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Exhibit 10.31
CONTRIBUTION AGREEMENT (STOCK)
TO AMERICAN SPECTRUM
This Agreement and Plan of Contribution (this "Agreement") is entered
into as of this 31st day of May, 2000, by and between American Spectrum Realty,
Inc., a Maryland corporation (the "Company" or "American Spectrum") and American
Spectrum Real Estate Services, Inc. (collectively the "Contributor").
RECITALS:
WHEREAS, American Spectrum 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 Contributor desires to contribute to American Spectrum,
and American Spectrum desires to acquire, as a result of this contribution, all
of Contributor's right, title and interest in and to the capital stock of
American Spectrum Management Company, Inc. (the "Management Company") in
exchange for American Spectrum Shares; 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 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:
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.
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"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.
"Management Company" has the meaning as set forth in the second
"Whereas" clause.
"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" means American Spectrum Realty Operating
Partnership, L.P., a Delaware limited 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.
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"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.
"Shares" has the meaning set forth in Section 2.1.
"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
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,
all of Contributor's right, title and interest in and to all of the then
outstanding capital stock of the Management Company (the "Shares").
2.2 (a) 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.
(b) At the Closing, Contributor shall deliver to the Company
stock certificates representing all of the Shares (the "Certificates"),
accompanied by stock powers duly endorsed in blank for transfer.
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ARTICLE III
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") 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 to be received by 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 pursuant to this Agreement.
ARTICLE IV
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:
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
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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 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
and the Management Company are 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 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
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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,
(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 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 concerning American Spectrum and their proposed activities and
the terms and conditions of an investment in American Spectrum Common Shares.
(d) The American Spectrum Common Shares 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
(A) the American Spectrum Shares 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 are represented by
certificate, such certificates will bear a legend to such effect,
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(B) American Spectrum'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 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, and
(E) American Spectrum does not have any obligations
or intention to register such American Spectrum Common Shares 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).
(F) 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 issued hereunder for an
indefinite period of time.
ARTICLE VI
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 execute all
instruments necessary to effect the transfer and the Instruments set forth in
Section 8.1(g) to (i).
6.4 American Spectrum shall execute the documents to be executed by it
pursuant to Section 8.1(g) and (h) below.
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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 Contributor
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 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.
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(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.
(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 shall have delivered to the Stockholders the Share
Consideration pursuant to Section 3.1.
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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 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
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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.
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:
c/o 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
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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 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
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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: ________________________________________
Name
Title
AMERICAN SPECTRUM REAL ESTATE SERVICES, INC.
By: ________________________________________
Name
Title
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