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Exhibit 10.35
CONTRIBUTION AGREEMENT
This Contribution Agreement (this "Agreement") is entered into as of
this 31st day of May, 2001, by and between American Spectrum Management Company,
Inc. (the "Company" or "American Spectrum"), and CGS Real Estate Company, Inc.,
American Spectrum-Midwest, American Spectrum-Arizona,
American-Spectrum-California and American Spectrum-Texas, Inc. (collectively the
"Contributor").
RECITALS:
WHEREAS, the Contributor desires to contribute to American Spectrum,
and American Spectrum or desires to acquire, as a result of this contribution,
all of Contributor's right, title and interest in and to the subject properties
and assets more particularly described in Section 2.1 hereto in exchange for
American Spectrum Shares or Operating Partnership Units; 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:
"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.
"Bylaws" means the bylaws of American Spectrum.
"Company" has the meaning set forth in the Preface above.
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"Contribution" has the meaning set forth in the Preface above.
"Contributor" has the meaning set forth in the Preface above.
"Effective Date" means the date of the closing of the consolidation
pursuant to the Company's Registration Statement on Form S-4.
"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.
"Share Consideration" has the meaning set forth in Section 3.1.
ARTICLE II
CONTRIBUTION OF ASSETS
2.1 Contribution and Assignment. Effective on the Effective Date,
Contributor hereby contributes to American Spectrum and American Spectrum hereby
agrees to acquire from Contributor, as a result of this contribution to capital,
(a) the personal property, furniture, fixtures, and equipment
used in and necessary for the CGS Management Company business including those
listed on Schedule 2.1A hereto;
(b) the contracts, leases, commitments and agreements listed
on Schedule 2.1B hereto;
(c) the cash and accounts receivables included on pro forma
balance sheet of the CGS Management Company at March 11, 2001, as the same may
have increased or decreased in the ordinary course of business subsequent to
March 31, 2001;
(d) all other claims and rights of every kind associated with
the business being transferred (the "Business");
(e) the right to employ the employees designated as employees
of the CGS Management Company, each of which shall become an employee of the
Company on the Effective Date;
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(f) all proprietary rights and licenses of the Contributor
relating to or arising out of the Business, including the right to use "American
Spectrum" in connection with the Business; and
(g) all books and records, computers and computer software
(including documentation and related object and source codes), correspondence,
employment records and files of or relating to the Business
2.2 Assumption of Liabilities.
(a) Assumption Effective on the Effective Date, the Company
hereby assumes and agrees to become liable for:
(i) All liabilities and obligations of the
Contributor which are reflected in the pro forma balance sheet of the CGS
Management Company at March 31, 2001;
(ii) All accounts payable arising since the pro forma
balance sheet at March 31, 2001 incurred in the ordinary course of business,
consistent with past practice and consistent in type and scope to those
reflected in such balance sheet; and
(iii) All liabilities and obligations of the
Contributor under the contracts, leases, agreements and commitments listed in
Schedule 2.1B.
The liabilities referred to in Section 2.2 are collectively referred to
as the "Assumed Liabilities".
Assumption by the Company of the Assumed Liabilities shall in no way
expand the rights or remedies of third parties against the Company as compared
to the rights or remedies which such parties would have against Contributor had
this Agreement not been consummated. Except as specifically set forth in this
Section 2.2, the Company does not assume or agree to pay, perform or discharge
any other obligations or liabilities of the Contributor, whether or not related
to the Assets.
(b) Assumption Agreement; Effect. Assumption by the Company of
the Assumed Liabilities shall in no way expand the rights or remedies of third
parties against the Company as compared to the rights or remedies which such
parties would have against the Contributor had this Agreement not been
consummated. Except as specifically set forth in Section 2.2(a), the Company
does not assume or agree to pay, perform or discharge any other obligations or
liabilities of the Contributor, whether or not related to the Business. Without
limiting the foregoing, in no event shall Buyer be liable for, assume, perform
or discharge the following: (w) any liabilities arising from breaches of any
contracts or agreements of the Contributor or violations of any permits,
licenses or approvals granted to the Contributor by a governmental body; (x) any
liabilities arising from any claims, actions, suits, proceedings or
investigations existing prior to the Effective Date or arising out of events
occurring prior to the Closing against the Contributor or any affiliate of the
Contributor, at law or in equity or before or by any federal, state, municipal,
local, or foreign government or other governmental body; (y) any federal, state
or local income tax or withholding or other taxes payable
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by the Contributor including, without limitation, any federal, state or local
income taxes imposed or levied on, or otherwise assessed against the
Contributor, incident to or arising out of the transactions contemplated by this
Agreement; or (z) any liabilities arising under ERISA.
ARTICLE III
CONSIDERATION
(a) The Contributor will be issued the number of American
Spectrum Common Shares determined in accordance with the final prospectus
included in the Company's Registration Statement on Form S-4 (the "Share
Consideration").
ARTICLE IV
COVENANTS
The Parties agree as follows:
4.1 General. In the event that at any time after the Effective Date 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 Effective
Date, American Spectrum will be entitled to possession of all documents, books,
records (including Tax records), agreements and financial data of any sort
relating to the Business but will provide the Contributor with reasonable access
to such documents, books and records upon request.
4.2 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 Effective 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.
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ARTICLE V
MISCELLANEOUS
5.1 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.
5.2 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.
5.3 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).
5.4 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.
5.5 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.
5.6 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
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If to American Spectrum:
c/o Xxxxxxx X. Xxxxxx
Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
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.
5.7 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California without giving effect to any
choice or conflict of law provision or rules (whether of the State of California
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
5.8 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.
5.9 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.
5.10 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.
5.11 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 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
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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.
5.12 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.
5.13 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.
5.14 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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
AMERICAN SPECTRUM MANAGEMENT
COMPANY, INC.
By: _________________________________
Name
Title
_________________________________, INC.
By: _________________________________
Name
Title
CGS REAL ESTATE COMPANY, INC.
By: _________________________________
Name
Title
AMERICAN SPECTRUM-MIDWEST
By: _________________________________
Name
Title
AMERICAN SPECTRUM-ARIZONA
By: _________________________________
Name
Title
AMERICAN SPECTRUM-CALIFORNIA
By: _________________________________
Name
Title
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AMERICAN SPECTRUM-TEXAS
By: _________________________________
Name
Title
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SCHEDULE 2.1A
MANAGEMENT PROPERTY PROPERTY
ASSETS /OVERHEAD ACCOUNTING MANAGEMENT TOTAL
------ --------- ---------- ---------- -----
FURNITURE & EQUIPMENT
LOCATED AT ONE MEMORIAL DRIVE,
ST. LOUIS, MISSOURI
MRI - accounting software 0
Computers - PC 4 5 1 10
Network Servers - computers 0
Computer Printers 1 2 3
File Cabinets (5 drawer lateral) 3 7 3 13
File Cabinets (2-3 drawer lateral) 8 1 9
File Cabinets (4-5 drawer vertical) 3 6 1 10
Office Desks 5 5 1 11
Bookshelf 6 5 11
Chairs 11 13 1 25
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SCHEDULE 2.1B
OFFICE LEASE AT XXX XXXXXXXX XXXXX, XX. XXXXX, XXXXXXXX
The following equipment leases and contracts shared with CBCA5:
Lease with PBCC in the amount of $1,000.66 per month
Lease with Pitney Xxxxx in the amount of $177.70 per month
Lease with Inter-Tel in the amount of $630.64 per month
Maintenance contract with Pitney Xxxxx in the amount of $187 per month
Service agreement with Southwestern Xxxx in the amount of $750 per month
Property management agreement with each of the following entities:
Pacific Spectrum LLC
No-So, Inc., with respect to Beach & Xxxxxxx Pad D
CGS Properties Inc. with respect to Market Place and Columbia Northeast
Third Coast LLC
Back Bay LLC
Seventy-Seven LLC
Creekside / Riverside LLC
Villa Redondo LLC
Sierra Mira Mesa, Sierra Sorrento I, Siera Sorrento II, Sierra Creekside and
Sierra Valencia with respect to five properties
XxXxxxxxx Associates LLC
American Spectrum Realty Properties, Inc.
Nooney Rider Trail LLC
Xxxxxx-Xxxxxxxxx Associates, X.X.
Xxxxxx Funds, with respect to 10 properties
Third Coast LLC
Pasadena Autumn Ridge LLC
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