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Exhibit 99(d)
AGREEMENT AND WAIVER
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AGREEMENT AND WAIVER (the "Waiver"), dated as of September 25,
1998, between EastGroup Properties, Inc., a Maryland corporation (the
"Corporation" or the "Company"), and Five Arrows Realty Securities II L.L.C., a
Delaware limited liability company (the "Investor"). Terms used herein and not
otherwise defined herein shall have the meanings set forth in the Corporation's
Articles of Incorporation, as amended through and on the date hereof (the
"Charter") and the Articles Supplementary (the "Articles Supplementary")
classifying 2,800,000 shares of the Corporation's Series B Cumulative
Convertible Preferred Stock (the "Preferred Shares").
WHEREAS, the Corporation intends to issue and sell to the Investor,
and the Investor intends to purchase from the Corporation, the Preferred Shares;
WHEREAS, the Charter and the Articles Supplementary set forth
certain restrictions with respect to the ownership of the Corporation's capital
stock;
WHEREAS, the Corporation desires to waive certain of those
restrictions on the terms and conditions set forth in this Waiver; and
WHEREAS, the Corporation's Board of Directors has approved the
provisions of this Waiver.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The
Corporation hereby represents and warrants to the Investor as follows:
(a) No individual (as determined for purposes of Section 856(h)
of the Code but including "qualified trusts" (as defined in Section
856(h)(3)(E) of the Code)), Beneficially Owns more than 9.8% of the
number of shares of each class of the outstanding Stock and, to the
knowledge of the Corporation, no such individual Beneficially Owns more
than 5% of each such class. The Corporation has not granted any waiver
of the Ownership Limit in the Charter or Articles Supplementary.
(b) (i) Attached hereto as Exhibit A is a true and complete list
of the Tenants which have leases which provide for the payment of annual
"rents from real property" to the Company (as such term is defined in
Section 856(d) of the Code, and giving effect to the provisions of
Treasury Regulation Section 1.856-3(g)) in an amount, determined solely
with reference to the amount required to be included in the gross income
of the Company for purposes of applying Section 856(c) of the Code, in
excess of $500,000 (a "Major Lease") (it being understood that at any
time and from time to time
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the Corporation may, subject to Section 3(b) hereof, notify the Investor
that there has been an addition to or a change in Tenants and supply to
the Investor a revised Exhibit A, which shall become Exhibit A hereto as
of and after the date of receipt by the Investor of such revised Exhibit
A), (ii) the Corporation does not own, directly or indirectly (after
applying the constructive ownership rules of Section 856(d)(5) of the
Code) any stock or other equity interests in any such Tenant (as
determined for purposes of applying Section 856(d)(2)(B) of the Code)
and (iii) for purposes of Section 856(c)(2) of the Code, at least 98% of
the gross income of the Corporation for the calendar year ending
December 31, 1997, was derived from the sources specified in Section
856(c)(2) of the Code ("Qualifying Income"). For purposes of this
Agreement, the term "Tenant" refers to any corporation, partnership,
limited liability company, joint venture, unincorporated organization,
estate, trust, or any other entity that pays or is expected to pay
"rents from real property" (as such term is defined in Section 856(d) of
the Code) to the Corporation or to any entity all or part of the income
of which would be attributed to the Company for purposes of applying
Sections 856(c)(2) and 856(c)(3) of the Code.
(c) Under current law, the only basis upon which the Investor
could cause the Corporation to fail to qualify as a REIT solely by
reason of the ownership by the Investor of the Preferred Shares or
shares of Common Stock into which the Preferred Shares have been
converted (such Preferred Shares or shares of Common Stock, hereinafter,
the "Subject Shares") (it being understood that this representation does
not apply to any failure to qualify as a result of any action, inaction
or event, including but not limited to the provision of any service or
the institution of any legal proceeding, by any person, including but
not limited to the Investor, that could affect the Company's status as a
REIT), is by (i) the Investor owning, actually or Beneficially, shares
of Stock to the extent that such actual or Beneficial Ownership of Stock
would result in the Corporation being "closely-held" within the meaning
of Section 856(h) of the Code or (ii) actual or constructive ownership
of an interest in the Company that, after application of the
constructive ownership rules of Section 856(d)(5) of the Code, would
result in the Corporation being deemed to own, after application of such
rules, an interest in a Tenant that would cause the Corporation to own
or be deemed to own, for purposes of applying Section 856(d)(2)(B) of
the Code, 10% or more of the voting power or number of shares, or
interests in assets or net profits, as applicable, in such Tenant and
the income derived by the Corporation from such Tenants, when combined
with other income that is both (i) required to be taken into account by
the Company for purposes of applying Section 856(c) of the Code and (ii)
not described in Sections 856(c)(2)(A) through (H) or Sections
856(c)(3)(A) through (I) of the Code, as applicable, would cause the
Corporation to fail to satisfy any of the gross income requirements of
Section 856(c) of the Code.
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2. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
(a) Relying upon and assuming the accuracy of the
representations and warranties given by the Corporation set forth in
Section 1, the ownership by the Investor and The Public Employees
Retirement System of Ohio ("OPERS") of the Subject Shares will not
result in the Corporation being "closely-held" within the meaning of
Section 856(h) of the Code and will not result in the Corporation
otherwise failing to qualify as a REIT.
(b) Attached hereto as Exhibit B is a true and complete list of
the persons owning a capital or profits interest in the Investor, the
interest owned in the Investor by each such person, the persons owning
beneficial interests in the entities (other than OPERS) owning a capital
or profits interest in the Investor and the interest owned by each such
person.
(c) OPERS is a "qualified trust" as that term is defined in
Section 856(h)(3)(E) of the Code except to the extent that it not being
a "qualified trust" would not result in the Corporation being
"closely-held" within the meaning of Section 856(h) of the Code or would
not result in the Corporation otherwise failing to qualify as a REIT.
(d) The Investor and those persons owning a direct or indirect
interest in the Investor collectively own, directly or indirectly, no
more than 1% of the value of the Corporation, not including the Subject
Shares.
(e) No person has a beneficial interest in OPERS with a value of
more than 0.2% of the total value of all beneficial interests in OPERS.
(f) (i) Except as notified to the Corporation by the Investor
pursuant to Section 4(b), the Investor directly owns no stock or other
equity interest in excess of 4.9% in a Tenant identified on Exhibit A
(as the same may be amended from time to time), and (ii) except as
notified to the Corporation by the Investor pursuant to Section 4(b), no
Person owns a stock or other equity interest (as determined for purposes
of applying Section 856(d)(2)(B) of the Code) in a Tenant identified on
Exhibit A (as the same may be amended from time to time) that would both
(A) be attributable to Investor by operation of Section 318 of the Code,
as modified by Section 856(d)(5) of the Code and (B) result in the
Investor being deemed to own, pursuant to such section as so modified,
in excess of 4.9% of such stock or other equity interests in such
Tenant.
(g) For purposes of applying Section 856(h) of the Code, no
individual (as determined for purposes of applying Section 856(h) but
including "qualified trusts" other than OPERS) is or will be deemed to
own more than 0.2% of either the value or number of shares of the
outstanding Stock by virtue of the Investor's or OPERS' ownership of the
Subject Shares, except for the direct or indirect individual members of
Rothschild Realty Investors II L.L.C., no one of whom, following such
acquisition, will be deemed to own directly or indirectly (for purposes
of applying such section), more than 9.8% of either the value or number
of shares of the outstanding Stock.
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3. UNDERTAKINGS OF THE CORPORATION.
(a) Other than the waiver provided pursuant to this Waiver, the
Corporation will not grant any waiver of the Ownership Limit in the
Charter or the Articles Supplementary if such waiver would cause the
Corporation to be "closely-held" or a "pension-held REIT," both within
the meaning of Section 856(h) of the Code.
(b) Before the Corporation, or any entity, all or part of the
income of which would be attributed to the Company for purposes of
applying Sections 856(c)(2) and 856(c)(3) of the Code, enters into a
Major Lease, the Corporation will provide the name of the proposed
Tenant to the Investor. Investor shall inform (or be treated as
informing pursuant to Section 4(b) hereof) the Corporation if the
Investor owns or is deemed to own, for purposes of Section 856(d)(2)(B)
of the Code, more than a 4.9% interest in the proposed tenant.
(c) Except as provided in this Waiver, the Corporation will not
take any action or fail to take any reasonable action that it knows (or
reasonably should know) would reasonably be expected to result in (other
than (i) any action or failure to take action required to preserve the
Corporation's status as a REIT or (ii) any action or failure to take
action in reliance upon the representations and warranties of the
Investor in Section 2 or the undertakings of the Investor in Section 4),
(x) the Investor owning, actually or Beneficially, shares of Stock to
the extent that such actual or Beneficial Ownership of Stock would
result in the Corporation being "closely-held" within the meaning of
Section 856(h) of the Code or would result in the Corporation otherwise
failing to qualify as a REIT, in either case solely by reason of the
actual or Beneficial Ownership of the Subject Shares by the Investor and
OPERS, or (y) less than 97% of the gross income of the Corporation for
any year (for purposes of Section 856(c)(2) of the Code) being
Qualifying Income (it being understood that unless the Company has
failed to comply with Section 1(b) and 3(b) hereof, the Company shall be
entitled to assume for this purpose that it does not own and is not
deemed to own any interest in a Tenant described in Section 856(d)(2)(B)
of the Code by reason of the ownership of the Subject Shares by the
Investor, any person owning a capital or profits interest in the
Investor, OPERS, any person having a beneficial interest in OPERS, or
any transferee that executes a Successor Waiver Agreement (as defined in
Section 6), despite the receipt of any notice to the contrary pursuant
to Section 4(b)).
4. UNDERTAKINGS OF THE INVESTOR.
(a) The Investor and those persons identified on Exhibit B or
who, following the date hereof, acquire a direct or indirect capital or
profits interest in the Investor (the "Investor Group") will not take
any action or fail to take any reasonable action that the Investor or
any such Person knows (or reasonably should know) would reasonably be
expected to cause: (i) the Investor to be an individual for purposes of
Section 542(a)(2) of the Code as modified by Section 856(h) of the Code,
(ii) OPERS to fail to qualify as a "qualified trust" as that term is
defined in Section 856(h)(3)(E) of the
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Code, (iii) any individual (as determined for purposes of applying
Section 856(h) but including "qualified trusts" other than OPERS),
except for the direct or indirect individual members of Rothschild
Realty Investors II L.L.C., to be deemed to own more than 0.2% of either
the value or number of shares of the outstanding Stock by virtue of the
Investor's or OPERS' ownership of the Subject Shares, (iv) a direct or
indirect individual member of Rothschild Realty Investors II L.L.C. to
be deemed to own (for purposes of applying such section), more than 9.8%
of either the value or number of shares of the outstanding Stock, (v)
any person to have a beneficial interest in OPERS with a value of more
than 0.2% of the total value of all beneficial interests in OPERS, (vi)
except as notified to the Corporation by the Investor pursuant to
Section 4(b), Investor to directly acquire a stock or other equity
interest in a Tenant identified on Exhibit A (as the same may be amended
from time to time) following the date hereof in excess of 4.9% of such
stock or other equity interests in such Tenant and (vii) except as
notified to the Corporation by the Investor pursuant to Section 4(b),
any Person to acquire a stock or other equity interest (as determined
for purposes of applying Section 856(d)(2)(B) of the Code) in a Tenant
identified on Exhibit A, following the receipt of such Exhibit A (as the
same may be amended from time to time), that would both (A) result in
the Investor and the Corporation being deemed to own, by operation of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code,
in excess of 4.9% of such stock or other equity interests in such
Tenant, and (B) result in the Corporation having gross income for any
year which is not Qualifying Income in excess of 2% of the gross income
of the Corporation (as determined for purposes of Section 856(c)(2) of
the Code.
(b) The Investor shall inform the Corporation (i) within 10
business days of receiving any notice from the Corporation set forth in
Section 3(b) hereof, if the Investor or any person having a direct or
indirect ownership interest in the Investor owns or is deemed to own,
for purposes of applying Section 856(d)(2)(B) of the Code, more than a
4.9% ownership interest in such proposed Tenant and the nature of such
ownership (any such failure to notify the Corporation within such 10
business day period will for all purposes be deemed to be an affirmative
statement by the Investor to the Corporation that neither the Investor
nor any person having a direct or indirect ownership interest in the
Investor owns or is deemed to own, for purposes of applying such
section, more than a 4.9% ownership interest in such proposed Tenant),
(ii) within 10 business days of the end of each quarter of the
Corporation's fiscal year, if the Investor or any person having a direct
or indirect ownership interest in the Investor owns or is deemed to own,
for purposes of applying Section 856(d)(2)(B) of the Code, more than a
4.9% ownership interest in any Tenant provided on Exhibit A (as the same
may be amended from time to time) and (iii) within 10 business days of
any reasonable request from the Corporation concerning the level of
ownership in any such Tenant.
5. WAIVER. On the basis of the accuracy of the representations and
warranties of the Investor contained in Section 2 and the undertakings in
Section 4, the Corporation, pursuant to subparagraph (2)(f)(i), and subject to
subparagraph (2)(b)(i), of Article V of the Charter, hereby exempts the Investor
from the restrictions on ownership of Equity Stock set forth in the Charter (the
"Ownership Restrictions"), including subparagraph 2(b)(i) of Article
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V of the Charter; such exemption to be effective only to the extent it does not
result in any individual (as determined for purposes of Section 856(h) of the
Code but excluding OPERS and any qualified trusts as defined in Section
856(h)(3)(E) of the Code) Beneficially Owning more than 9.8% of either the value
or number of shares of the Company's outstanding Stock or the Corporation
otherwise failing to qualify as a real estate investment trust under Section
856(a) of the Code.
6. TRANSFER OF SUBJECT SHARES; RIGHT OF FIRST REFUSAL. The
provisions of this Section 6 apply in the event the Investor seeks to transfer
Subject Shares in a manner that, but for this Section 6, would result in a
violation of the Ownership Restrictions.
(a) Subject to the provisions of this Section 6, the Corporation
hereby waives the Ownership Restrictions to the extent necessary to
enable the Investor to transfer ownership of Subject Shares to another
Person subsequent to the 24 month period beginning on the date hereof.
(b) The waiver described in paragraph (a) shall not become
effective until the right of first refusal period provided in Section 7
with respect to the Subject Shares that the Investor seeks to transfer
in excess of the number of Subject Shares that the intended transferee
(the "Intended Transferee") may acquire without violating the Ownership
Restrictions (the "Extra Subject Shares") has expired or otherwise
terminated without the Corporation having exercised its right to
purchase such Extra Subject Shares.
(c) The waiver described in paragraph (a) shall be conditioned
on obtaining from the Intended Transferee representations and
undertakings reasonably requested by the Corporation in order to ensure
that no individual (as determined for purposes of Section 856(h) of the
Code but excluding "qualified trusts" as defined in Section 856(h)(3)(E)
of the Code) will Beneficially Own more than 9.8% of either the value or
number of shares of the outstanding Stock following the Intended
Transferee's acquisition of the Subject Shares. The parties agree that
the phrase "representations and undertakings reasonably requested"
includes, but is not limited to, representations and undertakings
similar to those set forth in Section 2 and 4 hereof (but as modified by
this Section 6). Such representations and undertakings shall be included
in an agreement between the Corporation and the Intended Transferee
consistent with the terms of this Waiver (a "Successor Waiver
Agreement").
7. RIGHT OF FIRST REFUSAL. For purposes of this Section 7, the term
"Transfer" shall have the following meaning:
"TRANSFER" shall mean any direct or indirect disposition of an
interest whether by sale, exchange, merger, consolidation, transfer, assignment,
conveyance, distribution, pledge, inheritance, gift, mortgage, the creation of
any security interest in, or lien or encumbrance upon, any other disposition of
any kind and in any manner, by operation of law or otherwise, of Subject Shares
or any other transfer or agreement which would result in a change in the
percentage of the Subject Shares actually or Beneficially Owned by the Investor.
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(a) RESTRICTIONS. The Investor agrees that it will not Transfer
any Extra Subject Shares (or any direct or indirect interest therein) or
any stock certificate representing the same, now or hereafter at any
time owned by it, except to current partners of the Investor and as
required or permitted by this Section 7.
(b) BONA FIDE OFFERS. (a) If the Investor desires to Transfer
any Extra Subject Shares and such Investor shall have received a bona
fide written offer (a "Bona Fide Offer") that it intends to accept from
a Person (the "Outside Party") for the Transfer of such Extra Subject
Shares, the Investor shall give written notice (the "Option Notice") to
the Corporation setting forth such desire, which notice shall set forth
at least the name and address of the Outside Party and the price and
terms of the Bona Fide Offer and shall be accompanied by a copy of the
Bona Fide Offer, a statement executed by the Outside Party setting forth
the number of shares and type of Capital Stock beneficially owned (for
purposes of applying Section 13(d)(3) of the Securities Exchange Act of
1934) by such Outside Party and any Affiliate thereof, and evidence
reasonably demonstrating the Outside Party's ability to consummate such
offer. Upon the giving of such Option Notice, the Corporation shall have
the option to purchase for cash, at the price offered by the Outside
Party in the Bona Fide Offer, all, but not less than all, of the Extra
Subject Shares specified in the Option Notice, said option to be
exercised within ten (10) business days following the giving of such
Option Notice, by giving a counter-notice (a "Counter-Notice") to the
Investor. In the event that the Bona Fide Offer provides, in whole or in
part, for non-cash consideration, the "price" offered by the Outside
Party shall be deemed to be the amount of cash, if any, provided in the
Bona Fide offer plus the fair market value of the non-cash consideration
as initially determined in good faith by the majority of the
disinterested members of the Board, which determination may be
challenged by the Investor.
(c) Subject to paragraph (d), in the event that the Corporation
elects to purchase Extra Subject Shares pursuant to Section 7(a), the
Corporation will be obligated to purchase, and the Investor shall be
obligated to sell, such Extra Subject Shares at a closing (which shall
be the closing for all Extra Subject Shares being purchased in
connection with such Option Notice) to be held on the thirtieth business
day after the delivery of the Corporation's counter-notice to such
Investor at the principal executive offices of the Corporation, or at
such other time and place as may be mutually acceptable to the
Corporation and the Investor.
(d) If the Corporation elects not to purchase all of the Extra
Subject Shares subject to the Bona Fide Offer within the time limits
specified above, then the offer to sell any of the Extra Subject Shares
to the Corporation shall be deemed revoked and the Investor, at any time
within a period of sixty-five (65) business days following the
expiration of such time limits, may Transfer all (but not less than all)
of such Extra Subject Shares to the Outside Party at no lower price than
set forth in the Bona Fide Offer and on substantially the same economic
terms contained in the Bona Fide Offer; PROVIDED, HOWEVER, that in the
event the Investor has not so Transferred said Extra Subject Shares to
the Outside Party within said sixty-five (65) day period, then said
Extra
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Subject Shares thereafter shall continue to be subject to all of the
restrictions contained in this Waiver as though no Option Notice had
ever been given.
(e) At the closing of any purchase of Extra Subject Shares
pursuant to this Section 7, the Investor shall deliver certificates
representing such Extra Subject Shares duly endorsed for transfer and
accompanied by all requisite stock transfer taxes to the extent required
by the Bona Fide Offer to be paid by the Investor. Any Extra Subject
Shares purchased pursuant to this Section 7 shall be free and clear of
any and all liens, claims, options, charges, encumbrances, voting
trusts, irrevocable proxies or other rights of any kind or nature and at
the closing of the purchase the Investor shall represent and warrant to
such effect and to the effect that the Investor is the beneficial owner
of such Extra Subject Shares.
(f) If, in any instance, the Corporation elects not to exercise
its rights hereunder or elects to waive such rights, such election shall
not constitute a waiver of such the Corporation's rights to receive an
Option Notice in the case of any Transfer subsequently proposed by the
Investor.
8. VIOLATION.
(a) In the event of any breach of a representation or warranty
given by the Investor in Section 2 or a violation of any of the
undertakings set forth in Section 4 (other than as a result of a breach
by the Corporation of any of the representations or warranties of the
Corporation set forth in Section 1 or a violation by the Corporation of
any of the undertakings of the Corporation set forth in Section 3), in
addition to all rights provided in this Waiver, in the Charter or the
Articles Supplementary, or granted by law (including recovery of
damages), the Waiver set forth in Section 5 hereof shall, to the extent
reasonably determined by the Board to be necessary in order for the
Corporation to qualify for taxation as a REIT, be void ab initio and
shall result in a conversion of such portion (as reasonably determined
by the Board to be necessary) of the Subject Shares into Excess Stock
or, if an IRS Ruling Satisfactory to the Corporation has not been
obtained, shall to such extent cause the issuance or acquisition of all
or a portion of the Subject Shares to be void ab initio, in either case
to the same extent as if the Waiver in Section 5 hereof had never been
granted, and to be subject to the ownership limits and related
provisions set forth in the Charter and the Articles Supplementary.
(b) In addition to and not in limitation of the provisions of
paragraph (a), to the extent the Investor or OPERS attempts to acquire
Beneficial Ownership of Stock that would result in any individual (other
than OPERS or any other "qualified trust") Beneficially Owning in excess
of 9.8% of either the value or number of shares of the outstanding
Stock, such purported acquisition shall be void ab initio and shall
result in a conversion of such excess Stock into Excess Stock, or if an
IRS Ruling Satisfactory to the Corporation has not been obtained, shall
cause the issuance or acquisition of such Excess Stock to be void AB
INITIO.
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(c) In the event the Corporation breaches any of the
representations and warranties given by the Corporation in Section 1 or
any of the undertakings in Section 3 and such breach results in shares
of Common Stock issued upon conversion of the Preferred Shares or
Preferred Shares being exchanged for Excess Stock or automatic
repurchase in accordance with subparagraph 2(c) or (d) of Article V of
the Charter, the Investor shall be entitled to exercise all rights
provided herein or granted by law (including recovery of damages) or in
equity.
9. CHANGE IN LAW. In the event that there is a change in law or in
the interpretation of the law of which the Corporation or the Investor has
knowledge that may cause or has caused any Subject Shares held by the Investor
to be exchanged for Excess Stock or to be void ab initio, the Corporation and
the Investor shall communicate such knowledge to the other party and shall use
reasonable efforts (a) to prevent such occurrence or circumstance, (b) to amend
the documents and instruments with respect to the Subject Shares held by the
Investor to mitigate the effect of such change (provided, however, that in
effecting such amendment, the Corporation shall in no event be required to (i)
materially disproportionately disadvantage any other security holder of the
Corporation, (ii) provide the Investor as a holder of the Subject Shares with
better terms, on a whole, than existed with respect to such Preferred Shares or
Common Stock prior to such amendment or (iii) repurchase any securities of the
Corporation owned, directly or indirectly, by the Investor), and (c) unless
required by the Charter or the Articles Supplementary or in order to preserve
the Corporation's status as a REIT, to not disproportionately disadvantage the
Investor with respect to other security holders of the Corporation in
determining, if the Corporation is permitted to make such a determination, which
shares of the Corporation's Stock shall be void ab initio or exchanged for
Excess Stock or repurchased.
10. ASSIGNMENT. Except to the extent provided herein, no party
hereto may assign (by operation of law or otherwise) either this Waiver or any
if its rights, interests, or obligations hereunder without the prior written
consent of the other party in its sole and absolute discretion.
11. AMENDMENTS. The provisions of this Waiver, including the
provisions of this sentence (but excluding Exhibit A, which may be amended in
accordance with Section 1), may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless each of the parties hereto consents in writing to such amendment,
modification, supplement or waiver. Each such consent or waiver shall be
effective only in the specific instance and for the specific purpose for which
given.
12. NOTICE. All notices hereunder shall be in writing and shall be
given: (a) if to the Company, at 300 One East Jackson Place, 188 East Capitol
Street, Jackson, Mississippi 39201, Attention: President, or such other address
or addresses of which the Investor shall have been given notice, with copies to
Jaeckle Fleischmann & Mugel, LLP, Twelve Fountain Plaza, Buffalo, New York
14202, Attention: Joseph P. Kubarek, Esq., or such other address of which the
Investor shall have been given notice; and (b) if to the Investor, at Rothschild
Realty Inc., 1251 Avenue of the Americas, New York, New York 10020, Attn:
Matthew Kaplan, or such
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other address of which the Company shall have been given notice, with copies to
Schulte Roth & Zabel LLP, 900 Third Avenue, New York, New York 10022, Attn:
Andre Weiss, Esq., or such other address of which the Company shall have been
given notice. Any notice shall be deemed to have been given if personally
delivered or sent by United States mail or by commercial courier or delivery
service or by telegram or telex and shall be deemed received, unless earlier
received, (i) if sent by certified or registered mail, return receipt requested,
three business days after deposit in the mail, postage prepaid, (ii) if sent by
United States Express Mail or by commercial courier or delivery service, one
Business Day after delivery to a United States Post Office of delivery service,
postage prepaid, (iii) if sent by telegram, telex or facsimile transmission,
when receipt is acknowledged by answerback, and (iv) if delivered by hand, on
the date of receipt.
13. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
14. HEADINGS. The headings in this Waiver are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
15. GOVERNING LAW. This Waiver shall be governed by and construed
in accordance with the laws of the State of Maryland as applied between
residents of that State entering into contracts wholly to be performed in that
State.
16. COUNTERPARTS. This Waiver may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver as of the date first written above.
EASTGROUP PROPERTIES, INC.,
a Maryland corporation
By: /s/ N. Keith McKey
------------------------------------
Name: N. Keith McKey
Title: Chief Financial Officer and Executive Vice
President
FIVE ARROWS REALTY SECURITIES II L.L.C.,
a Delaware limited liability company
By: /s/ Matthew W. Kaplan
------------------------------------
Name: Matthew W. Kaplan
Title: Manager
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