOLTIP Units will not be redeemable at the option of the Partnership; provided, however, that the foregoing shall not prohibit the Partnership from repurchasing AOLTIP Units from the holder thereof if and to the extent such holder agrees to sell such units.
1.10 Voting Rights.
(a) No Voting Rights. Except as provided in Section 1.10(b), holders of AOLTIP Units shall not have the right to vote on any matters submitted to a vote of the Limited Partners
(b) Special Approval Rights. Holders of AOLTIP Units shall only (a) have those voting rights required from time to time by non-waivable provisions of applicable law, if any, and (b) have the additional voting rights that are expressly set forth in this Section 1.10(b). The General Partner and/or the Partnership shall not, without the affirmative vote of holders of more than 50% of the then outstanding AOLTIP Units affected thereby, given in person or by proxy, either in writing or at a meeting (voting separately as a class), take any action that would materially and adversely alter, change, modify or amend, whether by merger, consolidation or otherwise, the rights, powers or privileges of such AOLTIP Units, subject to the following exceptions: (i) no separate consent of the holders of AOLTIP Units will be required with respect to any alteration, change, modification or amendment of the rights, powers or privileges of the Common Units that applies on a substantially similar basis to all holders of Common Units; (ii) with respect to any merger, consolidation or other business combination or reorganization of the Partnership or Extraordinary Transaction, so long as either (x) there is an AOLTIP Forced Conversion of all outstanding AOLTIP Units in accordance with Section 1.8(c) of this Exhibit C or the holders of AOLTIP Units are treated in the same manner as if there was an AOLTIP Forced Conversion, (y) the AOLTIP Units
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remain outstanding with the terms thereof materially unchanged, or (z) if the Partnership is not the surviving entity in such transaction, the AOLTIP Units are exchanged for a security of the surviving entity with terms that are materially the same with respect to rights to allocations, distributions, redemption, conversion and voting as the AOLTIP Units and without any income, gain or loss expected to be recognized by the holder upon the exchange for U.S. federal income tax purposes (and with the terms of the Common Units or such other securities into which the AOLTIP Units (or the substitute security therefor) are convertible materially the same with respect to rights to allocations, distributions, redemption, conversion and voting), such merger, consolidation or other business combination or reorganization or Extraordinary Transaction shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the AOLTIP Units; (iii) any creation or issuance of Partnership Units (whether ranking junior to, on a parity with or senior to the AOLTIP Units in any respect, which either (x) does not require the consent of the holders of Common Units or (y) does require such consent and is authorized by a vote of the holders of Common Units, together with any other class or series of units of limited partnership interest in the Partnership upon which like voting rights have been conferred, shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the AOLTIP Units; and (iv) any waiver by the Partnership of restrictions or limitations applicable to any outstanding AOLTIP Units with respect to any holder or holders thereof shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the AOLTIP Units with respect to other holders. The foregoing voting provisions will not apply if, as of or prior to the time when the action with respect to which such vote would otherwise be required to be taken or be effective, all outstanding AOLTIP Units shall have been converted, or provision is made for such conversion to occur as of or prior to such time.
[End of text]
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Attachment A to Exhibit C
Notice of Election by Partner to Convert
AOLTIP Units into Common Units
AOLTIP Units into Common Units
The undersigned holder of AOLTIP Units hereby irrevocably elects to convert the number of Vested AOLTIP Units in EastGroup Properties, L.P. (the “Partnership”) set forth below into Common Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended. The undersigned hereby represents, warrants, and certifies that the undersigned: (a) has title to such AOLTIP Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such AOLTIP Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.
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Exhibit 31.1
Certification of Chief Executive Officer
EastGroup Properties, Inc.
I, Marshall A. Loeb, certify that:
1.I have reviewed this quarterly report on Form 10-Q of EastGroup Properties, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /s/ MARSHALL A. LOEB | |||||
| MARSHALL A. LOEB | |||||
| Chief Executive Officer | |||||
| July 22, 2026 | |||||
Exhibit 31.2
Certification of Chief Financial Officer
EastGroup Properties, Inc.
I, Staci H. Tyler, certify that:
1.I have reviewed this quarterly report on Form 10-Q of EastGroup Properties, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /s/ STACI H. TYLER | |||||
| STACI H. TYLER | |||||
| Chief Financial Officer | |||||
| July 22, 2026 | |||||
Exhibit 32.1
Certification of Chief Executive Officer
EastGroup Properties, Inc.
In connection with the quarterly report of EastGroup Properties, Inc. (the “Company”) on Form 10-Q for the period ended June 30, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Marshall A. Loeb, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. 1350, as adopted pursuant to 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1)The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ MARSHALL A. LOEB | |||||
| MARSHALL A. LOEB | |||||
| Chief Executive Officer | |||||
| July 22, 2026 | |||||
Exhibit 32.2
Certification of Chief Financial Officer
EastGroup Properties, Inc.
In connection with the quarterly report of EastGroup Properties, Inc. (the “Company”) on Form 10-Q for the period ended June 30, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Staci H. Tyler, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. 1350, as adopted pursuant to 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1)The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ STACI H. TYLER | |||||
| STACI H. TYLER | |||||
| Chief Financial Officer | |||||
| July 22, 2026 | |||||