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EXHIBIT 10.16
AGREEMENT AND PLAN OF CONTRIBUTION
(CONTRIBUTION TO AMERICAN SPECTRUM or OPERATING PARTNERSHIP)
This Agreement and Plan of Contribution (this "Agreement") is entered
into as of this 6th day of August 2000, by and between American Spectrum
Realty, Inc., a Maryland corporation (the "Company" or "American Spectrum") and
No.-So., Inc. (the "Contributor").
RECITALS:
WHEREAS, American Spectrum or American Spectrum Operating Partnership,
L.P. (the "Operating Partnership"), as the case may be, and the Contributor
(the "Parties," and individually, a "Party") hereto desire to enter into the
Agreement as part of the consolidation transaction set forth in the draft dated
July 31, 2000 of the registration statement of the Company on Form S-4
including all amendments thereto (the "Registration Statement"), to be filed
with the Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), of which the
Prospectus/Consent Solicitation Statement of the Company (the
"Prospectus/Consent Solicitation Statement") is a part; and
WHEREAS, the subject property is known as Beach and Xxxxxxx Pad D and is
more particularly described in Section 2.1 hereof; and
WHEREAS, the Contributor desires to contribute to American Spectrum or
the Operating Partnership and American Spectrum or the Operating Partnership
desires to acquire , as a result of this contribution, all of Contributor's
right, title and interest in and to the subject property in exchange for
American Spectrum Shares or Operating Partnership Units; and
WHEREAS, the Company's Articles of Incorporation and Bylaws permit, and
resolutions adopted by the Company's board of directors authorize this
Agreement and the consummation of the transfer of the property pursuant to this
Agreement (the "Contribution"); and
WHEREAS, the Operating Partnership's limited partnership agreement
permits this Agreement and the consummation of the transfer of the property
pursuant to this Agreement (the "Contribution"); and
WHEREAS, the Contributor has duly approved this Agreement and the
consummation of the Contribution; and
WHEREAS, the Parties hereto anticipate that the Contribution will further
certain of their business objectives.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
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ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"Accredited Investor" has the meaning set forth in Section 8.1 below.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Agreement" means this Agreement, as amended from time to time.
"American Spectrum" has the meaning set forth in the Preface above.
"American Spectrum Common Shares" shall mean the shares of common stock,
$.01 par value, of American Spectrum.
"Articles of Incorporation" means the articles of incorporation of
American Spectrum.
"Business Combination" has the meaning set forth in Section 3.1 below.
"Bylaws" means the bylaws of American Spectrum.
"Closing" has the meaning set forth in Section 2.2 below.
"Closing Date" has the meaning set forth in Section 2.2 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the Preface above.
"Contribution" has the meaning set forth in the Preface above.
"Contributor" has the meaning set forth in the Preface above.
"Exchange Agent" has the meaning set forth in Section 3.3 below.
"Managing General Partner" means the managing general partner of the
Contributor where such Contributor is a limited partnership.
"Managing Member" means the managing member of the Contributor where such
Contributor is a limited liability company.
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"Material Adverse Effect" means, as to any Party, a material adverse
effect on the business, properties, operations or condition (financial or
otherwise) which is not related to any industry-wide change in the economy or
market or other conditions affecting all businesses in the industry of the
Party to which the term is applied.
"Operating Partnership" has the meaning set forth in the Preface above.
"Operating Partnership Unit Consideration" has the meaning set forth in
Section 3.1 below.
"Operating Partnership Units" means limited partnership units of the
Operating Partnership.
"Party" or "Parties" has the meaning set forth in the Preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, an unincorporated organization, a governmental entity (or
any department, agency, or political subdivision thereof) or other entity.
"Prospectus/Consent Solicitation Statement" has the meaning set forth in
the first paragraph of the Recitals above.
"Registration Statement" has the meaning set forth in the first paragraph
of the Recitals above.
"SEC" has the meaning set forth in the first paragraph of the Recitals
above.
"Securities Act" has the meaning set forth in the first paragraph of the
Recitals above.
"Share Consideration" has the meaning set forth in Section 3.1.
"Stockholders" means stockholders of the Contributor.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp occupation, premium,
windfall profits, environmental (including taxes under Code (S) 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
ARTICLE II
CONTRIBUTION OF PROPERTY
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2.1 Contribution and Assignment. Subject to the terms and conditions
hereinafter specified, Contributor agrees to contribute to American Spectrum or
the Operating Partnership and American Spectrum or the Operating Partnership
agrees to acquire from Contributor, as a result of this contribution to
capital, (i) Contributor's interest in the buildings and improvements
(collectively, the "Building") and that certain plot, piece and parcel of land
(the "Land") known as Beach and Xxxxxxx Pad D and more particularly described
in Exhibit A hereto (the Building and the Land are collectively referred to as
the "Premises") and (ii) all of Contributor's right, title and interest in, to
and under:
(a) all easements, rights of way, privileges, appurtenances,
strips, gores, air rights and other rights pertaining to the Premises, if any;
(b) any land lying in the bed of any street, road, avenue, open or
proposed, public or private, in front of or adjoining the Premises or any
portion thereof, to the center line thereof, and any award to be made in lieu
thereof and in and to any unpaid award for damage to the Premises by reason of
change of grade of any street occurring after the date of execution and
delivery of this Agreement;
(c) all the fixtures, furniture, furnishings, equipment and other
personal property owned by Contributor and used in connection with the Premises
(the Personalty");
(d) all of Contributor's right, title and interest in and to all
leases and other occupancy agreements for the leasing of space at the Premises
(collectively, the "Leases"), and all security deposits under the Leases
(collectively, the "Security Deposits") which have not been applied by
Contributor to the payment of past due amounts under the Leases in accordance
with the terms of the respective Leases (and which shall continue to be held in
accordance with the terms and conditions of the respective Leases);
(e) all of Contributor's right, title and interest in and to
service, supply, security, maintenance, employment and all other agreements,
licenses or contracts (the "Contracts"), subject to any consents required
pursuant to the terms and provisions of such Contracts; and
(f) all certificates of occupancy and other documents, permits,
warranties, guarantees and approvals pertaining to the operation of the
Premises (collectively, the "Permits"; the Premises, the Personalty, the
Leases, the Security Deposits, the Contracts and the Permits being hereinafter
collectively referred to as the "Property").
2.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxxxx Xxxx
XXX, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx simultaneously with the Closing of the
Consolidation pursuant to the Prospectus/Consent Solicitation Statement (the
"Closing Date"), but in no event later than December 31, 2001, unless extended
by the mutual agreement of the Parties.
2.3 Parties to the Contribution. The Contribution shall be to American
Spectrum or the Operating Partnership, as shall be determined by the
Contributor with the consent of American Spectrum, which consent shall not be
unreasonably withheld.
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ARTICLEIII
CONSIDERATION
3.1 Share or Operating Partnership Unit Consideration. (a) At the
Closing, the Stockholders will be issued American Spectrum Common Shares (the
"Share Consideration") or Operating Partnership Units (the "Operating
Partnership Unit Consideration") in such amounts as shall be determined in
accordance with the final Prospectus/Consent Solicitation Statement. The
Contributor acknowledges that the amounts and terms may be different from that
set forth in the draft Prospectus/Consent Solicitation Statement.
(b) Prior to the Closing, if American Spectrum splits or combines
American Spectrum Common Shares; or pays a stock dividend or other stock
distribution in American Spectrum Common Shares, or in rights or securities
exchangeable or convertible into or exercisable for American Spectrum Common
Shares, or otherwise changes the American Spectrum Common Shares into, or
exchanges the American Spectrum Common Shares for, any other securities
(whether pursuant to or as part of a merger, consolidation, acquisition of
property or stock, separation, reorganization, or liquidation of American
Spectrum as a result of which American Spectrum stockholders receive cash,
stock, or other property in exchange for, or in connection with, their American
Spectrum Common Shares (a "Business Combination") or otherwise)), then the
American Spectrum Common Shares or Operating Partnership Units to be received
by the Stockholders of the Contributor will be appropriately adjusted to
reflect such event.
3.2 Fractional American Spectrum Common Shares. No certificates
representing fractional American Spectrum Common Shares or fractional Operating
Partnership Units shall be issued. Each Stockholder who would otherwise be
entitled to a fractional American Spectrum Common Shares or fractional
Operating Partnership Units will receive one American Spectrum Common Share or
Operating Partnership Unit for each fractional interest representing 50% or
more of one American Spectrum Common Share or Operating Partnership Unit. No
American Spectrum Common Shares or Operating Partnership Unit will be issued
for a fractional interest representing less than 50% of an American Spectrum
Common Share or Operating Partnership Unit.
3.3 Issuance of Shares and Operating Partnership Units. American
Spectrum shall designate an exchange agent (the "Exchange Agent") to act as
such in connection with the issuance of certificates representing the American
Spectrum Common Shares and Operating Partnership Units pursuant to this
Agreement.
ARTICLEIV
REPRESENTATIONS AND WARRANTIES OF AMERICAN SPECTRUM
AND THE OPERATING PARTNERSHIP
American Spectrum represents and warrants to the Stockholders and the
Contributor that the statements contained in this Article IV are correct and
complete as of the date hereof:
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4.1 Organization, Qualification and Corporate Power. American Spectrum
is a corporation duly organized, validly existing, and in good standing under
the laws of Maryland, as set forth in the Preface. American Spectrum is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction where such qualification is required, except where failure to so
qualify or obtain authorization would not have a Material Adverse Effect on
American Spectrum. The Operating Partnership is a limited partnership duly
organized, validly existing and in good standing under the laws of Delaware, as
set forth in the Preface. The Operating Partnership is duly authorized to
conduct business and is in good standing under the laws of each jurisdiction
where such qualification is required, except where failure to so qualify or
obtain authorization would not have a Material Adverse Effect on the Operating
Partnership.
4.2 Authorization for Common Stock. The Share Consideration and the
Operating Partnership Units will, when issued, be duly authorized, validly
issued, fully paid and nonassessable, and no stockholder or partner of American
Spectrum will have any preemptive right or similar rights of subscription or
purchase in respect thereof.
4.3 Authorization of Transaction. American Spectrum and the Operating
Partnership have full power and authority (including full corporate and limited
partnership power and authority) to execute and deliver this Agreement and to
perform their obligations hereunder. The execution, delivery and performance
by American Spectrum and the Operating Partnership of this Agreement has been
duly and validly authorized by the board of directors of American Spectrum.
This Agreement constitutes the valid and legally binding obligation of
American Spectrum or the Operating Partnership, enforceable in accordance with
its terms and conditions. Neither American Spectrum nor the Operating
Partnership is required to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement,
except in connection with the federal securities laws, the Xxxx Xxxxx Xxxxxx
Act, if applicable, and any applicable "Blue Sky" or state securities laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES CONCERNING
THE CONTRIBUTOR
The Contributor represents and warrants to American Spectrum and the
Operating Partnership that the statements contained in this Article V are
correct and complete as of the date hereof.
5.1 Organization, Qualification and Corporate Power. The Contributor
is duly authorized to conduct business and is in good standing under the laws
of each jurisdiction where such qualification is required, except where failure
to so qualify or obtain authorization would not have a Material Adverse Effect
on the Contributor.
5.2 Authorization of Transaction. The Contributor has full power and
authority to
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execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Contributor, enforceable in accordance with its terms and conditions. The
Contributor is not required to give any notice to, make any filing with, or
obtain any authorization, consent or approval of any governmental agency in
order to consummate the transactions contemplated by this Agreement, except in
connection with federal securities laws, the Xxxx Xxxxx Xxxxxx Act, if
applicable, and any applicable "Blue Sky" or state securities laws.
5.3 Investment Representation.
(a) Each of the Stockholders of the Contributor, by reason of its
business and financial experience.
(i) has such knowledge, sophistication and experience in
financial and business matters and in making investment decisions of this type
that it is capable of evaluating the merits and risks of and of making an
informed investment decision with respect to an investment in American Spectrum
Common Shares or Operating Partnership Units,
(ii) is capable of protecting its own interest, and
(iii) is capable of bearing the economic risk of such investment.
(b) Each of the Stockholders of the Contributor is an "accredited
investor" as defined in Rule 501 of the regulations promulgated under the
Securities Act of 1933.
(c) (i) Each of the Stockholders of the Contributor understands that
an investment in American Spectrum or the Operating Partnership involves
substantial risks.
(ii) Each of the Stockholders of the Contributor has been given
the opportunity to make a thorough investigation of the proposed activities of
American Spectrum and the Operating Partnership.
(iii) Each of the Stockholders of the Contributor has had an
opportunity to ask questions of and receive answers from representatives of
American Spectrum or the Operating Partnership concerning American Spectrum and
the Operating Partnership and their proposed activities and the terms and
conditions of an investment in American Spectrum Common Shares or Operating
Partnership.
(d) (i) The American Spectrum Common Shares or Operation Partnership
Units to be issued to the Stockholders of the Contributor at the Closing will
be acquired by each Stockholder for its own account for investment only and not
with a view to, or with any intention of, a distribution or resale thereof, in
whole or in part, or the grant of any participation therein.
(e) The Contributor acknowledges that
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(A) the American Spectrum Shares or Operating Partnership
Units to be issued at the Closing have not been registered under the Securities
Act of 1933 or state securities laws by reason of a specific exemption or
exemptions from registration under the Securities Act of 1933 and applicable
state securities laws and, if such American Spectrum Common Shares or Operating
Partnership Units are represented by certificate, such certificates will bear a
legend to such effect,
(B) American Spectrum and the Operating Partnership's
reliance on such exemptions is predicated in part on the accuracy and
completeness of the representations and warranties contained herein,
(C) the American Spectrum Common Shares or Operating
Partnership Units to be issued at the Closing may not be resold or otherwise
distributed unless registered under the Securities Act of 1933 and applicable
state securities laws, or unless an exemption from registration is available,
(D) there is no public market for such American Spectrum
Common Shares or Operating Partnership Units, and
(E) Neither American Spectrum nor the Operating Partnership
has any obligations or intention to register such American Spectrum Common
Shares or Operating Partnership Units under the Securities Act of 1933 or any
state securities laws or to take any action that would make available any
exemption from the registration requirements of such laws, except as provided
in the Registration Rights Agreement (referred to below).
(i) The Contributor hereby acknowledges that because of the
restrictions on the transfer or assignment, each Stockholder may have to bear
the economic risk of the investment commitment evidenced by this Agreement and
any of the American Spectrum Common Shares or Operating Partnership Units
issued hereunder for an indefinite period of time, although, if applicable,
(A) under the terms of the Exchange Rights Agreement,
Operating Partnership Units will, subject to the limitations set forth in the
Exchange Rights Agreement, be exchangeable at the request of the holder thereof
at any time after the first anniversary of their issuance for cash based on
their fair market value or, at the option of American Spectrum, for American
Spectrum Common Shares, and
(B) the holder of any such American Spectrum Common Shares
issued upon exchange of Units will be afforded certain rights to have such
American Spectrum Common Shares registered under the Securities Act of 1933 and
applicable state securities laws pursuant to the Registration Rights Agreement.
ARTICLE VI
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PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing:
6.1 General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions
set forth in Article VII below).
6.2 Notices and Consents. Each of the Parties shall give any notices
to, make any filings with, and use its reasonable best efforts to obtain any
authorizations, consents, and approvals of governments and governmental
agencies in connection with the matters referred to in Sections 8.1 below.
6.3 Execution of Instruments. The Contributor shall cause each of its
Stockholders to execute the Instruments set forth in Section 8.1(g) to (i) and
8.3 (if applicable) below.
6.4 American Spectrum shall execute the documents to be executed by it
pursuant to Section 8.1(g) and (h) below.
ARTICLE VII
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Closing:
7.1 General. In the event that at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of the
requesting Party. The Contributor acknowledges and agrees that from and after
the Closing, American Spectrum or the Operating Partnership will be entitled to
possession of all documents, books, records (including Tax records), agreements
and financial data of any sort relating to the Contributor but will provide the
Stockholders with reasonable access to such documents, books and records upon
request.
7.2 Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Contributor, the other Party will cooperate
with him and his counsel in the contest or defense, make available their
personnel, and provide such testimony and access to their books and records as
shall be necessary in connection with the contest or defense, all at the sole
cost and expense of
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the contesting or defending Party.
7.3 Share Registration. American Spectrum shall use commercially
reasonable efforts to register the American Spectrum Common Shares promptly
following the first anniversary of the consummation of the Merger.
ARTICLE VIII
CONDITIONS TO OBLIGATION TO CLOSE
8.1 Conditions to Each Party's Obligation. The respective obligations
of American Spectrum or the Operating Partnership, the Stockholders and the
Contributor to consummate the transactions contemplated by this Agreement are
subject to the fulfillment at or prior to the Closing Date of each of the
following conditions, which conditions may be waived upon the written consent
of American Spectrum or the Operating Partnership and the Stockholders:
(a) Consents. The Parties shall have obtained all consents of third
parties required in connection with the consummation of the transaction
contemplated hereby.
(b) Governmental Approvals. The Parties shall have received all other
authorizations, consents, and approvals of governments and governmental
agencies required in connection with the consummation of the transaction
contemplated hereby.
(c) No Injunction or Proceedings. There shall not be an unfavorable
injunction, judgment, order, decree, ruling, or charge would, in the reasonable
judgment of American Spectrum, prevent consummation of any of the transactions
contemplated by this Agreement.
(d) No Suspension of Trading, Etc. At the Closing, there shall be no
declaration of a banking moratorium by federal or state authorities or any
suspension of payments by banks in the United States (whether mandatory or not)
or of the extension of credit by lending institutions in the United States, or
commencement of war or other international, armed hostility or national
calamity directly or indirectly involving the United States, which war,
hostility or calamity (or any material acceleration or worsening thereof), in
the sole judgment of American Spectrum, would have a Material Adverse Effect on
the Contributor or, in the sole judgment of the Stockholders, would have a
Material Adverse Effect on American Spectrum.
(e) The Consolidation pursuant to the Prospectus/Consent Solicitation
Statement shall have closed or be closing simultaneously with the Closing.
(f) American Spectrum Common Shares shall have been approved for
listing on notice of issuance on a national securities exchange acceptable to
American Spectrum.
(g) Registration Rights Agreement. A registration rights agreement or
customary terms, pursuant to which American Spectrum agrees to use commercially
reasonable efforts to register the American Spectrum Common Shares issued or
issuable in exchange for Operating Partnership Units shall have been executed
and delivered hereto.
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(h) Exchange Rights Agreement. An exchange rights agreement on
customary terms shall have been entered into by the parties hereto, which shall
permit exchange of the Operating Partnership Units for American Spectrum Common
Shares subject to customary limitations on and after the first anniversary of
the Closing, shall have been executed and delivered.
(i) Investment Representation Letter. Each of the Stockholders of the
Contributor shall execute a customary investment representation letter with
respect to the matters set forth in Section 5.3.
(j) Transfer Tax Returns. The Parties shall deliver any required
transfer tax returns.
(k) "Non-Foreign Person Affidavit". The Parties shall deliver a
"non-foreign person affidavit" as required by Internal Revenue Code Section
1445, substantially in the form attached hereto as Exhibit I.
8.2 Conditions to Obligation of the Contributor. The obligations of
the Contributor to consummate the transactions contemplated hereby and take the
actions to be performed by it in connection with the Closing are subject to
satisfaction of the following additional conditions:
American Spectrum or the Operating Partnership shall have delivered to
the Stockholders the Share Consideration or Limited Partnership Unit
Consideration pursuant to Section 3.1.
8.3 Conditions to Obligation of the Operating Partnership. The
obligations of the Operating Partnership to consummate the transactions
contemplated hereby and take the actions to be performed by it in connection
with the Closing are subject to satisfaction of the following additional
condition:
The Stockholders of the Contributor shall have executed the signature
page of the Agreement of Limited Partnership of the Operating Partnership and
such other documents as shall be necessary for admission as a limited partner
of the Operating Partnership.
ARTICLE IX
TERMINATION
9.1 Termination by Mutual Consent. This Agreement may be terminated
and the Merger may be abandoned, before or after the approval of the
Stockholders of the Contributor or American Spectrum or the Operating
Partnership, respectively, either by the mutual written consent of American
Spectrum or the Operating Partnership and the Contributor or by the mutual
action of the board of directors of American Spectrum or the general partner of
the Operating Partnership, and the Managing General Partner or Managing Member
of the Contributor.
9.2 Termination by Either American Spectrum or the Operating
Partnership or by the Contributor. This Agreement may be terminated and the
Contribution may be abandoned (a) by action of American Spectrum or the
Operating Partnership in the event of a failure of a condition
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to the obligations of American Spectrum and the Operating Partnership set forth
in Section 7.1 of this Agreement; (b) by the Managing General Partner or the
vote of a majority in interest of the Stockholders of the Contributor in the
event of a failure of a condition to the obligations of the Contributor set
forth in Section 7.1 or 7.2 of this Agreement; or (c) if a United States or
federal or state court of competent jurisdiction or United States federal or
state governmental agency shall have issued an order, decree or ruling or taken
any other action permanently restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and non-appealable; provided, in the
case of a termination pursuant to clause (a) or (b) above, that the terminating
party shall not have breached in any material respect its obligations under
this Agreement in any manner that shall have proximately contributed to the
occurrence of the failure referred to in said clause.
9.3 Effect of Termination and Abandonment. In the event of termination
of this Agreement and abandonment of the Contribution pursuant to this Article
IX, no Party hereto (or any of its directors, officers, Managing General
Partners, Managing Members, Limited Stockholders) shall have any liability or
further obligation to any other Party to this Agreement, except that nothing
herein will relieve any Party from liability for any breach of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
10.2 Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes
any prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
10.3 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of American Spectrum or the Operating Partnership and the
Stockholders; provided, however, that American Spectrum or the Operating
Partnership may (i) assign any or all of its rights and interests hereunder to
one or more of its Affiliates and (ii) designate one or more of its Affiliates
to perform its obligations hereunder (in any or all of which cases American
Spectrum or the Operating Partnership nonetheless shall remain responsible for
the performance of all of its obligations hereunder).
10.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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10.5 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.6 Notices. All notices, requests, demands, claim, or other
communication hereunder shall be deemed duly given, as of the date two business
days after mailing, if it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to the Contributor:
Xxxxxxx X. Xxxxxx
Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
With copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
If to American Spectrum:
Xxxxxxx X. Xxxxxx
Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
With copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
If to the Operating Partnership:
American Spectrum Operating Partnership, L.P.
c/o Xxxxxxx X. Xxxxxx
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Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
With copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
10.7 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Maryland without giving effect to any
choice or conflict of law provision or rules (whether of the State of Maryland
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Maryland.
10.8 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
American Spectrum and the Contributor. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
10.9 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.10 Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby, except to the extent set forth in the
Prospectus/Consent Solicitation Statement.
10.11 Construction. The Parties have participated jointly in the
negotiation and drafting
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of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. The Parties intend that each
representation, warrant, and covenant contained herein in any respect, the fact
that there exists another representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the Party has not breached shall not
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty or covenant.
10.12 Specific Performance. Each of the Parties acknowledges that the
other Party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in Section 10.13 below), in
addition to any other remedy to which they may be entitled, at law or in
equity.
10.13 Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in the State of California,
in any action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court.
10.14 Further Assurances; Further Actions. Each of the parties shall,
without further consideration, take such action and execute and deliver such
documents as may be necessary to carry out this agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
AMERICAN SPECTRUM REALTY, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------------------------------
Name XXXXX X. XXXXXXX
Title
NO.-SO., INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------------
Name XXXXXXX X. XXXXXX
Title
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