Exhibit 10









 




Exhibit 10.34




 




 




REGISTRATION RIGHTS AGREEMENT




 




THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of

October 15, 2001 by and among American Spectrum Realty, Inc., a Maryland

corporation, which operates as a real estate investment trust (the “Company”), American Spectrum Realty

Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), and the other

parties which are signatories hereto (together with their respective

successors, transferees and assigns, each a “Holder”

and collectively the “Holders”).




 




WHEREAS, on the date hereof, that Holder will receive units

of limited partnership interest in the Operating Partnership (such units of

limited partnership interest being referred to hereinafter as the “OP Units”).




 




WHEREAS, the Company, the Operating Partnership and the

Holder are parties to an Exchange Rights Agreement which provides the Holder,

among other things, with the right to demand that the Operating Partnership

redeem their OP Units for cash and, at the option of the Company, the Company

may satisfy that redemption request on behalf of the Operating Partnership

through the issuance of the Company’s Common Stock, par value $0.01 per share;

and




 




WHEREAS, in order to induce the Holder to consummate the

closings contemplated under the Agreement, the Company has agreed to grant to

the Holder the registration rights set forth in Section 2 hereof.




 




NOW, THEREFORE, the parties hereto, in consideration of the

foregoing, the mutual covenants and agreements hereinafter set forth, and other

good and valuable consideration, the receipt and sufficiency of which hereby

are acknowledged, hereby agree as follows:




 




1.               Definitions.




 




As used in this Agreement,

the following capitalized defined terms shall have the following meanings:




 




“Common Stock” shall

mean shares of common stock, par value $0.01 per share, of the Company.




 




“Company” shall have

the meaning set forth in the Preamble and also shall include the Company’s

successors.




 




“Exchange Act” shall

mean the Securities Exchange Act of 1934, as amended from time to time.




 




 





























 




“Exchange Rights Agreement”

shall mean the Exchange Rights Agreement, dated the date hereof, among the

Company, the Operating Partnership and the other parties thereto.




 




“Exchange Stock” shall

mean any Common Stock issued or to be issued to the Holder upon the exchange of

its OP Units pursuant to the Exchange Rights Agreement.




 




“Holder” or “Holders” shall have

the meaning set forth in the Preamble.




 




“NASD” shall mean the

National Association of Securities Dealers, Inc.




 




“OP Units” shall have

the meaning set forth in the Preamble.




 




“Operating Partnership”

shall have the meaning set forth in the Preamble and also shall include the

Operating Partnership’s successors.




 




“Person” shall mean an

individual, partnership, corporation, limited liability company, trust, estate,

or unincorporated organization, or other entity, or a government or agency or

political subdivision thereof.




 




“Prospectus” shall

mean the prospectus included in a Registration Statement, including any

preliminary prospectus, and any such prospectus as amended or supplemented by

any prospectus supplement with respect to the terms of the offering of any

portion of the Registrable Securities covered by a Shelf Registration Statement,

and by all other amendments and supplements to such prospectus, including

post-effective amendments, and in each case including all material incorporated

by reference therein.




 




“Registrable Securities”

shall mean the Exchange Stock, excluding




 




(i)

Exchange Stock for which a Registration Statement relating to the sale thereof

shall have become effective under the Securities Act and which have been

disposed 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 with

this 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 state

securities or “blue sky” laws (including reasonable fees and disbursements of

counsel in connection with “blue sky” qualification of any of the Registrable

Securities and the preparation of a Blue Sky Memorandum) and compliance with

the rules of the NASD;




 




2





























 




(iii)

all expenses of any Persons in preparing or assisting in preparing, word

processing, printing and distributing any Registration Statement, any Prospectus,

certificates and other documents relating to the performance of and compliance

with this Agreement;




 




(iv)

all fees and expenses incurred in connection with the listing, if any, of any

of the Registrable Securities on any securities exchange or exchanges pursuant

to Article III, Section (xii) hereof; and




 




(v)

the fees and disbursements of counsel for the Company and of the independent

public accountants of the Company, including the expenses of any special audits

or “cold comfort” letters required by or incident to such performance and

compliance.




 




Registration Expenses shall specifically

exclude underwriting discounts and commissions, the fees and disbursements of

counsel representing a selling Holder, and transfer taxes, if any, relating to

the sale or disposition of Registrable Securities by a selling Holder, all of

which shall be borne by such Holder in all cases.




 




“Registration Statement”

or “Shelf Registration

Statement” shall mean a “shelf” registration statement of the

Company and any other Person required to be a registrant with respect to such

shelf registration statement pursuant to the requirements of the Securities Act

which covers the issuance or resale of the Registrable Securities on Form S-3

or otherwise under Rule 415 promulgated under the Securities Act, or any

similar rule that may be adopted by the SEC, and all amendments and supplements

to such registration statement, including post-effective amendments, in each

case including the Prospectus contained therein, all exhibits thereto and all

materials incorporated by reference therein.




 




“Rule 144” shall mean

Rule 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 the

Securities and Exchange Commission.




 




“Securities Act” shall

mean the Securities Act of 1933, as amended from time to time, and any

successor Act.




 




“Shelf Registration”

shall mean a registration required to be effected pursuant to Section 2 hereof.




 




2.                               Shelf

Registration Under the Securities Act.




 




a.                               Filing

of Shelf Registration Statement.




 




(i)

Within 15 days after the first anniversary date of the date of the closing of

the consolidation pursuant to the Registration Statement on Form S-4 initial

public offering, the Company shall cause to be filed a Shelf Registration 




 




3





























 




Statement providing for the

sale by the Holder of the Registrable Securities and will use commercially

reasonable efforts to cause such Shelf Registration Statement to be declared

effective by the SEC as soon as practicable.




 




(ii)

The Company agrees to use commercially reasonable efforts to keep the Shelf

Registration Statement continuously effective for a period expiring on the date

on which all of the Registrable Securities covered by the Shelf Registration

Statement have been sold pursuant to the Shelf Registration Statement or have

become eligible for sale pursuant to Rule 144(k) and, subject to Article III

hereof, further agrees to supplement or amend the Shelf Registration Statement,

if and as required by the rules, regulations or instructions applicable to the

registration form used by the Company for such Shelf Registration Statement or

by the Securities Act or by any other rules and regulations thereunder for

shelf registration; provided, however,

that the Company shall not be deemed to have used commercially  reasonable efforts to keep a Registration

Statement effective during the applicable period if it voluntarily takes any

action that would result in selling Holder covered thereby not being able to

sell such Registrable Securities during that period, unless such action is

required under applicable law or the Company has filed a post-effective

amendment to the Registration Statement and the SEC has not declared it

effective.




 




(iii)

Notwithstanding the foregoing, the Company shall not be required to file a

Registration Statement or to keep a Registration Statement effective if the

negotiation or consummation of a transaction is pending or an event has

occurred, which negotiation, consummation or event would require additional

disclosure by the Company in the Registration Statement of material information

which the Company has a bona  fide business purpose for keeping

confidential and the nondisclosure of which in the Registration Statement might

cause the Registration Statement to fail to comply with applicable disclosure

requirements; provided, however,

that the Company may not delay, suspend or withdraw a Registration Statement

for such reason for more than 60 days or more often than four times during any

period of 12 consecutive months.




 




(iv)

The Company is not required to file a separate Registration Statement, but may

file one Registration Statement covering the Registrable Securities held by

more than one Holder.




 




b.                              Expenses.




 




(i)

The Company shall pay all Registration Expenses in connection with any

registration 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 transfer

taxes, if any, relating to the sale or disposition of such Holder’s Registrable

Securities pursuant to the Shelf Registration Statement or Rule 144.




 




4





























 




c.                               Inclusion

in Shelf Registration Statement. 

Any Holder that does not, within 10 days after receipt of a reasonable

request by the Company for information in connection with the Shelf

Registration Statement, provide such information to the Company, shall not be

entitled to have its Registrable Securities included in the Shelf Registration

Statement.




 




d.                              Effect

of Material Breach.  In the event

that the Company shall breach any of its material obligations hereunder in any

material respect, any Holder of Registrable Securities may demand that the

Company file a registration statement covering such Holder’s Registrable

Securities.  The Company agrees to file

such registration statement within 60 days after receipt of such demand and

agrees to use its best efforts to procure the effectiveness of such

registration statement within 60 days after filing.




 




3.                     

Registration Procedures. (a) In connection with the obligations

of the Company with respect to the Registration Statement required to be filed

pursuant to Article 2 hereof, the Company shall, to the extent applicable:




 




(i) Prepare and file with the SEC, within the time period set forth in

Section 2 hereof, a Shelf Registration Statement, which Shelf Registration

Statement




 




(A) shall be available for the sale of the Registrable Securities in

accordance with the intended method or methods of distribution by the selling

Holder thereof, and




 




(B) shall comply as to form in all material respects with the

requirements of the applicable form of registration statement and include all

financial 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-­effective

amendments to each such Registration Statement as may be necessary to keep such

Registration Statement effective for the applicable period;




 




(II) cause each such Prospectus to be supplemented by any required

prospectus supplement, and as so supplemented to be filed pursuant to Rule 424

or any similar rule that may be adopted under the Securities Act;




 




(III) respond as promptly as practicable to any comments received from

the SEC with respect to the Shelf Registration Statement, or any amendment,

post-effective amendment or supplement relating thereto; and




 




5





























 




(IV) comply with the provisions of the Securities Act with respect to

the disposition of all securities covered by each Registration Statement during

the applicable period in accordance with the intended method or methods of

distribution by the selling Holder thereof.




 




(B)           (I) Each Holder

shall promptly provide to the Company such information as the Company

reasonably requests in order to identify such Holder and the method of

distribution in a post-effective amendment to the Registration Statement or a

supplement to the Prospectus.




 




(II) Such Holder also shall notify the Company in writing upon

completion of any offer or sale or at such time as such Holder no longer

intends 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, and

any amendment or supplement thereto and such other documents as such Holder may

reasonably request, in order to facilitate the public sale or other disposition

of the Registrable Securities; the Company consents to the use of the

Prospectus, including each preliminary Prospectus, by each such Holder of

Registrable Securities in connection with the offering and sale of the

Registrable Securities covered by the Prospectus or the preliminary Prospectus.




 




(iv) Use its reasonable efforts to register or qualify the Registrable

Securities by the time the applicable Registration Statement is declared

effective by the SEC under all applicable state securities or “blue sky” laws

of such jurisdictions as any Holder of Registrable Securities covered by a

Registration Statement shall reasonably request in writing, keep each such

registration or qualification effective during the period such Registration

Statement is required to be kept effective, and do any and all other acts and

things which may be reasonably necessary or advisable to enable such Holder to

consummate the disposition in each such jurisdiction of such Registrable

Securities 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 register

as a broker or dealer in such jurisdiction where it would not otherwise be

required 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.




 




6





























 




(v) Notify each Holder of Registrable Securities promptly and, if

requested by such Holder, confirm such notification in writing




 




(A) when a Registration Statement has become effective and when any

post-effective amendments and supplements thereto become effective,




 




(B) of the issuance by the SEC or any state securities authority of any

stop order suspending the effectiveness of a Registration Statement or the

initiation of any proceedings for that purpose,




 




(C) if the Company receives any notification with respect to the

suspension of the qualification of the Registrable Securities for sale in any

jurisdiction or the initiation of any proceeding for such purpose, and




 




(D) of the happening of any event during the period a Registration

Statement is effective which is of a type specified in Article II, Section

2.1(iii) hereof or as a result of which such Registration Statement or the

related Prospectus contains any untrue statement of a material fact or omits to

state any material fact required to be stated therein or necessary to make the

statements 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 order

suspending the effectiveness of a Registration Statement at the earliest

possible moment.




 




(vii) Furnish to each Holder of Registrable Securities, without charge,

at least one conformed copy of each Registration Statement and any

post-effective amendment thereto (without documents incorporated therein by

reference or exhibits thereto, unless requested).




 




(viii) (A) Cooperate with the selling Holder of Registrable Securities

to facilitate the timely preparation and delivery of certificates representing

Registrable Securities to be sold and not bearing any Securities Act legend;

and




 




(B) enable certificates for such Registrable Securities to be issued

for such numbers of shares of Common Stock and registered in such names as the

selling Holder may reasonably request at least two business days prior to any

sale 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 Article

III, Section (a)(v)(D) hereof, use its reasonable efforts promptly to prepare

and file a supplement or prepare, file and obtain effectiveness of a post-­effective

amendment to a Registration Statement or the related Prospectus or any document

incorporated therein by reference or file any other required document so that,

as thereafter delivered to the purchasers of the Registrable Securities, such 




 




7





























 




Prospectus will not contain any untrue statement of a material fact or

omit to state a material fact required to be stated therein or necessary to

make the statements therein, in the light of the circumstances under which they

were made, not misleading.




 




(x) Make available for inspection by representatives of the Holder of

the Registrable Securities and any counsel or accountant retained by such

Holder, all financial and other records, pertinent corporate documents and

properties of the Company, and cause the respective officers, directors and

employees of the Company to supply all information reasonably requested by any

such representative, counsel or accountant in connection with a Registration

Statement; provided, however,

that such records, documents or information which the Company determines, in

good faith, to be confidential and notifies such representatives, counsel or

accountants in writing that such records, documents or information are

confidential shall not be disclosed by such representatives, counsel or

accountants unless




 




(A) the disclosure of such records, documents or information is

necessary to avoid or correct a material misstatement or omission in a

Registration Statement,




 




(B) the release of such records, documents or information is ordered

pursuant to a subpoena or other order from a court of competent jurisdiction,

or




 




(C) such records, documents or information have been generally made

available to the public.




 




(xi) Within a reasonable time prior to the filing of any Registration

Statement, any Prospectus, any amendment to a Registration Statement or

amendment or supplement to a Prospectus, provide copies of such document (not

including any documents incorporated by reference therein unless requested) to

the Holder of Registrable Securities.




 




(xii) Use its reasonable efforts to cause all Registrable Securities to

be listed on any securities exchange on which similar securities issued by the

Company are then listed.




 




(xiii) Provide a CUSIP number for all Registrable Securities, not later

than the effective date of a Registration Statement.




 




(xiv) Otherwise use its reasonable efforts to comply with all

applicable rules and regulations of the SEC and make available to its

securityholders, as soon as reasonably practicable, an earnings statement

covering at least 12 months which shall satisfy the provisions of Section 11(a)

of the Securities Act and Rule 158 promulgated thereunder.




 




8





























 




(xv) Use its reasonable efforts to cause the Registrable Securities

covered by a Registration Statement to be registered with or approved by such

other governmental agencies or authorities as may be necessary by virtue of the

business and operations of the Company to enable Holder to consummate the

disposition of such Registrable Securities.




 




(b) The Company may require each Holder of Registrable Securities to

furnish to the Company in writing such information regarding the proposed

distribution by such Holder of such Registrable Securities as the Company may

from time to time reasonably request in writing.




 




(c) In connection with and as a condition to the Company’s obligations

with respect to the Registration Statement required to be filed pursuant to

Section 2 hereof and this Section 3, each Holder agrees that




 




(i) it will not offer or sell its Registrable Securities under the

Registration Statement until it has received copies of the supplemental or

amended Prospectus contemplated by Article III, Section (a)(ii) hereof and

receives notice that any post-effective amendment has become effective, and




 




(ii) upon receipt of any notice from the Company of the happening of

any event of the kind described in Article III, Section (a)(v)(D) hereof, such

Holder will forthwith discontinue disposition of Registrable Securities

pursuant to a Registration Statement until such Holder receives copies of the

supplemented or amended Prospectus contemplated by Article III, Section (a)(ix)

hereof and receives notice that any post-effective amendment has become

effective, and, if so directed by the Company, such Holder will deliver to the

Company (at the expense of the Company) all copies in its possession, other

than permanent file copies then in such Holder’s possession, of the Prospectus

covering such Registrable Securities current at the time of receipt of such

notice.




 




4.                                               Indemnification;

Contribution.




 




a.                                                               Indemnification by the Company. 

The Company agrees to indemnify and hold harmless each Holder and its

officers and directors and each Person, if any, who controls any Holder (within

the 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 fact

contained in any Registration Statement (or any amendment thereto) pursuant to

which Registrable Securities were registered under the Securities Act,

including all documents incorporated therein by reference, or




 




9





























 




(B) the omission or alleged omission therefrom of a material fact

required to be stated therein or necessary to make the statements therein not

misleading or




 




(C) arising out of any untrue statement or alleged untrue statement of

a material fact contained in any Prospectus (or any amendment or supplement

thereto), including all documents incorporated therein by reference, or




 




(D) the omission or alleged omission therefrom of a material fact

necessary in order to make the statements therein, in the light of the

circumstances 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 the

aggregate amount paid in settlement of any litigation, or investigation or

proceeding by any governmental agency or body, commenced or threatened, or of

any claim whatsoever based upon any such untrue statement or omission, or any

such alleged untrue statement or omission, if such settlement is effected with

the written consent of the Company, which consent shall not be unreasonably

withheld 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 any

litigation, or investigation or proceeding by any governmental agency or body,

commenced or threatened, in each case whether or not a party, or any claim

whatsoever based upon any such untrue statement or omission, or any such

alleged untrue statement or omission, to the extent that any such expense is

not 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 or

omission made in reliance upon and in conformity with written information

furnished to the Company by such Holder expressly for use in a Registration

Statement (or any amendment thereto) or any Prospectus (or any amendment or

supplement thereto) or




 




(y) such Holder’s failure to deliver an amended or supplemental

Prospectus, after having been provided copies of any such amended or

supplemental Prospectus by the Company, if such loss, liability, claim, damage

or expense would not have arisen had such delivery occurred.




 




10





























 




b.                              Indemnification

by Holder.  Each Holder severally

agrees to indemnify and hold harmless the Company and the other selling Holder,

and each of their respective directors and officers (including each director

and officer of the Company who signed the Registration Statement), and each

Person, if any, who controls the Company or any other selling Holder within the

meaning of Section 15 of the Securities Act, under the same circumstances and

to the same extent as the indemnity contained in Section 4.1(a) hereof (except

that any settlement described in Section 4.1(a)(B) shall be effected with the

written consent of such Holder, which consent shall not be unreasonably

withheld or delayed), but only insofar as such loss, liability, claim, damage

or expense arises out of or is based upon any untrue statement or omission, or

alleged untrue statements or omissions, made in a Registration Statement (or

any amendment thereto) or any Prospectus (or any amendment or supplement

thereto) in reliance upon and in conformity with written information furnished

to the Company by such selling Holder expressly for use in such Registration

Statement (or any amendment thereto) or such Prospectus (or any amendment or

supplement thereto).




 




c.                               Conduct

of Indemnification Proceedings. (i) Each indemnified party shall give

reasonably prompt notice to each indemnifying party of any action or proceeding

commenced against it in respect of which indemnity may be sought hereunder, but

failure to so notify an indemnifying party




 




(A) shall not relieve it from any liability which it may have under the

indemnity agreement provided in Section 4.1(a) or 4.1(b) above, unless and to

the extent it did not otherwise learn of such action and the lack of notice by

the indemnified party results in the forfeiture by the indemnifying party of

substantial rights and defenses and




 




(B) shall not, in any event, relieve the indemnifying party from any

obligations to any indemnified party other than the indemnification obligation

provided under Section 4.1(a) or 4.1(b) above.




 




(ii) If the indemnifying party so elects within a reasonable time after

receipt of such notice, the indemnifying party may assume the defense of such

action or proceeding at such indemnifying party’s own expense with counsel

chosen by the indemnifying party and approved by the indemnified parties

defendant in such action or proceeding, which approval shall not be

unreasonably withheld; provided, however,

that, if such indemnified party or parties reasonably determine that a conflict

of interest exists where it is advisable for such indemnified party or parties

to be represented by separate counsel or that, upon advice of counsel, there

may be legal defenses available to them which are different from or in addition

to those available to the indemnifying party, then the indemnifying party shall

not be entitled to assume such defense and the 




 




11





























 




indemnified party or parties shall be entitled to one separate counsel

at the indemnifying party’s or parties’ expense.




 




(iii)(A) If an indemnifying party is not entitled to assume the defense

of such action or proceeding as a result of the proviso to Section 4.1(c), such

indemnifying party’s counsel shall be entitled to conduct such indemnifying

party’s defense, and counsel for the indemnified party or parties shall be

entitled to conduct the defense of such indemnified party or parties, it being

understood that both such counsel will cooperate with each other to conduct the

defense of such action or proceeding as efficiently as possible.




 




(B) If an indemnifying party is not so entitled to assume the defense

of such action or does not assume such defense, after having received the

notice referred to in Section 4.1(c), the indemnifying party or parties will

pay the reasonable fees and expenses of counsel for the indemnified party or

parties as incurred.




 




(C) In such event, however, no indemnifying party will be liable for

any 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 this

Section 4(c), such indemnifying party shall not be liable for any fees and

expenses of counsel for the indemnified parties incurred thereafter in

connection with such action or proceeding.




 




d.                              Contribution.




 




(i)

(A) In order to provide for just and equitable contribution in circumstances in

which the indemnity agreement provided for in this Section 4 is for any reason

held to be unenforceable although applicable in accordance with its terms, the

Company and the selling Holder shall contribute to the aggregate losses,

liabilities, claims, damages and expenses of the nature contemplated by such

indemnity agreement incurred by the Company and the selling Holder, in such

proportion as is appropriate to reflect the relative fault of and benefits to the

Company on the one hand and the selling Holder on the other (in such

proportions that the selling Holder are severally, not jointly, responsible for

the balance), in connection with the statements or omissions which resulted in

such losses, claims, damages, liabilities or expenses, as well as any other

relevant equitable considerations.




 




(B) (I) The relative benefits to the indemnifying party and indemnified

parties shall be determined by reference to, among 




 




12





























 




other things, the total proceeds received by the indemnifying party and

indemnified 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 indemnified

parties shall be determined by reference to, among other things, whether the

action in question, including any untrue or alleged untrue statement of a

material fact or omission or alleged omission to state a material fact, has

been made by, or relates to information supplied by, such indemnifying party or

the indemnified parties, and the parties’ relative intent, knowledge, access to

information and opportunity to correct or prevent such action.




 




(ii) (A) The parties hereto agree that it would not be just or

equitable if contribution pursuant to this Section 4.4(d) were determined by

pro rata allocation or by any other method of allocation which does not take

account of the equitable considerations referred to in Section 4.4(i).




 




(B) Notwithstanding the provisions of this Section 4.4, no selling

Holder shall be required to contribute any amount in excess of the amount by

which the total price at which the Registrable Securities of such selling

Holder were offered to the public exceeds the amount of any damages which such

selling Holder would otherwise have been required to pay by reason of such

untrue statement or omission.




 




(iii) Notwithstanding the foregoing, no Person guilty of fraudulent

misrepresentation (within the meaning of Section 11(f) of the Securities Act)

shall be entitled to contribution from any Person who was not guilty of such

fraudulent misrepresentation.




 




(iv) For purposes of this Section 4.4, each Person, if any, who

controls a Holder within the meaning of Section 15 of the Securities Act and

directors and officers of a Holder shall have the same rights to contribution

as such Holder, and each director of the Company, each officer of the Company

who signed the Registration Statement and each Person, if any, who controls the

Company within the meaning of Section 15 of the Securities Act shall have the

same rights to contribution as the Company.




 




5.                      

Filing of Exchange Act Reports; Rule 144 Sales




 




a.                       The

Company covenants that subsequent to the Closing of the Company’s initial

public offering it will file the reports required to be filed by the Company

under the Securities Act and the Exchange Act so as to enable any Holder to

sell Exchange Stock pursuant to Rule 144.




 




13





























 




b.                      In

connection with any sale, transfer or other disposition by any Holder of any

Exchange Stock pursuant to Rule 144, the Company shall cooperate with such

Holder to facilitate the timely preparation and delivery of certificates

representing Exchange Stock to be sold and not bearing any Securities Act

legend, and enable certificates for such Exchange Stock to be for such number

of shares and registered in such names as the selling Holder may reasonably

request at least two business days prior to any sale of Exchange Stock.




 




(b)                                               Miscellaneous.




 




a.                       Amendments

and Waivers. (i) The provisions of this Agreement, including the provisions

of this Section 6.1(i), may not be amended, modified or supplemented, and

waivers or consents to departures from the provisions hereof may not be given

without the written consent of the Company and the Holders of a majority in

amount of the outstanding Registrable Securities; provided, however, that no amendment, modification or

supplement or waiver or consent to the departure with respect to the provisions

of Articles 2, 4 or 5 hereof shall be effective as against any Holder

unless consented to in writing by such Holder.




 




(ii) Notice of any amendment, modification or supplement to this

Agreement adopted in accordance with this Section 6.1 shall be provided by the

Company to each Holder at least thirty (30) days prior to the effective date of

such amendment, modification or supplement.




 




b.                      Notices.

(i) All notices and other communications provided for or permitted hereunder

shall be made in writing by hand-delivery, registered first-class mail, telex,

telecopier, or any courier guaranteeing overnight delivery, to the parties at

their respective addresses set forth opposite their signatures below or at such

other address as a party may indicate by written notice to the other party or

parties.




 




(ii) All such notices and communications shall be deemed to have been

duly given:




 




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




 




(B) three (3) business days after being deposited in the mail, postage

prepaid, 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 guaranteeing

overnight delivery.




 




14





























 




c.                       Successors,

Assigns and Transferees. (i) This Agreement shall inure to the benefit of

and be binding upon the successors, assigns and transferees of each of the

parties, including, without limitation and without the need for an express

assignment, subsequent Holder.




 




(ii) If any successor, assignee or transferee of any Holder shall

acquire Registrable Securities, in any manner, whether by operation of law or

otherwise, such Registrable Securities shall be held subject to all of the

terms of this Agreement, and by taking and holding such Registrable Securities

such Person shall be entitled to receive the benefits hereof and shall be

conclusively deemed to have agreed to be bound by all of the terms and

provisions hereof.




 




(iii) The term “successor, assignee or transferee of a Holder” shall

include any Person that acquires Registrable Securities by operation of law,

including upon the merger or consolidation, liquidation or dissolution of a

Holder.




 




d.                      Counterparts.  This Agreement may be executed in any number

of counterparts and by the parties hereto in separate counterparts, each of

which when so executed shall be deemed to be an original and all of which taken

together shall constitute one and the same agreement.




 




e.                       Headings.

 The headings in this Agreement are for

convenience of reference only and shall not limit or otherwise affect the

meaning hereof.




 




f.                         GOVERNING

LAW.  THIS AGREEMENT SHALL BE

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND

WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF.




 




g.                      Specific

Performance.  The parties hereto

acknowledge that there would be no adequate remedy at law if any party fails to

perform any of its obligations hereunder, and accordingly agree that each

party, in addition to any other remedy to which it may be entitled at law or in

equity, shall be entitled to compel specific performance of the obligations of

any other party under this Agreement in accordance with the terms and

conditions of this Agreement in any court of the United States or any State

thereof having jurisdiction.




 




h.                      Entire

Agreement.  This Agreement is

intended by the parties as a final expression of their agreement and intended

to be a complete and exclusive statement of the agreement and understanding of

the parties hereto in respect of the subject matter contained herein.  This Agreement supersedes all prior

agreements and understandings between the parties with respect to such subject

matter.




 




15





























 




IN WITNESS WHEREOF, each of the parties hereto has executed this

Agreement, or caused this Agreement to be duly executed on its behalf, as of

the date first written above.




 




Address:




 




	

  1800 East Deere Avenue


  Santa Ana, CA 92705


  	

  American Spectrum Realty,

  Inc. 


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  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


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  





 




 




16