# **Exhibit 10.34**

 

 

**REGISTRATION RIGHTS AGREEMENT**

 

**THIS REGISTRATION RIGHTS AGREEMENT (this “*Agreement*”) is made and entered into as ofOctober 15, 2001 by and among American Spectrum Realty, Inc., a Marylandcorporation, which operates as a real estate investment trust (the “*Company*”), American Spectrum RealtyOperating Partnership, L.P., a Delaware limited partnership (the “*Operating Partnership*”), and the otherparties which are signatories hereto (together with their respectivesuccessors, transferees and assigns, each a “*Holder*”and collectively the “*Holders*”).**

 

**WHEREAS, on the date hereof, that Holder will receive unitsof limited partnership interest in the Operating Partnership (such units oflimited partnership interest being referred to hereinafter as the “*OP Units*”).**

 

**WHEREAS, the Company, the Operating Partnership and theHolder are parties to an Exchange Rights Agreement which provides the Holder,among other things, with the right to demand that the Operating Partnershipredeem their OP Units for cash and, at the option of the Company, the Companymay satisfy that redemption request on behalf of the Operating Partnershipthrough the issuance of the Company’s Common Stock, par value $0.01 per share;and**

 

**WHEREAS, in order to induce the Holder to consummate theclosings contemplated under the Agreement, the Company has agreed to grant tothe Holder the registration rights set forth in Section 2 hereof.**

 

**NOW, THEREFORE, the parties hereto, in consideration of theforegoing, the mutual covenants and agreements hereinafter set forth, and othergood and valuable consideration, the receipt and sufficiency of which herebyare acknowledged, hereby agree as follows:**

 

1.               Definitions.

 

As used in this Agreement,the following capitalized defined terms shall have the following meanings:

 

“***Common Stock***” shallmean shares of common stock, par value $0.01 per share, of the Company.

 

“***Company***” shall havethe meaning set forth in the Preamble and also shall include the Company’ssuccessors.

 

“***Exchange Act***” shallmean the Securities Exchange Act of 1934, as amended from time to time.

 

 

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“***Exchange Rights Agreement***”shall mean the Exchange Rights Agreement, dated the date hereof, among theCompany, the Operating Partnership and the other parties thereto.

 

“***Exchange Stock***” shallmean any Common Stock issued or to be issued to the Holder upon the exchange ofits OP Units pursuant to the Exchange Rights Agreement.

 

“***Holder***” or “***Holders***” shall havethe meaning set forth in the Preamble.

 

“***NASD***” shall mean theNational Association of Securities Dealers, Inc.

 

“***OP Units***” shall havethe meaning set forth in the Preamble.

 

“***Operating Partnership***”shall have the meaning set forth in the Preamble and also shall include theOperating Partnership’s successors.

 

“***Person***” shall mean anindividual, partnership, corporation, limited liability company, trust, estate,or unincorporated organization, or other entity, or a government or agency orpolitical subdivision thereof.

 

“***Prospectus***” shallmean the prospectus included in a Registration Statement, including anypreliminary prospectus, and any such prospectus as amended or supplemented byany prospectus supplement with respect to the terms of the offering of anyportion of the Registrable Securities covered by a Shelf Registration Statement,and by all other amendments and supplements to such prospectus, includingpost-effective amendments, and in each case including all material incorporatedby reference therein.

 

“***Registrable Securities***”shall mean the Exchange Stock, excluding

 

(i)Exchange Stock for which a Registration Statement relating to the sale thereofshall have become effective under the Securities Act and which have beendisposed of under such Registration Statement or

 

(ii)Exchange Stock sold or eligible for sale pursuant to Rule 144(k).

 

“***Registration Expenses***”shall mean any and all expenses incident to performance of or compliance withthis Agreement, including, without limitation:

 

(i)all SEC, stock exchange or NASD registration and filing fees;

 

(ii)all fees and expenses incurred in connection with compliance with statesecurities or “blue sky” laws (including reasonable fees and disbursements ofcounsel in connection with “blue sky” qualification of any of the RegistrableSecurities and the preparation of a Blue Sky Memorandum) and compliance withthe rules of the NASD;

 

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(iii)all expenses of any Persons in preparing or assisting in preparing, wordprocessing, printing and distributing any Registration Statement, any Prospectus,certificates and other documents relating to the performance of and compliancewith this Agreement;

 

(iv)all fees and expenses incurred in connection with the listing, if any, of anyof the Registrable Securities on any securities exchange or exchanges pursuantto Article III, Section (xii) hereof; and

 

(v)the fees and disbursements of counsel for the Company and of the independentpublic accountants of the Company, including the expenses of any special auditsor “cold comfort” letters required by or incident to such performance andcompliance.

 

Registration Expenses shall specificallyexclude underwriting discounts and commissions, the fees and disbursements ofcounsel representing a selling Holder, and transfer taxes, if any, relating tothe sale or disposition of Registrable Securities by a selling Holder, all ofwhich shall be borne by such Holder in all cases.

 

“***Registration Statement***”or “***Shelf RegistrationStatement***” shall mean a “shelf” registration statement of theCompany and any other Person required to be a registrant with respect to suchshelf registration statement pursuant to the requirements of the Securities Actwhich covers the issuance or resale of the Registrable Securities on Form S-3or otherwise under Rule 415 promulgated under the Securities Act, or anysimilar rule that may be adopted by the SEC, and all amendments and supplementsto such registration statement, including post-effective amendments, in eachcase including the Prospectus contained therein, all exhibits thereto and allmaterials incorporated by reference therein.

 

“***Rule 144***” shall meanRule 144 promulgated under the Securities Act, as amended from time to time,and any successor rule or regulation under the Securities Act.

 

“***SEC***” shall mean theSecurities and Exchange Commission.

 

“***Securities Act***” shallmean the Securities Act of 1933, as amended from time to time, and anysuccessor Act.

 

“***Shelf Registration***”shall mean a registration required to be effected pursuant to Section 2 hereof.

 

2.                               ShelfRegistration Under the Securities Act.

 

a.                               Filingof Shelf Registration Statement.

 

(i)Within 15 days after the first anniversary date of the date of the closing ofthe consolidation pursuant to the Registration Statement on Form S-4 initialpublic offering, the Company shall cause to be filed a Shelf Registration 

 

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Statement providing for thesale by the Holder of the Registrable Securities and will use commerciallyreasonable efforts to cause such Shelf Registration Statement to be declaredeffective by the SEC as soon as practicable.

 

(ii)The Company agrees to use commercially reasonable efforts to keep the ShelfRegistration Statement continuously effective for a period expiring on the dateon which all of the Registrable Securities covered by the Shelf RegistrationStatement have been sold pursuant to the Shelf Registration Statement or havebecome eligible for sale pursuant to Rule 144(k) and, subject to Article IIIhereof, further agrees to supplement or amend the Shelf Registration Statement,if and as required by the rules, regulations or instructions applicable to theregistration form used by the Company for such Shelf Registration Statement orby the Securities Act or by any other rules and regulations thereunder forshelf registration; *provided, however*,that the Company shall not be deemed to have used commercially  reasonable efforts to keep a RegistrationStatement effective during the applicable period if it voluntarily takes anyaction that would result in selling Holder covered thereby not being able tosell such Registrable Securities during that period, unless such action isrequired under applicable law or the Company has filed a post-effectiveamendment to the Registration Statement and the SEC has not declared iteffective.

 

(iii)Notwithstanding the foregoing, the Company shall not be required to file aRegistration Statement or to keep a Registration Statement effective if thenegotiation or consummation of a transaction is pending or an event hasoccurred, which negotiation, consummation or event would require additionaldisclosure by the Company in the Registration Statement of material informationwhich the Company has a *bona**fide* business purpose for keepingconfidential and the nondisclosure of which in the Registration Statement mightcause the Registration Statement to fail to comply with applicable disclosurerequirements; *provided, however*,that the Company may not delay, suspend or withdraw a Registration Statementfor such reason for more than 60 days or more often than four times during anyperiod of 12 consecutive months.

 

(iv)The Company is not required to file a separate Registration Statement, but mayfile one Registration Statement covering the Registrable Securities held bymore than one Holder.

 

b.                              Expenses.

 

(i)The Company shall pay all Registration Expenses in connection with anyregistration pursuant to Article II.

 

(ii)Each Holder shall pay all underwriting discounts, if any, sales commissions,the fees and disbursements of counsel representing such Holder and transfertaxes, if any, relating to the sale or disposition of such Holder’s RegistrableSecurities pursuant to the Shelf Registration Statement or Rule 144.

 

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c.                               Inclusionin Shelf Registration Statement. Any Holder that does not, within 10 days after receipt of a reasonablerequest by the Company for information in connection with the ShelfRegistration Statement, provide such information to the Company, shall not beentitled to have its Registrable Securities included in the Shelf RegistrationStatement.

 

d.                              Effectof Material Breach.  In the eventthat the Company shall breach any of its material obligations hereunder in anymaterial respect, any Holder of Registrable Securities may demand that theCompany file a registration statement covering such Holder’s RegistrableSecurities.  The Company agrees to filesuch registration statement within 60 days after receipt of such demand andagrees to use its best efforts to procure the effectiveness of suchregistration statement within 60 days after filing.

 

3.                     Registration Procedures. (a) In connection with the obligationsof the Company with respect to the Registration Statement required to be filedpursuant to Article 2 hereof, the Company shall, to the extent applicable:

 

(i) Prepare and file with the SEC, within the time period set forth inSection 2 hereof, a Shelf Registration Statement, which Shelf RegistrationStatement

 

(A) shall be available for the sale of the Registrable Securities inaccordance with the intended method or methods of distribution by the sellingHolder thereof, and

 

(B) shall comply as to form in all material respects with therequirements of the applicable form of registration statement and include allfinancial statements required by the SEC to be filed therewith.

 

(ii) (A) Subject to Article III, Section (a)(ii)(B),

 

(I) prepare and file with the SEC such amendments and post-­effectiveamendments to each such Registration Statement as may be necessary to keep suchRegistration Statement effective for the applicable period;

 

(II) cause each such Prospectus to be supplemented by any requiredprospectus supplement, and as so supplemented to be filed pursuant to Rule 424or any similar rule that may be adopted under the Securities Act;

 

(III) respond as promptly as practicable to any comments received fromthe SEC with respect to the Shelf Registration Statement, or any amendment,post-effective amendment or supplement relating thereto; and

 

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(IV) comply with the provisions of the Securities Act with respect tothe disposition of all securities covered by each Registration Statement duringthe applicable period in accordance with the intended method or methods ofdistribution by the selling Holder thereof.

 

(B)           (I) Each Holdershall promptly provide to the Company such information as the Companyreasonably requests in order to identify such Holder and the method ofdistribution in a post-effective amendment to the Registration Statement or asupplement to the Prospectus.

 

(II) Such Holder also shall notify the Company in writing uponcompletion of any offer or sale or at such time as such Holder no longerintends to make offers or sales under the Registration Statement.

 

(iii) Furnish to each Holder of Registrable Securities, without charge,as many copies of each Prospectus, including each preliminary Prospectus, andany amendment or supplement thereto and such other documents as such Holder mayreasonably request, in order to facilitate the public sale or other dispositionof the Registrable Securities; the Company consents to the use of theProspectus, including each preliminary Prospectus, by each such Holder ofRegistrable Securities in connection with the offering and sale of theRegistrable Securities covered by the Prospectus or the preliminary Prospectus.

 

(iv) Use its reasonable efforts to register or qualify the RegistrableSecurities by the time the applicable Registration Statement is declaredeffective by the SEC under all applicable state securities or “blue sky” lawsof such jurisdictions as any Holder of Registrable Securities covered by aRegistration Statement shall reasonably request in writing, keep each suchregistration or qualification effective during the period such RegistrationStatement is required to be kept effective, and do any and all other acts andthings which may be reasonably necessary or advisable to enable such Holder toconsummate the disposition in each such jurisdiction of such RegistrableSecurities owned by such Holder; *provided,however*, that the Company shall not be required to

 

(A) qualify generally to do business in any jurisdiction or to registeras a broker or dealer in such jurisdiction where it would not otherwise berequired to qualify but for this Article III, Section (a)(iv),

 

(B) subject itself to taxation in any such jurisdiction, or

 

(C) submit to the general service of process in any such jurisdiction.

 

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(v) Notify each Holder of Registrable Securities promptly and, ifrequested by such Holder, confirm such notification in writing

 

(A) when a Registration Statement has become effective and when anypost-effective amendments and supplements thereto become effective,

 

(B) of the issuance by the SEC or any state securities authority of anystop order suspending the effectiveness of a Registration Statement or theinitiation of any proceedings for that purpose,

 

(C) if the Company receives any notification with respect to thesuspension of the qualification of the Registrable Securities for sale in anyjurisdiction or the initiation of any proceeding for such purpose, and

 

(D) of the happening of any event during the period a RegistrationStatement is effective which is of a type specified in Article II, Section2.1(iii) hereof or as a result of which such Registration Statement or therelated Prospectus contains any untrue statement of a material fact or omits tostate any material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances under which they were made(in the case of the Prospectus), not misleading.

 

(vi) Make every reasonable effort to obtain the withdrawal of any ordersuspending the effectiveness of a Registration Statement at the earliestpossible moment.

 

(vii) Furnish to each Holder of Registrable Securities, without charge,at least one conformed copy of each Registration Statement and anypost-effective amendment thereto (without documents incorporated therein byreference or exhibits thereto, unless requested).

 

(viii) (A) Cooperate with the selling Holder of Registrable Securitiesto facilitate the timely preparation and delivery of certificates representingRegistrable Securities to be sold and not bearing any Securities Act legend;and

 

(B) enable certificates for such Registrable Securities to be issuedfor such numbers of shares of Common Stock and registered in such names as theselling Holder may reasonably request at least two business days prior to anysale of Registrable Securities.

 

(ix) Subject to Article II, Section 2.1(iii) and Article III, Section(a)(ii)(B) hereof, upon the occurrence of any event contemplated by ArticleIII, Section (a)(v)(D) hereof, use its reasonable efforts promptly to prepareand file a supplement or prepare, file and obtain effectiveness of a post-­effectiveamendment to a Registration Statement or the related Prospectus or any documentincorporated therein by reference or file any other required document so that,as thereafter delivered to the purchasers of the Registrable Securities, such 

 

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Prospectus will not contain any untrue statement of a material fact oromit to state a material fact required to be stated therein or necessary tomake the statements therein, in the light of the circumstances under which theywere made, not misleading.

 

(x) Make available for inspection by representatives of the Holder ofthe Registrable Securities and any counsel or accountant retained by suchHolder, all financial and other records, pertinent corporate documents andproperties of the Company, and cause the respective officers, directors andemployees of the Company to supply all information reasonably requested by anysuch representative, counsel or accountant in connection with a RegistrationStatement; *provided, however*,that such records, documents or information which the Company determines, ingood faith, to be confidential and notifies such representatives, counsel oraccountants in writing that such records, documents or information areconfidential shall not be disclosed by such representatives, counsel oraccountants unless

 

(A) the disclosure of such records, documents or information isnecessary to avoid or correct a material misstatement or omission in aRegistration Statement,

 

(B) the release of such records, documents or information is orderedpursuant to a subpoena or other order from a court of competent jurisdiction,or

 

(C) such records, documents or information have been generally madeavailable to the public.

 

(xi) Within a reasonable time prior to the filing of any RegistrationStatement, any Prospectus, any amendment to a Registration Statement oramendment or supplement to a Prospectus, provide copies of such document (notincluding any documents incorporated by reference therein unless requested) tothe Holder of Registrable Securities.

 

(xii) Use its reasonable efforts to cause all Registrable Securities tobe listed on any securities exchange on which similar securities issued by theCompany are then listed.

 

(xiii) Provide a CUSIP number for all Registrable Securities, not laterthan the effective date of a Registration Statement.

 

(xiv) Otherwise use its reasonable efforts to comply with allapplicable rules and regulations of the SEC and make available to itssecurityholders, as soon as reasonably practicable, an earnings statementcovering at least 12 months which shall satisfy the provisions of Section 11(a)of the Securities Act and Rule 158 promulgated thereunder.

 

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(xv) Use its reasonable efforts to cause the Registrable Securitiescovered by a Registration Statement to be registered with or approved by suchother governmental agencies or authorities as may be necessary by virtue of thebusiness and operations of the Company to enable Holder to consummate thedisposition of such Registrable Securities.

 

(b) The Company may require each Holder of Registrable Securities tofurnish to the Company in writing such information regarding the proposeddistribution by such Holder of such Registrable Securities as the Company mayfrom time to time reasonably request in writing.

 

(c) In connection with and as a condition to the Company’s obligationswith respect to the Registration Statement required to be filed pursuant toSection 2 hereof and this Section 3, each Holder agrees that

 

(i) it will not offer or sell its Registrable Securities under theRegistration Statement until it has received copies of the supplemental oramended Prospectus contemplated by Article III, Section (a)(ii) hereof andreceives notice that any post-effective amendment has become effective, and

 

(ii) upon receipt of any notice from the Company of the happening ofany event of the kind described in Article III, Section (a)(v)(D) hereof, suchHolder will forthwith discontinue disposition of Registrable Securitiespursuant to a Registration Statement until such Holder receives copies of thesupplemented or amended Prospectus contemplated by Article III, Section (a)(ix)hereof and receives notice that any post-effective amendment has becomeeffective, and, if so directed by the Company, such Holder will deliver to theCompany (at the expense of the Company) all copies in its possession, otherthan permanent file copies then in such Holder’s possession, of the Prospectuscovering such Registrable Securities current at the time of receipt of suchnotice.

 

4.                                               Indemnification;Contribution.

 

a.                                                               Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder and itsofficers and directors and each Person, if any, who controls any Holder (withinthe meaning of Section 15 of the Securities Act) as follows:

 

i.against any and all loss, liability, claim,damage and expense whatsoever, as incurred, arising out of

 

(A) any untrue statement or alleged untrue statement of a material factcontained in any Registration Statement (or any amendment thereto) pursuant towhich Registrable Securities were registered under the Securities Act,including all documents incorporated therein by reference, or

 

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(B) the omission or alleged omission therefrom of a material factrequired to be stated therein or necessary to make the statements therein notmisleading or

 

(C) arising out of any untrue statement or alleged untrue statement ofa material fact contained in any Prospectus (or any amendment or supplementthereto), including all documents incorporated therein by reference, or

 

(D) the omission or alleged omission therefrom of a material factnecessary in order to make the statements therein, in the light of thecircumstances under which they were made, not misleading;

 

ii.                                        against any and all loss, liability,claim, damage and expense whatsoever, as incurred, to the extent of theaggregate amount paid in settlement of any litigation, or investigation orproceeding by any governmental agency or body, commenced or threatened, or ofany claim whatsoever based upon any such untrue statement or omission, or anysuch alleged untrue statement or omission, if such settlement is effected withthe written consent of the Company, which consent shall not be unreasonablywithheld or delayed; and

 

iii.                                     against any and all expense whatsoever,as incurred (including reasonable fees and disbursements of counsel),reasonably incurred in investigating, preparing or defending against anylitigation, or investigation or proceeding by any governmental agency or body,commenced or threatened, in each case whether or not a party, or any claimwhatsoever based upon any such untrue statement or omission, or any suchalleged untrue statement or omission, to the extent that any such expense isnot paid under subparagraph (a) or (b) above; *provided,however*, that the indemnity provided pursuant to this Article IV,Section 4.1(c) does not apply to any Holder with respect to any loss,liability, claim, damage or expense to the extent arising out of

 

(x) any untrue statement or omission or alleged untrue statement oromission made in reliance upon and in conformity with written informationfurnished to the Company by such Holder expressly for use in a RegistrationStatement (or any amendment thereto) or any Prospectus (or any amendment orsupplement thereto) or

 

(y) such Holder’s failure to deliver an amended or supplementalProspectus, after having been provided copies of any such amended orsupplemental Prospectus by the Company, if such loss, liability, claim, damageor expense would not have arisen had such delivery occurred.

 

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b.                              Indemnificationby Holder.  Each Holder severallyagrees to indemnify and hold harmless the Company and the other selling Holder,and each of their respective directors and officers (including each directorand officer of the Company who signed the Registration Statement), and eachPerson, if any, who controls the Company or any other selling Holder within themeaning of Section 15 of the Securities Act, under the same circumstances andto the same extent as the indemnity contained in Section 4.1(a) hereof (exceptthat any settlement described in Section 4.1(a)(B) shall be effected with thewritten consent of such Holder, which consent shall not be unreasonablywithheld or delayed), but only insofar as such loss, liability, claim, damageor expense arises out of or is based upon any untrue statement or omission, oralleged untrue statements or omissions, made in a Registration Statement (orany amendment thereto) or any Prospectus (or any amendment or supplementthereto) in reliance upon and in conformity with written information furnishedto the Company by such selling Holder expressly for use in such RegistrationStatement (or any amendment thereto) or such Prospectus (or any amendment orsupplement thereto).

 

c.                               Conductof Indemnification Proceedings. (i) Each indemnified party shall givereasonably prompt notice to each indemnifying party of any action or proceedingcommenced against it in respect of which indemnity may be sought hereunder, butfailure to so notify an indemnifying party

 

(A) shall not relieve it from any liability which it may have under theindemnity agreement provided in Section 4.1(a) or 4.1(b) above, unless and tothe extent it did not otherwise learn of such action and the lack of notice bythe indemnified party results in the forfeiture by the indemnifying party ofsubstantial rights and defenses and

 

(B) shall not, in any event, relieve the indemnifying party from anyobligations to any indemnified party other than the indemnification obligationprovided under Section 4.1(a) or 4.1(b) above.

 

(ii) If the indemnifying party so elects within a reasonable time afterreceipt of such notice, the indemnifying party may assume the defense of suchaction or proceeding at such indemnifying party’s own expense with counselchosen by the indemnifying party and approved by the indemnified partiesdefendant in such action or proceeding, which approval shall not beunreasonably withheld; *provided, however*,that, if such indemnified party or parties reasonably determine that a conflictof interest exists where it is advisable for such indemnified party or partiesto be represented by separate counsel or that, upon advice of counsel, theremay be legal defenses available to them which are different from or in additionto those available to the indemnifying party, then the indemnifying party shallnot be entitled to assume such defense and the 

 

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indemnified party or parties shall be entitled to one separate counselat the indemnifying party’s or parties’ expense.

 

(iii)(A) If an indemnifying party is not entitled to assume the defenseof such action or proceeding as a result of the proviso to Section 4.1(c), suchindemnifying party’s counsel shall be entitled to conduct such indemnifyingparty’s defense, and counsel for the indemnified party or parties shall beentitled to conduct the defense of such indemnified party or parties, it beingunderstood that both such counsel will cooperate with each other to conduct thedefense of such action or proceeding as efficiently as possible.

 

(B) If an indemnifying party is not so entitled to assume the defenseof such action or does not assume such defense, after having received thenotice referred to in Section 4.1(c), the indemnifying party or parties willpay the reasonable fees and expenses of counsel for the indemnified party orparties as incurred.

 

(C) In such event, however, no indemnifying party will be liable forany settlement effected without the written consent of such indemnifying party,which consent may not be unreasonably withheld or delayed.

 

                                                            (iv) If an indemnifying party is entitled to assume,and assumes, the defense of such action or proceeding in accordance with thisSection 4(c), such indemnifying party shall not be liable for any fees andexpenses of counsel for the indemnified parties incurred thereafter inconnection with such action or proceeding.

 

d.                              Contribution.

 

(i)(A) In order to provide for just and equitable contribution in circumstances inwhich the indemnity agreement provided for in this Section 4 is for any reasonheld to be unenforceable although applicable in accordance with its terms, theCompany and the selling Holder shall contribute to the aggregate losses,liabilities, claims, damages and expenses of the nature contemplated by suchindemnity agreement incurred by the Company and the selling Holder, in suchproportion as is appropriate to reflect the relative fault of and benefits to theCompany on the one hand and the selling Holder on the other (in suchproportions that the selling Holder are severally, not jointly, responsible forthe balance), in connection with the statements or omissions which resulted insuch losses, claims, damages, liabilities or expenses, as well as any otherrelevant equitable considerations.

 

(B) (I) The relative benefits to the indemnifying party and indemnifiedparties shall be determined by reference to, among 

 

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other things, the total proceeds received by the indemnifying party andindemnified parties in connection with the offering to which such losses,claims, damages, liabilities or expenses relate.

 

(II) The relative fault of the indemnifying party and indemnifiedparties shall be determined by reference to, among other things, whether theaction in question, including any untrue or alleged untrue statement of amaterial fact or omission or alleged omission to state a material fact, hasbeen made by, or relates to information supplied by, such indemnifying party orthe indemnified parties, and the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent such action.

 

(ii) (A) The parties hereto agree that it would not be just orequitable if contribution pursuant to this Section 4.4(d) were determined bypro rata allocation or by any other method of allocation which does not takeaccount of the equitable considerations referred to in Section 4.4(i).

 

(B) Notwithstanding the provisions of this Section 4.4, no sellingHolder shall be required to contribute any amount in excess of the amount bywhich the total price at which the Registrable Securities of such sellingHolder were offered to the public exceeds the amount of any damages which suchselling Holder would otherwise have been required to pay by reason of suchuntrue statement or omission.

 

(iii) Notwithstanding the foregoing, no Person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the Securities Act)shall be entitled to contribution from any Person who was not guilty of suchfraudulent misrepresentation.

 

(iv) For purposes of this Section 4.4, each Person, if any, whocontrols a Holder within the meaning of Section 15 of the Securities Act anddirectors and officers of a Holder shall have the same rights to contributionas such Holder, and each director of the Company, each officer of the Companywho signed the Registration Statement and each Person, if any, who controls theCompany within the meaning of Section 15 of the Securities Act shall have thesame rights to contribution as the Company.

 

5.                      Filing of Exchange Act Reports; Rule 144 Sales

 

a.                       TheCompany covenants that subsequent to the Closing of the Company’s initialpublic offering it will file the reports required to be filed by the Companyunder the Securities Act and the Exchange Act so as to enable any Holder tosell Exchange Stock pursuant to Rule 144.

 

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b.                      Inconnection with any sale, transfer or other disposition by any Holder of anyExchange Stock pursuant to Rule 144, the Company shall cooperate with suchHolder to facilitate the timely preparation and delivery of certificatesrepresenting Exchange Stock to be sold and not bearing any Securities Actlegend, and enable certificates for such Exchange Stock to be for such numberof shares and registered in such names as the selling Holder may reasonablyrequest at least two business days prior to any sale of Exchange Stock.

 

(b)                                               Miscellaneous.

 

a.                       Amendmentsand Waivers. (i) The provisions of this Agreement, including the provisionsof this Section 6.1(i), may not be amended, modified or supplemented, andwaivers or consents to departures from the provisions hereof may not be givenwithout the written consent of the Company and the Holders of a majority inamount of the outstanding Registrable Securities; *provided, however*, that no amendment, modification orsupplement or waiver or consent to the departure with respect to the provisionsof Articles 2, 4 or 5 hereof shall be effective as against any Holderunless consented to in writing by such Holder.

 

(ii) Notice of any amendment, modification or supplement to thisAgreement adopted in accordance with this Section 6.1 shall be provided by theCompany to each Holder at least thirty (30) days prior to the effective date ofsuch amendment, modification or supplement.

 

b.                      Notices.(i) All notices and other communications provided for or permitted hereundershall be made in writing by hand-delivery, registered first-class mail, telex,telecopier, or any courier guaranteeing overnight delivery, to the parties attheir respective addresses set forth opposite their signatures below or at suchother address as a party may indicate by written notice to the other party orparties.

 

(ii) All such notices and communications shall be deemed to have beenduly given:

 

(A) at the time delivered by hand, if personally delivered;

 

(B) three (3) business days after being deposited in the mail, postageprepaid, if mailed;

 

(C) when answered back, if telexed;

 

(D) when receipt is acknowledged, if telecopied; or

 

(E) at the time delivered, if delivered by an air courier guaranteeingovernight delivery.

 

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c.                       Successors,Assigns and Transferees. (i) This Agreement shall inure to the benefit ofand be binding upon the successors, assigns and transferees of each of theparties, including, without limitation and without the need for an expressassignment, subsequent Holder.

 

(ii) If any successor, assignee or transferee of any Holder shallacquire Registrable Securities, in any manner, whether by operation of law orotherwise, such Registrable Securities shall be held subject to all of theterms of this Agreement, and by taking and holding such Registrable Securitiessuch Person shall be entitled to receive the benefits hereof and shall beconclusively deemed to have agreed to be bound by all of the terms andprovisions hereof.

 

(iii) The term “successor, assignee or transferee of a Holder” shallinclude any Person that acquires Registrable Securities by operation of law,including upon the merger or consolidation, liquidation or dissolution of aHolder.

 

d.                      Counterparts.  This Agreement may be executed in any numberof counterparts and by the parties hereto in separate counterparts, each ofwhich when so executed shall be deemed to be an original and all of which takentogether shall constitute one and the same agreement.

 

e.                       Headings. The headings in this Agreement are forconvenience of reference only and shall not limit or otherwise affect themeaning hereof.

 

f.                         GOVERNINGLAW.  THIS AGREEMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLANDWITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF.

 

g.                      SpecificPerformance.  The parties heretoacknowledge that there would be no adequate remedy at law if any party fails toperform any of its obligations hereunder, and accordingly agree that eachparty, in addition to any other remedy to which it may be entitled at law or inequity, shall be entitled to compel specific performance of the obligations ofany other party under this Agreement in accordance with the terms andconditions of this Agreement in any court of the United States or any Statethereof having jurisdiction.

 

h.                      EntireAgreement.  This Agreement isintended by the parties as a final expression of their agreement and intendedto be a complete and exclusive statement of the agreement and understanding ofthe parties hereto in respect of the subject matter contained herein.  This Agreement supersedes all prioragreements and understandings between the parties with respect to such subjectmatter.

 

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IN WITNESS WHEREOF, each of the parties hereto has executed thisAgreement, or caused this Agreement to be duly executed on its behalf, as ofthe date first written above.

 

Address:

 
| 1800 East Deere Avenue  Santa Ana, CA 92705 | American Spectrum Realty,  Inc.                             |
|---------------------------------------------|-------------------------------------------------------------|
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|                                        |                                                        |   |
|                                        | By:                                                         |   |
|                                        |                                                        | Name: | William J. Carden |
|                                        |                                                        | Title: | Chairman of the Board and  Chief Executive Officer |
|                                        |                                                        |   |
|                                        |                                                        |   |
| 1800 East Deere Avenue  Santa Ana, CA 92705 | AMERICAN SPECTRUM REALTY  OPERATING PARTNERSHIP, L.P.  |
|                                        |                                                        |   |
|                                        |                                                        |   |
|                                        | By:                                                         | American Spectrum Realty,  Inc., its general partner  |
|                                        |                                                        |   |
|                                        |                                                        |   |
|                                        | By:                                                         |   |
|                                        |                                                        | Name: | William J. Carden |
|                                        |                                                        | Title: | Chairman of the Board and  Chief Executive Officer |
|                                        |                                                        |   |
|                                        |                                                        |   |
|                                        |                                                        |   |
|                                        |                                                        |   |

 

 

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