EXHIBIT 2
PUT AND CALL AGREEMENT
THIS PUT AND CALL AGREEMENT (the "AGREEMENT") is made as of the 4th day of
October, 2001, by and between the entities and individuals set forth in EXHIBIT
A (the "XXXXXXX GROUP"), and the entities and individuals set forth on EXHIBIT B
hereto (the "XXXXX GROUP").
RECITALS:
X. XXXXXXX GROUP wishes to grant a put to XXXXX GROUP whereby XXXXXXX GROUP
would be obligated to purchase up to 400,000 shares of common stock, par value
$.01 per share, of American Spectrum Realty, Inc. (the "AQQ Shares") from XXXXX
GROUP, under the terms and conditions of this Agreement.
X. XXXXX GROUP wishes to grant a call to XXXXXXX GROUP whereby XXXXX GROUP
would be obligated to sell up to 400,000 AQQ Shares to XXXXXXX GROUP, under the
terms and conditions of this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the warranties and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, XXXXXXX GROUP and XXXXX GROUP agree as follows:
1. THE PUT. XXXXXXX GROUP hereby grants to XXXXX GROUP the option (the
"PUT") to sell to XXXXXXX GROUP 400,000 AQQ shares, or any part thereof, at a
price of $13.50 per share on the first anniversary of the beginning of trading
of the AQQ Shares (the "EXERCISE DATE").
2. THE CALL. XXXXX GROUP hereby grants to XXXXXXX GROUP the option (the
"CALL") to purchase from XXXXX GROUP 400,000 AQQ Shares, or any part thereof, at
a price of $16.50 per share on the Exercise Date.
3. COSTS AND EXPENSES. Each party shall be responsible for their own costs
and expenses. Any transfer fees shall be borne by the XXXXX GROUP.
4. EXERCISE OF THE PUT. XXXXX GROUP may exercise the Put by giving written
notice thereof to XXXXXXX GROUP, within three business days of the Exercise
Date, in writing (the "NOTICE OF EXERCISE OF PUT"). Within three business days'
of receipt of the Notice of Exercise of Put, XXXXXXX GROUP shall deliver to
XXXXX GROUP in good funds the full exercise price for the shares exercised under
the Put and within three days after receipt of such funds XXXXX GROUP will
deliver to XXXXXXX GROUP the AQQ Shares, duly endorsed for transfer with all
necessary documentary and transfer stamps attached thereto. XXXXX GROUP
represents and warrants that the AQQ Shares so transferred will be transferred
to XXXXXXX GROUP with good and marketable title.
5. EXERCISE OF THE CALL. XXXXXXX GROUP may exercise the Call by giving
written notice thereof to XXXXX GROUP, within three business days of the
Exercise Date, together with good funds in the full amount of the exercise price
for the shares exercised under the Call (the "NOTICE OF EXERCISE OF CALL").
Within three business days' of receipt of the Notice of Exercise of Call, XXXXX
GROUP shall deliver to XXXXXXX GROUP the number of AQQ Shares as are exercised
under the Call, duly endorsed for transfer with all necessary documentary and
transfer stamps attached thereto. XXXXX GROUP represents and warrants that the
AQQ Shares so transferred will be transferred to XXXXXXX GROUP with good and
marketable title.
6. ANTI-DILUTION PROVISIONS. If, subsequent to the date of this Agreement,
but prior to the Exercise Date, American Spectrum Realty, Inc. ("AQQ") shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the AQQ Shares into the same or a different number of securities of any
class or classes, the number and type of shares that are the subject of the Put
and of the Call shall thereafter be converted into the kind and number of shares
or other securities or property of AQQ, or the adjusted purchase price, to which
the holder would have been entitled if immediately prior to such change the
holder had exercised the Put or Call on the AQQ Shares.
7. LIST OF XXXXX GROUP OWNERSHIP. EXHIBIT C lists all units in the Sierra
and Xxxxxx Partnerships owned by the XXXXX GROUP. No affiliate of the XXXXX
GROUP (other than an entity included in the XXXXX GROUP) owns any units in any
of the Sierra and Xxxxxx Partnerships. For purposes hereof (i) "Sierra and
Xxxxxx Partnerships" means Xxxxxx Income Fund Ltd., L.P., Xxxxxx Income Fund
Ltd. II L.P., Xxxxxx Real Property Investors-Two L.P., Sierra Pacific
Development Fund, SPDF-II, Sierra Pacific Development Fund III, Sierra Pacific
Institutional Properties V and Sierra Pension Investors '84 and (ii) "affiliate"
shall have the same meaning as Rule 405 under the Securities Act of 1933, as
amended.
8. STANDSTILL. Subject to XXXXXXX GROUP not being in default of any
material provision of this Agreement and subject to the roll-up being completed,
XXXXX GROUP agrees that prior to the second anniversary of the date of this
Agreement, neither it nor any person who is its Affiliate as that term is
defined under Rule 405 of the Securities Act of 1933, as amended, will, without
the prior written consent of the general partner of any of the Sierra and Xxxxxx
Partnerships, as defined above, or the Chief Executive Officer of American
Spectrum Realty, Inc. ("American Spectrum"), which consent may be withheld for
any reason, directly or indirectly, (i) seek or propose to enter into, directly
or indirectly, any merger, consolidation, business combination, sale or
acquisition of assets, liquidation, dissolution or other similar transaction
involving any of the Sierra and Xxxxxx Partnerships or American Spectrum, (ii)
make, or in any way participate in, directly or indirectly, any "solicitation"
of "proxies" or "consents" (as such terms are used in the proxy rules of the
Securities and Exchange Commission) to vote any voting securities of any of the
Sierra and Xxxxxx Partnerships or American Spectrum or otherwise communicate
with any limited partners of the Sierra and Xxxxxx Partnerships or the
shareholders of American Spectrum with respect to any proposal being submitted
to them for their vote or consent, (iii) disclose in writing to any third party
any intention, plan or arrangement inconsistent with these terms, unless
required by law or regulation, or (iv) loan money to, advise (other than to
dissuade), assist or encourage any person in connection with any action
inconsistent with these terms.
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9. INSTRUCTIONS ON BEHALF OF XXXXX GROUP; POWER AND AUTHORITY. All
instructions, notices and deliveries pursuant to this Agreement to XXXXXXX GROUP
or to any third parties on behalf of the XXXXX GROUP, and all payments, notices
and deliveries pursuant to this Agreement by XXXXXXX GROUP to XXXXX GROUP shall
be made by, and only by, Xxxxx Xxxxx or his assignee. Should Xxxxx Xxxxx be
incapable of giving such instructions, notices or deliveries or of accepting
such payments, notices and deliveries, than ________________ shall be authorized
to give instructions pursuant to this Agreement on behalf of the XXXXX GROUP.
Xxxxx Xxxxx warrants and represents that he has the power and authority of
execute this Agreement on behalf of XXXXX GROUP.
10. INSTRUCTIONS ON BEHALF OF XXXXXXX GROUP; POWER AND AUTHORITY. All
instructions, notices and deliveries pursuant to this Agreement to XXXXX GROUP
or to any third parties on behalf of the XXXXXXX GROUP, and all payments,
notices and deliveries pursuant to this Agreement by XXXXX GROUP to XXXXXXX
GROUP shall be made by, and only by, Xxxx X. Xxxxxxx or his assignee. Should
Xxxx X. Xxxxxxx be incapable of giving such instructions, notices or deliveries
or of accepting such payments, notices and deliveries, than ________________
shall be authorized to give instructions pursuant to this Agreement on behalf of
the XXXXXXX GROUP. Xxxx X. Xxxxxxx warrants and represents that he has the power
and authority to execute this Agreement on behalf of XXXXXXX GROUP.
11. PRO-RATION OF DIVIDENDS AND OTHER DISTRIBUTIONS. All dividends or other
distributions on any AQQ Shares that are the subject of an exercise under the
Put or the Call shall be prorated between XXXXX GROUP and XXXXXXX GROUP in
proportion to the number of days that such AQQ Shares were held by each party
during the quarter which contains the Exercise Date.
12. TRADING IN AQQ SHARES. Nothing in this Agreement shall be construed as
preventing either XXXXXXX GROUP of XXXXX GROUP from trading in AQQ Shares during
or after the term of this Agreement.
13. RIGHTS OF THE XXXXXXX GROUP. Nothing in this Agreement shall be
interpreted as granting any rights of ownership, including but not limited to
the right to vote the AQQ Shares or the right to receive dividends or
distributions on the AQQ Share, to XXXXXXX GROUP prior to his exercising the
Call and paying the full exercise price to XXXXX GROUP.
14. MISCELLANEOUS. This Agreement shall be governed by the laws of the
State of Arizona without regard to any conflict of law provisions contained
therein. This Agreement shall not be amended, altered or otherwise modified
except in writing signed by the parties. This Agreement constitutes the complete
and exclusive statement of its terms, and all prior negotiations,
representations, statements or promises relating to the topics covered herein
which are at variance with the terms hereof have been superseded by this final
expression of the agreement of the parties.
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IN WITNESS WHEREOF, the parties have executed this Put and Call Agreement
as of the day and year first set forth above.
XXXXXXX GROUP: XXXXX GROUP:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx Xxxxx
--------------------------------- ---------------------------------
Xxxx X. Xxxxxxx Xxxxx Xxxxx,
Authorized Representative
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
CGS REAL ESTATE COMPANY, Inc.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Its: President
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EXHIBIT A
THE XXXXXXX GROUP
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
CGS Real Estate Company, Inc., a Texas corporation
Exhibit A-1
EXHIBIT B
THE XXXXX GROUP
TOTAL
SHARES
------
Prizm Investment 21,047
Xxxxx Xxxxx CPA MPPP 3,697
Baseline Investment 33,866
Xxxxxxx Venture 6,894
Deuce Investment 73,275
Xxx Xxxxxx 137,593
IG Holdings 7,578
Hintzin Capital Group 10,198
Paradise Wire PP 23,731
Sunshine Wire PP 6,874
Xxxxx Xxxxxx 8,304
Hereford / Xxxxx Xxxx / Bridle 23,479
XxxXxxxxx Xxxxxxxxx 53,122
Xxxxx Xxxxx 31,970
--------
Total Shares 441,628
Exhibit B-1
