<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 10, 1999
KEYSTONE PROPERTY TRUST
(Exact Name of Registrant as Specified in its Declaration of Trust
Maryland 1-12514 84-1246585
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
200 Four Falls Corporate Center
West Conshohocken, PA 19428
(Address of Principal Executive Offices)(Zip Code)
Registrant's telephone number, including area code:
(484) 530-1800
<PAGE>
ITEM 5. OTHER EVENTS
On December 10, 1999, we completed an issuance of an aggregate
of 89,655 common shares, par value $.001 per share, under our
existing shelf registration statement (Registration No.
333-58971) to Hudson Bay Partners II, L.P. Hudson Bay Partners
II, L.P. purchased its shares pursuant to a Subscription
Agreement dated December 10, 1999.
On December 29, 1999, we completed an issuance of an aggregate
of 499,552 common shares, par value $.001 per share, under our
existing shelf registration statement (Registration No.
333-58971) to (i) Hudson Bay Partners II, L.P. (one of our
principal shareholders), purchaser of an aggregate of 6,620
shares, (ii) Hudson Bay Partners, Inc. (the general partner of
Hudson Bay Partners II, L.P.), purchaser of an aggregate of
252 shares, (iii) Crescent Real Estate Equities Limited
Partnership (a limited partner of Hudson Bay Partners II,
L.P.), purchaser of 406,559 shares, (iv) Pond's Edge
Associates, LLC (a limited partner of Hudson Bay Partners II,
L.P.), purchaser of 23,915 shares, (v) David H. Lesser (one of
our trustees and a limited partner of Hudson Bay Partners II,
L.P.), purchaser of 47,317 shares, (vi) Robert F. Savage (a
limited partner of Hudson Bay Partners II, L.P.), purchaser of
11,889 shares and (vii) Russell Platt (one of our trustees),
purchaser of 3,000 shares. Each of the purchasers other than
Mr. Platt purchased their shares pursuant to a Subscription
Agreement dated September 27, 1999, as amended on October 29,
1999 and December 29, 1999, and Mr. Platt purchased his shares
pursuant to a Subscription Agreement dated December 29, 1999.
In addition, on December 29, 1999, we completed a transaction
with Jeffrey E. Kelter, who is one of our trustees and our
president and chief executive officer, in which Mr. Kelter
agreed to contribute warrants to purchase an aggregate of
250,000 units of limited partner interest in our operating
partnership, Keystone Operating Partnership, L.P., in exchange
for an aggregate of 106,552 units of limited partner interest
in Keystone Operating Partnership, and Hudson Bay Partners II,
L.P. agreed to contribute warrants to purchase an aggregate of
300,000 of our common shares in exchange for an aggregate of
125,103 units of limited partner interest in Keystone
Operating Partnership.
On January 3, 2000, we completed an issuance of an aggregate
of 68,966 common shares, par value $.001 per share, under our
existing shelf registration statement (Registration No.
333-58971) to Michael Falcone (one of our trustees). Mr.
Falcone purchased his shares pursuant to a Subscription
Agreement dated January 3, 2000.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) EXHIBITS
EXHIBIT NO.
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP
23.1 Consent of Piper Marbury Rudnick & Wolfe LLP
(included as part of Exhibit 5.1)
99.1 Form of Subscription Agreement by and among Keystone
Property Trust, Jeffrey E. Kelter and Hudson Bay
Partners II, L.P. (incorporated by reference to
Exhibit 99.1 of our Form 8-K, filed with the
Securities and Exchange Commission on October 12,
1999 (File 1-12514))
99.2 Form of Amendment No. 1 to Subscription Agreement by
and among Keystone Property Trust, Jeffrey E. Kelter
and Hudson Bay Partners II, L.P. (incorporated by
reference to Exhibit 99.1 of our Form 8-K, filed with
the Securities and Exchange Commission on November 4,
1999 (File 1-12514))
99.3 Form of Amendment No. 2 to Subscription Agreement by
and among Keystone Property Trust, Jeffrey E. Kelter,
Hudson Bay Partners II, L.P., Hudson Bay Partners,
Inc., Crescent Real Estate Equities Limited
Partnership, Pond's Edge Associates, LLC, David H.
Lesser and Robert F. Savage
99.4 Form of Subscription Agreement by and between
Keystone Property Trust and Russell Platt
99.5 Form of Subscription Agreement by and between
Keystone Property Trust and Michael Falcone
99.6 Form of Warrant Contribution Agreement
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
KEYSTONE PROPERTY TRUST
Date: January 5, 2000 By /s/ Timothy A. Peterson
---------------------------------
Timothy A. Peterson
Executive Vice President, Chief Financial
Officer and Secretary
<PAGE>
Exhibit 5.1
[LETTERHEAD OF PIPER MARBURY RUDNICK & WOLFE LLP]
January 3, 2000
KEYSTONE PROPERTY TRUST
200 Four Falls Corporate Center, Suite 208
West Conshohocken, Pennsylvania 19428
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special Maryland counsel to Keystone Property Trust, a
Maryland real estate investment trust (the "Trust"), as the successor to
American Real Estate Investment Corporation, a Maryland corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Post-Effective Amendment
No. 1 filed with the Securities and Exchange Commission (the "Commission") on
October 15, 1999 by the Trust to the Registration Statement on Form S-3
(Registration No. 333-58971) filed with the Commission on July 13, 1998 by the
Company, including the final prospectus dated July 10, 1998 included in the
Registration Statement (the "Prospectus"), for offering by the Trust from time
to time of up to $500,000,000 aggregate initial offering price (less $1,000,007
aggregate initial offering price heretofore issued by the Company) of: (i)
Common Shares, par value $.001 per share (the "Common Shares"); and (ii)
Preferred Shares or fractional Preferred Shares, par value $.001 per share (the
"Preferred Shares"), including the Preferred Shares that are convertible into
the Common Shares or other shares of beneficial interest of the Trust, which
Preferred Shares may be issued in the form of depositary shares (the "Depositary
Shares") evidenced by depositary receipts. The Common Shares, the Preferred
Shares, and the Depositary Shares, are collectively referred to as the
"Securities." The Registration Statement provides that the Securities may be
offered separately or together, in separate series, in amounts, at prices, and
on terms to be set forth in one or more supplements to the Prospectus (each a
"Prospectus Supplement"). This opinion supplements our opinion of July 10, 1998
filed as Exhibit 5.2 to the Registration Statement and is being provided at your
request in connection with the issuance from the shelf of an aggregate of
658,173 Common Shares (the "Subscription Shares") pursuant to Subscription
Agreements, as amended (collectively, the
<PAGE>
KEYSTONE PROPERTY TRUST
January 3, 2000
Page 2
"Subscription Agreements") between the Trust and the persons listed on SCHEDULE
A hereto.
In rendering the opinion expressed herein, we have reviewed originals
or copies, certified or otherwise identified to our satisfaction, of the
Registration Statement (including Post-Effective Amendment No. 1 thereto), the
Declaration of Trust, as amended and supplemented, and Bylaws of the Trust, the
Subscription Agreements, the Prospectus and the Prospectus Supplement relating
to the Subscription Shares, the proceedings of the Board of Trustees of the
Trust or a committee thereof relating to the organization of the Trust and to
the authorization and issuance of the Subscription Shares, a Certificate of the
Secretary of the Trust (the "Certificate"), and such other statutes,
certificates, instruments, and documents relating to the Trust and matters of
law as we have deemed necessary to the issuance of this opinion.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and the accuracy and completeness of all public
records reviewed by us. In making our examination of documents executed by
parties other than the Trust, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder, and we
have also assumed the due authorization by all requisite action, corporate or
other, and the valid execution and delivery by such parties of such documents
and the validity, binding effect and enforceability thereof with respect to such
parties. As to any facts materials to this opinion which we did not
independently establish or verify, we have relied solely upon the Certificate.
Based upon the foregoing, having regard for such legal considerations
as we deem relevant, and limited in all respects to applicable Maryland law, we
are of the opinion and advise you that:
(1) The Trust has been duly formed and is validly existing as
a real estate investment trust in good standing under the laws of the
State of Maryland.
(2) The Subscription Shares have been duly authorized and,
upon issuance thereof pursuant to the Subscription Agreements, will be
validly issued, fully paid, and non-assessable.
<PAGE>
KEYSTONE PROPERTY TRUST
January 3, 2000
Page 3
In addition to the qualifications set forth above, this opinion is
subject to the qualification that we express no opinion as to the laws of any
jurisdiction other than the State of Maryland. We assume that the issuance of
the Subscription Shares will not cause any person to violate any of the
Ownership Limit provisions of the Trust's Declaration of Trust, as amended and
supplemented (as defined in Article VIII thereof). This opinion concerns only
the effect of the laws (exclusive of the securities or "blue sky" laws and the
principles of conflict of laws) of the State of Maryland as currently in effect.
We assume no obligation to supplement this opinion if any applicable laws change
after the date hereof or if any facts or circumstances come to our attention
after the date hereof that might change this opinion. To the extent that any
documents referred to herein are governed by the law of a jurisdiction other
than Maryland, we have assumed that the laws of such jurisdiction are the same
as the laws of the State of Maryland. This opinion is limited to the matters set
forth herein, and no other opinion should be inferred beyond the matters
expressly stated.
We hereby consent to the filing of this opinion as an exhibit to the
Trust's Current Report on Form 8-K. In giving our consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Piper Marbury Rudnick & Wolfe LLP
<PAGE>
KEYSTONE PROPERTY TRUST
January 3, 2000
Page 4
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF
SUBSCRIPTION
SHARES
NAME OF SUBSCRIBER
<S> <C>
Hudson Bay Partners, L.P. 6,620
Hudson Bay Partners, Inc. 252
Crescent Real Estate Equities Limited Partnership 406,559
Pond's Edge Associates, LLC 23,915
David H. Lesser 47,317
Robert F. Savage 11,889
Michael J. Falcone 68,966
Russell C. Platt 3,000
--------
Sub Total 568,518
Hudson Bay Partners, L.P. (issued on December 10, 1999) 89,655
--------
Total 658,173
========
</TABLE>
<PAGE>
Exhibit 99.3
AMENDMENT NO. 2 TO SUBSCRIPTION AGREEMENT
This Amendment No. 2, dated as of December 29, 1999 (the "AMENDMENT"),
to the Subscription Agreement, dated as of September 27, 1999, as amended (the
"AGREEMENT"), by and among Keystone Property Trust (the "SELLER"), Jeffrey E.
Kelter ("KELTER") and Hudson Bay Partners II, L.P. ("HUDSON BAY") is entered
into by and among Seller, Kelter, Hudson Bay, Hudson Bay Partners, Inc.,
Crescent Real Estate Equities Limited Partnership, Pond's Edge Associates, LLC,
David H. Lesser and Robert F. Savage (each a "PURCHASER" and together the
"PURCHASERS"). All capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to such term in the Agreement.
RECITALS
WHEREAS, American Real Estate Investment Corporation, Kelter and Hudson
Bay entered into the Agreement dated as of September 27, 1999, as amended by
that certain Amendment No. 1 to Subscription Agreement dated as of October 29,
1999 (the "FIRST AMENDMENT");
WHEREAS, Kelter and Hudson Bay have already purchased common shares in
previous closings; and
WHEREAS, the parties desire to amend the Agreement whereby the
Purchasers agree to be bound by the terms and conditions of the Agreement.
NOW, THEREFORE, the Seller and Purchasers desire to amend the Agreement
as follows:
1. Exhibit A to the Agreement is hereby amended to read in its entirety
as follows:
EXHIBIT A
PURCHASERS
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF COMMON SHARES
<S> <C>
Jeffrey E. Kelter 586,207
40 Duck Pond Road
Glen Cove, NY 11542
Hudson Bay Partners II, L.P. 96,275
237 Park Avenue, Suite 900
New York, NY 10017
Hudson Bay Partners, Inc.. 252
237 Park Avenue, Suite 900
New York, NY 10017
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Crescent Real Estate Equities Limited Partnership 406,559
c/o Crescent Real Estate Equities, Ltd.
777 Main Street, Suite 2100
Fort Worth, TX 76102
Pond's Edge Associates, LLC 23,915
18 Pfizer Road
Bernardsville, NJ 07924
David H. Lesser 47,317
c/o Hudson Bay Partners, L.P.
237 Park Avenue, Suite 900
New York, NY 10017
Robert F. Savage
c/o Hudson Bay Partners, L.P. 11,889
237 Park Avenue, Suite 900
New York, NY 10017
</TABLE>
2. The Purchasers agree to be bound by the terms and conditions of the
Agreement, as amended by the First Amendment and this Amendment.
3. Except as otherwise provided herein, the Agreement shall remain
unmodified and in full force and effect.
4. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed therein.
5. This Amendment may be executed in one or more counterparts, each of
which together shall constitute one and the same agreement.
2
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed
as of the date first written above.
KEYSTONE PROPERTY TRUST
By:
-------------------------------------
Name:
Title:
HUDSON BAY PARTNERS II, L.P.
By: Hudson Bay Partners, Inc., its
General Partner
By:
-------------------------------------
Name: David H. Lesser
Title: President
HUDSON BAY PARTNERS, INC.
By:
-------------------------------------
Name: David H. Lesser
Title: President
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: , its
---------------------------------
General Partner
By:
-------------------------------------
Name:
Title:
POND'S EDGE ASSOCIATES, LLC
By: , its
---------------------------------
Managing Member
By:
-------------------------------------
Name:
Title:
3
<PAGE>
-------------------------------------
Jeffrey E. Kelter
-------------------------------------
David H. Lesser
-------------------------------------
Robert F. Savage
4
<PAGE>
Exhibit 99.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of December __, 1999, by and among Keystone Property Trust,
a Maryland real estate investment trust (the "COMPANY"), and the holders of
common shares listed on SCHEDULE A attached hereto (individually, a "HOLDER" and
collectively, the "HOLDERS").
WHEREAS, on the date hereof, each Holder is receiving such
number of common shares, par value $.001 per share (the "COMMON SHARES"), of the
Company set forth opposite such Holder's name on SCHEDULE A attached hereto (the
"REGISTRABLE SECURITIES");
WHEREAS, in connection therewith, the Company has agreed to
grant to each Holder the Registration Rights (as defined in Section 1 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:
SECTION 1. REGISTRATION RIGHTS
Each Holder shall be entitled to offer for sale pursuant to a
shelf registration statement the Registrable Securities, subject to the terms
and conditions set forth herein (the "REGISTRATION RIGHTS").
1.1. REGISTRATION RIGHTS.
(a) REGISTRATION PROCEDURE. The Company will cause to be
filed with the Securities and Exchange Commission (the "SEC") within
six (6) months of the date of this Agreement a shelf registration
statement and related prospectus (the "SHELF REGISTRATION STATEMENT")
that complies as to form in all material respects with applicable SEC
rules providing for the sale by each of the Holders of such Holder's
Registrable Securities, and agrees (subject to Section 1.2 hereof) to
use its commercially reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable. As used herein, "REGISTRATION STATEMENT" and "PROSPECTUS"
refer to the Shelf Registration Statement and related prospectus
(including any preliminary prospectus), including any documents
incorporated therein by reference. Each Holder agrees to provide in a
timely manner information regarding the proposed distribution by such
Holder of such Holder's Registrable Securities and such other
information reasonably requested by the Company in connection with the
preparation of and for inclusion in the Registration Statement. The
Company agrees (subject to Section 1.2 hereof) to use its commercially
reasonable best efforts to keep the Registration Statement effective
and free of material misstatements or omissions (including the
preparation and filing of any amendments and supplements necessary for
that purpose) until the earlier of (i) the date on which the Holders
consummate the sale of all of their Registrable Securities registered
under the Registration Statement, (ii) the date on which all of the
Registrable Securities are eligible for sale pursuant to Rule 144(k)
(or any successor provision) or in a single transaction pursuant to
Rule 144(e) (or any successor provision) under the Securities Act of
1933, as amended (the "SECURITIES ACT") or (iii) the second anniversary
of the date that the Registration Statement is declared effective. The
Company agrees to provide to each Holder a reasonable number of copies
of the final Shelf Registration Statement and the Prospectus and any
amendments or supplements thereto.
(b) OFFERS AND SALES. All offers and sales by each Holder
under the Registration Statement referred to in this Section 1.1 shall
be completed within the period during which the Registration Statement
is required to remain effective pursuant to Section 1.1(a), and,
<PAGE>
upon expiration of such period, no Holder will offer or sell any
Registrable Securities under the Registration Statement. If directed by
the Company, each Holder will return all undistributed copies of the
Prospectus in its possession upon the expiration of such period. Each
Holder shall promptly, but in any event no later than two (2) business
days after a sale by such Holder of Registrable Securities, notify the
Company of any sale or other transfer by such Holder of such Holder's
Registrable Securities and include in such notice the number of
Registrable Securities sold or transferred by such Holder.
1.2. SUSPENSION OF OFFERING.
(a) If the Company determines in its good faith judgment
that the filing of the Shelf Registration Statement under Section 1.1
hereof or the use of any Prospectus would materially impede, delay or
interfere with any pending material financing, acquisition or corporate
reorganization or other material corporate development involving the
Company or any of its subsidiaries, or require the disclosure of
important information which the Company has a bona fide business
purpose for preserving as confidential or the disclosure of which would
impede the Company's ability to consummate a significant transaction,
upon written notice of such determination by the Company, the rights of
each Holder to offer, sell or distribute any Registrable Securities
pursuant to the Shelf Registration Statement or to require the Company
to take action with respect to the registration or sale of any
Registrable Securities pursuant to the Shelf Registration Statement
(including any action contemplated by Section 1.1 hereof) will be
suspended until the date upon which the Company notifies each Holder in
writing that suspension of such rights for the grounds set forth in
this Section 1.2(a) is no longer necessary, but no such period shall
extend for longer than 90 days.
(b) In the case of the registration of any underwritten
public offering proposed by the Company (other than any registration by
the Company on Form S-8, or a successor or substantially similar form,
of (A) an employee stock option, stock purchase or compensation plan or
of securities issued or issuable pursuant to any such plan or (B) a
dividend reinvestment plan), each Holder agrees, if requested in
writing by the managing underwriter or underwriters administering such
offering, not to effect any offer, sale or distribution of Registrable
Securities (or any option or right to acquire Registrable Securities)
during the period commencing on the 7th day prior to the expected
effective date of the registration statement covering such underwritten
public offering or the date on which the proposed offering is expected
to commence (which date shall be stated in such notice) and ending on
the date specified by such managing underwriter in such written request
to such Holder, which date shall not be later than 90 days after such
expected date of effectiveness or the commencement of the offering, as
the case may be.
1.3. EXPENSES. The Company shall pay all expenses incident to
the performance by it of its registration obligations under this Section 1,
including (i) all stock exchange, SEC and state securities registration, listing
and filing fees, (ii) all expenses incurred in connection with the preparation,
printing and distributing of the Registration Statement and Prospectus, and
(iii) fees and disbursements of counsel for the Company and of the independent
public accountants of the Company. Each Holder shall be responsible for the
payment of any brokerage and sales commissions, fees and disbursements of such
Holder's counsel, and any transfer taxes relating to the sale or disposition of
such Holder's Registrable Securities.
1.4. QUALIFICATION. The Company agrees to use its commercially
reasonable efforts to register or qualify the Registrable Securities by the time
the Registration Statement is declared effective by the SEC under all applicable
state securities or "blue sky" laws of such jurisdictions as each Holder
2
<PAGE>
shall reasonably request in writing, to keep each such registration or
qualification effective during the period the Registration Statement is required
to be kept effective, and to do any and all other acts and things which may be
reasonably necessary or advisable to enable each Holder to consummate the
disposition in each such jurisdiction of the Registrable Securities owned by
such Holder; PROVIDED, HOWEVER, that the Company shall not be required to (x)
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 Section 1.4, (y) subject itself to taxation in any such
jurisdiction, or (z) submit to the general service of process in any such
jurisdiction.
1.5. NOTICES TO THE HOLDERS. Subject to Section 1.1(a) hereof,
during the period that the Company is required to keep the Registration
Statement effective, the Company will advise each Holder within a reasonable
time (i) when the Prospectus or any Prospectus supplement or post-effective
amendment thereto has been filed, and when the same has become effective, (ii)
of any request by the SEC for any amendments to, or issuance by the SEC of any
stop order with respect to the Registration Statement or any Prospectus or
amendment thereto, or (iii) that an amendment or supplement to the most recent
Prospectus or Prospectus supplement, as the case may be, is necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
SECTION 2. INDEMNIFICATION
2.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder as follows:
(a) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
pursuant to which the Registrable Securities were registered under the
Securities Act, including all documents incorporated therein by
reference, or 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 arising out of or based upon 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 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;
(b) 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; and
(c) 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 Section 2.1 does
not apply to any Holder with respect to any loss, liability, claim, damage or
expense to the extent arising out of (i) any untrue
3
<PAGE>
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Holder expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or (ii) such Holder's failure to deliver an amended or supplemental Prospectus
(provided such Holder was notified pursuant to Section 1.5, or otherwise, of the
need for an amended or supplemental Prospectus) if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
2.2 INDEMNIFICATION BY EACH HOLDER. Each Holder agrees to
indemnify and hold harmless the Company, and each of its trustees and officers
(including each trustee and officer of the Company who signed a Registration
Statement), and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), as follows:
(a) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
pursuant to which the Registrable Securities were registered under the
Securities Act, including all documents incorporated therein by
reference, or 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 arising out of or based upon 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 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;
(b) 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 Holder, which
consent shall not be unreasonably withheld; and
(c) 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 Section 2.2
shall only apply with respect to any loss, liability, claim, damage or expense
to the extent arising out of (i) 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 or on behalf of such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or (ii) such Holder's
failure to deliver an amended or supplemental Prospectus (provided such Holder
was notified pursuant to Section 1.5, or otherwise, of the need for an amended
or supplemental Prospectus) if such loss, liability, claim, damage or expense
would not have arisen had such delivery occurred. Notwithstanding the provisions
of this Section 2.2, no Holder shall be required to indemnify the Company, its
officers, trustees or control persons with respect to any amount in excess of
the amount of the total proceeds to such Holder from sales of such Holder's
Registrable Securities under the
4
<PAGE>
Registration Statement (after deducting the amounts already paid to the Company
by such Holder pursuant to this Section 2.2).
2.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. The indemnified
party shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in Section 2.1 or 2.2 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 or
defenses, and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to the indemnified party other than the indemnification
obligation provided under Section 2.1 or 2.2 above. 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 party, which approval shall not be unreasonably withheld;
PROVIDED, HOWEVER, that the indemnifying party will not settle any such action
or proceeding without the written consent of the indemnified party unless, as a
condition to such settlement, the indemnifying party secures the unconditional
release of the indemnified party; and PROVIDED FURTHER, that if the indemnified
party reasonably determines that a conflict of interest exists where it is
advisable for the indemnified party to be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to it 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
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the defense
of such action or proceeding as a result of the proviso to the preceding
sentence, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense and counsel for the indemnified party shall be
entitled to conduct the defense of the indemnified party, 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. If the indemnifying party
(i) is not so entitled to assume the defense of such action (ii) does not assume
such defense, after having received the notice referred to in the first sentence
of this paragraph, or (iii) fails to employ counsel that is reasonably
satisfactory to the indemnified party, after having received the notice referred
to in the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party. In such
event, however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld. If an indemnifying party is entitled to
assume, and assumes, the defense of such action or proceeding in accordance with
this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding.
2.4. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 2 is for any reason held to be unenforceable by the indemnified
party although applicable in accordance with its terms, the Company and each
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 each Holder, (i) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and such Holder on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative fault of but also
the relative benefits to the Company on the one hand and such Holder on the
other hand, from the purchase and sale of the Registrable Securities, 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. The relative benefits to the indemnifying party and
indemnified party shall be determined
5
<PAGE>
by reference to, among other things, the total proceeds received by the
indemnifying party and indemnified party in connection with the offering to
which such losses, claims, damages, liabilities or expenses relate. The relative
fault of the indemnifying party and indemnified party 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, the indemnifying party or the indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 2.4 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 the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.4, no Holder shall
be required to contribute any amount in excess of the amount of the total
proceeds to such Holder from sales of such Holder's Registrable Securities under
the Registration Statement.
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. For purposes of this Section 2.4, each trustee of
the Company, each officer of the Company who signed a 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.
SECTION 3. RULE 144 COMPLIANCE
The Company covenants that it will file the reports required
to be filed by the Company under the Securities Act and the Exchange Act so as
to enable the Holders to sell Registrable Securities, that have not otherwise
been subject to an effective Registration Statement, pursuant to Rule 144 under
the Securities Act. In connection with any sale, transfer or other disposition
by any Holder of any Registrable Securities pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend, and enable
certificates for such Registrable Securities to be for such number of shares and
registered in such names as such Holder may reasonably request at least ten (10)
business days prior to any sale of Registrable Securities hereunder.
SECTION 4. MISCELLANEOUS
4.1. INTEGRATION; AMENDMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior oral or
written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. Except as otherwise expressly provided
in this Agreement, no amendment, modification or discharge of this Agreement
shall be valid or binding unless set forth in writing and duly executed by the
Company and each Holder.
4.2. WAIVERS. No waiver by a party hereto shall be effective
unless made in a written instrument duly executed by the party against whom such
waiver is sought to be enforced, and only to the extent set forth in such
instrument. Neither the waiver by any of the parties hereto of a breach or a
default under any of the provisions of this Agreement, nor the failure of any of
the parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
6
<PAGE>
4.3. ASSIGNMENT. This Agreement and the rights granted
hereunder may not be assigned by any Holder without the written consent of the
Company.
4.4. BURDEN AND BENEFIT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and, subject to
Section 4.3 above, assigns.
4.5. NOTICES. All notices called for under this Agreement
shall be in writing and shall be deemed given upon receipt if delivered
personally or by facsimile transmission and followed promptly by mail, or mailed
by registered or certified mail (return receipt requested), postage prepaid, to
the parties at the addresses set forth on the signature page hereto, or to any
other address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner provided
in this Section 4.5 for the service of notices; PROVIDED, HOWEVER, that notices
of a change of address shall be effective only upon receipt thereof. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have
been given and received on the day it was received; PROVIDED, HOWEVER, that if
such day is not a business day then the notice shall be deemed to have been
given and received on the business day next following such day. Any notice sent
by facsimile transmission shall be deemed to have been given and received on the
business day next following the transmission.
4.6. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
the obligations undertaken by them hereunder are unique and 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 (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
4.7. GOVERNING LAW. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the choice of law rules thereof. The parties agree that
all disputes between any of them arising out of, connected with, related to, or
incidental to the relationship established between them in connection with this
Agreement, and whether arising in law or in equity or otherwise, shall be
resolved by the federal or state courts located in New York, New York. Nothing
herein shall affect the right of any party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the other in any other jurisdiction. In addition, each of the parties hereto
consents to submit to the personal jurisdiction of any federal or state court
located in the state of New York in the event that any dispute arises out of
this Agreement. The parties, for themselves and their respective affiliates,
hereby irrevocably waive all right to a trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to the actions of the parties or their respective affiliates pursuant
to this Agreement in the negotiation, administration, performance or enforcement
thereof.
4.8. HEADINGS. Section and subsection headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
4.9. PRONOUNS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or entity may require.
7
<PAGE>
4.10. EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signature of or on behalf of each party appears on
each counterpart, but it shall be sufficient that the signature of or on behalf
of each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties hereto.
4.11. SEVERABILITY. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
8
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
Address:
200 Four Falls Corporate Center
Suite 208 KEYSTONE PROPERTY TRUST
West Conhohocken, PA 19428
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Russell C. Platt
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF COMMON SHARES
<S> <C>
Russell C. Platt 3,000
c/o J.E. Robert Companies
630 Fifth Avenue, 23rd Floor
New York, NY 10111
</TABLE>
<PAGE>
Exhibit 99.5
EXECUTION COPY
KEYSTONE PROPERTY TRUST,
a Maryland Real Estate Investment Trust
SUBSCRIPTION DOCUMENTS
FOR
COMMON SHARES
Keystone Property Trust
200 Four Falls Corporate Center
Suite 208
West Conshohocken, PA 19428
NO OFFER OR SALE OF SECURITIES IS MADE IN ANY JURISDICTION WHERE THE
OFFER OR SALE WOULD BE UNLAWFUL.
<PAGE>
Keystone Property Trust
200 Four Falls Corporate Center
Suite 208
West Conshohocken, PA 19428
Attention: Timothy A. Peterson, Vice President
Ladies and Gentlemen:
This Agreement (the "AGREEMENT") is executed by each undersigned
purchaser in connection with the offer by Keystone Property Trust, a Maryland
real estate investment trust (the "COMPANY"), to sell, and the agreement by each
undersigned purchaser to purchase, common shares, par value $.001 per share, of
the Company (the "COMMON SHARES").
SECTION 1.
1.1 SUBSCRIPTION. Each undersigned purchaser hereby agrees to purchase
such number of Common Shares set forth opposite such undersigned purchaser's
name on EXHIBIT A (the "PURCHASERS") attached hereto (the "SHARES") at the
Closing (as defined below) at $14.50 per Common Share (the "PURCHASE PRICE"). In
respect of this subscription, each undersigned purchaser herewith delivers to
the Company a fully completed Investor Information Sheet attached as EXHIBIT B.
1.2 CLOSING. The purchase and sale of the Shares shall take place at
the offices of Rogers & Wells LLP, 200 Park Avenue, New York, New York, at 10:00
a.m., subject to satisfaction of the conditions set forth in Section 4 and
Section 5, on (i) the earlier to occur of (a) December 31, 1999 or (b) such
earlier date as the Company may elect, provided the Company gives the
undersigned purchasers at least four (4) prior days notice; or (ii) such other
time and place as the Company and the undersigned purchasers mutually agree (the
"CLOSING"). At the Closing the Company shall deliver to each undersigned
purchaser a certificate representing the Shares that such undersigned purchaser
is purchasing, registered in such name or names as such undersigned purchaser
shall designate at least two (2) business days prior to the date of the Closing,
against payment of the Purchase Price thereof in the manner contemplated by
Section 1.3.
1.3 PURCHASE PRICE. At the Closing, the payment of the Purchase Price
shall be, at the Company's option, by check or wire transfer in immediately
available funds.
1.4 TERMINATION. If the Closing does not occur on or before December
31, 1999, the Company may terminate this Agreement upon notice to the
undersigned, and thereafter there will be no liability or obligation on the part
of any undersigned purchaser or the Company (or any of their respective
officers, directors, employees, agents or other representatives or affiliates),
except that, notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to this Section 1.4, each
undersigned purchaser will remain liable to the Company for any breach of this
Agreement by such undersigned purchaser existing at the time of such
termination, and the Company will remain liable to each undersigned purchaser
for any breach of the Agreement by the Company existing at the time of such
termination, and the Company or any undersigned purchaser may seek such
remedies, including damages and fees of attorneys, against the other with
respect to such breach as are provided in this Agreement or as are otherwise
available at law or in equity.
SECTION 2.
INVESTOR REPRESENTATIONS AND WARRANTIES. Each Purchaser hereby
acknowledges, represents and warrants to, severally and not jointly, and agrees
with, the Company as follows:
<PAGE>
2.1 AUTHORIZATION. This Agreement and the Registration Rights Agreement
(as defined below) constitute valid and legally binding obligations of each
Purchaser, enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in the Registration Rights Agreement (as
defined below) may be limited by applicable federal or state securities laws.
Each Purchaser represents that it has full power and authority to enter into
this Agreement.
2.3 RESTRICTIONS ON TRANSFER. Each Purchaser is aware of the provisions
of Rule 144 promulgated under the Securities Act of 1933, as amended (the
"SECURITIES ACT") as currently in effect, pursuant to which the undersigned
purchaser may be able to sell the Shares, subject to certain exceptions, one
year after it receives such Shares so long as certain current public information
is available about the Company, the sale is through a broker in an unsolicited
"broker's transaction" and such Purchaser does not sell, in any three-month
period, more than the greater of 1% of the outstanding Common Shares or the
average weekly trading volume of the Common Shares for the four-week period
preceding the sale. Each Purchaser generally will be able to sell the Shares
without regard to any volume or other limitations discussed above beginning two
years after it receives the Shares, unless it is an affiliate of the Company
(I.E., a person controlling, controlled by or under common control with the
Company). Affiliates of the Company will continue to be subject to the volume
limitations on unregistered sales following the expiration of the two-year
period. The preceding description is a general summary of the restrictions of
Rule 144 as currently in effect, and each Purchaser should consult with his, her
or its own legal advisor to ensure compliance with all of the requirements of
applicable federal and state securities laws and regulations. In this
connection, each Purchaser understands Rule 144 may or may not be available for
the resale of the Shares and each Purchaser should consult an attorney with
regard to the availability of Rule 144. The Company is subject to the reporting
requirements under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"). Upon notice of issuance, the Shares will be listed for trading
on the American Stock Exchange (the "AMEX"). If all of the requirements of Rule
144 are not met, registration under the Securities Act or some other
registration exemption may be required for a disposition of the Shares.
SECTIN 3.
COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby
acknowledges, represents and warrants to, and agrees with, each Purchaser
follows:
3.1 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the adoption, authorization,
execution, filing (where applicable) and delivery of this Agreement and the
Registration Rights Agreement, the performance of all obligations of the Company
hereunder and thereunder, and the authorization, issuance (or reservation for
issuance), sale and delivery of the Common Shares being sold hereunder has been
taken or will be taken prior to the Closing. This Agreement and the Registration
Rights Agreement constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in the Registration Rights Agreement may be
limited by applicable federal or state securities laws.
2
<PAGE>
3.2 VALID ISSUANCE OF COMMON SHARES. The Common Shares that are being
purchased by each Purchaser hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable.
3.3 NO OTHER REPRESENTATIONS. The Company shall not be deemed to have
made to any Purchaser any representation or warranty other than as expressly
made by the Company in Section 3 hereof. Without limiting the generality of the
foregoing, and notwithstanding any otherwise express representations and
warranties made by the Company, in this Section 3, the Company makes no
representation or warranty to any undersigned purchaser with respect to any
projections, estimates or budgets heretofore delivered to or made available to
the undersigned of future revenues, expenses or expenditures or future results
of operations.
SECTION 4.
CONDITIONS OF PURCHASERS' OBLIGATIONS AT CLOSING. The obligations of
each Purchaser under Section 1.2 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 3 (other than those made as of a specified
date earlier than the date of Closing) shall be true and correct in all material
respects on and as of the date of the Closing with the same effect as though
such representation or warranty was made on and as of the date of such Closing,
and any representation or warranty made as of a specified date earlier than the
date of such Closing shall have been true and correct in all material respects
as of such earlier date.
4.2 PERFORMANCE. The Company shall have performed and complied with, in
all material respects, all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
4.3 QUALIFICATIONS. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
4.4 REGISTRATION RIGHTS AGREEMENT. The Company shall have executed the
Registration Rights Agreement, in substantially the form attached hereto as
EXHIBIT C (the "REGISTRATION RIGHTS AGREEMENT").
4.5 STOCK EXCHANGE LISTING. The Shares shall have been approved for
listing on the AMEX.
4.6 CERTIFICATES. Certificates representing the Shares in such name as
each Purchaser has designated pursuant to SECTION 1.2 hereof shall have been
delivered to each Purchaser.
SECTION 5.
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company to each Purchaser under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by each
Purchaser:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of each Purchaser contained in Section 2 (other than those made as of a
specified date earlier than the date of Closing) shall be true and correct in
all material respects on and as of the date of the Closing with the same effect
as though such representation or warranty was made on and as of the date of such
Closing, and any
3
<PAGE>
representation or warranty made as of a specified date earlier than the date of
such Closing shall have been true and correct in all material respects as of
such earlier date.
5.2 PAYMENT OF PURCHASE PRICE. Each Purchaser shall have executed and
delivered payment to the Company of the Purchase Price in the manner
contemplated by Section 1.3.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
SECTION 6.
MODIFICATION. Neither this Agreement nor any provisions hereof shall be
waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, change, discharge or termination is
sought.
6.1 NOTICES. All notices, payments, demands or other communications
given hereunder shall be deemed to have been duly given and received (i) upon
personal delivery, (ii) in the case of notices sent within, and for delivery
within, the United States, as of the date shown on the return receipt after
mailing by registered or certified mail, return receipt requested, postage
prepaid, or (iii) the second succeeding business day after deposit with Federal
Express or other equivalent air courier delivery service, unless the notice is
held or retained by the customs service, in which case the date shall be the
fifth succeeding business day after such deposit.
6.2 BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
6.4 ENTIRE AGREEMENT. This Agreement and all exhibits hereto including,
without limitation, the Investor Information Sheet, Accredited Investor
Questionnaire and Registration Rights Agreement, contain the entire agreement of
the parties with respect to this subscription, and there are no representations,
covenants or other agreements except as stated or referred to herein or therein.
6.5 ASSIGNABILITY. This Agreement is not transferable or assignable by
any undersigned purchaser.
6.6 APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State without giving effect to the
conflict of law provisions thereof. The parties agree that all disputes between
any of them arising out of, connected with, related to, or incidental to the
relationship established between them in connection with this Agreement or the
Registration Rights Agreement, and whether arising in law or in equity or
otherwise, shall be resolved by the federal or state courts located in New York,
New York. Nothing herein shall affect the right of any party to serve process in
any manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. In addition, each of the
parties hereto consents to submit to the personal jurisdiction of any federal or
state court located in the state of New York in the event that any dispute
arises out of this Agreement or the Registration Rights Agreement or any of the
transactions contemplated hereby or thereby. The parties, for themselves and
their respective affiliates, hereby irrevocably waive all right to a trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise)
4
<PAGE>
arising out of or relating to the actions of the parties or their respective
affiliates pursuant to this Agreement in the negotiation, administration,
performance or enforcement thereof.
6.7 GENDER. All pronouns contained herein and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the parties hereto may require.
6.8 COUNTERPARTS. This Agreement may be executed through the use of
separate signature pages or in counterparts, and each of such counterparts
shall, for all purposes, constitute one agreement binding on the parties hereto,
notwithstanding that the parties hereto are not signatories to the same
counterpart.
6.9 FURTHER ASSURANCES. Each Purchaser will, from time to time, execute
and deliver to the Company all such other and further instruments and documents
and take or cause to be taken all such other and further action as the Company
may reasonably request in order to effect the transactions contemplated by this
Agreement.
6.10 EXPENSES. All parties shall pay all costs and expenses which they
incur in connection with the negotiation, execution, delivery and performance of
this Agreement.
5
<PAGE>
KEYSTONE PROPERTY TRUST
SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
The undersigned purchaser, desiring to enter into this Subscription
Agreement for the subscription of the number of Shares indicated below, hereby
agrees to all of the terms and provisions of this Subscription Agreement and
agrees to be bound by all such terms and provisions.
The undersigned has executed this Subscription Agreement as of the ____
day of December, 1999.
Agreed and Accepted this
____ day of December, 1999
KEYSTONE PROPERTY TRUST,
a Maryland real estate investment trust
By:
------------------------------------
(Signature)
Name:
----------------------------------
(Print or Type)
Title:
----------------------------------
(Print or Type)
<PAGE>
EXHIBIT A
PURCHASERS
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF COMMON SHARES
<S> <C>
Michael J. Falcone 68,966
c/o Pioneer Development Company
250 South Clinton Street
Syracuse, NY 13202-2158
</TABLE>
A-1
<PAGE>
EXHIBIT B
INVESTOR INFORMATION SHEET
INSTRUCTIONS: PLEASE PRINT OR TYPE AND COMPLETE FULLY. If additional space is
needed for the response to any Item, attach a rider identifying the Item to
which the response is being made.
GENERAL INFORMATION
- ------------------------------ ----------------------------------------
Name of Purchaser Name of spouse (if married)
- ------------------------------ ----------------------------------------
Tax I.D. Number (if an entity) Social Security Number (if an individual)
- ------------------------------ ----------------------------------------
Date of Formation of Entity State of Formation
- ------------------------------
Telephone Number (Daytime)
- ------------------------------
Telephone Number (Evening)
Principal Business Address:
- --------------------------------------------------------------------------------
(P.O. Boxes CANNOT Be Accepted) (Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip)
- --------------------------------------------------------------------------------
Mailing Address (if different):
- --------------------------------------------------------------------------------
(P.O. Boxes CANNOT Be Accepted) (Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip)
B-I
<PAGE>
Exhibit 99.6
EXECUTION COPY
WARRANT CONTRIBUTION AGREEMENT
THIS WARRANT CONTRIBUTION AGREEMENT (this "AGREEMENT") is made and
entered into as of December __, 1999 by and between Keystone Operating
Partnership, L.P., a Delaware partnership (the "OPERATING PARTNERSHIP") and each
of the persons set forth on EXHIBIT A attached hereto (each a "CONTRIBUTOR," and
together, the "Contributors").
WHEREAS, the Contributors are the owners of warrants (the "WARRANTS")
to purchase an aggregate of 300,000 shares of common stock, par value $.001 per
share, of American Real Estate Investment Corporation (the "COMMON STOCK"), and
warrants to purchase an aggregate of 375,000 units of limited partnership
interest ("OP Units") in the Operating Partnership.
WHEREAS, each Contributor desires to contribute to the Operating
Partnership such Contributor's Warrants in consideration for the issuance by the
Operating Partnership of such number of OP Units set forth opposite each
Contributor's name on EXHIBIT A, and the Operating Partnership is willing to
enter into such transaction on the terms and subject to the conditions set forth
in this Agreement (such transactions being hereinafter referred to as the
"CONTRIBUTION");
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:
ARTICLE I
CONTRIBUTION OF WARRANTS FOR OP UNITS
Section 1.1. CONTRIBUTION OF WARRANTS FOR OP UNITS. Upon the terms and
subject to the conditions of this Agreement, each Contributor hereby agrees to
contribute to the Operating Partnership such number of Warrants set forth
opposite such Contributor's name on EXHIBIT A and the Operating Partnership
hereby agrees to issue to each Contributor such number of OP Units set forth
opposite such Contributor's name on EXHIBIT A.
Section 1.2. CLOSING. The Contribution shall take place at the offices
of Rogers & Wells LLP, 200 Park Avenue, New York, New York, at 10:00 a.m.
subject to satisfaction of the conditions set forth in Article III, on (i)
December 23, 1999 or (ii) such other time and place as the Operating Partnership
and the Contributors mutually agree (the "CLOSING"). At the Closing:
(a) Each Contributor shall deliver to the Operating Partnership its
Warrants, in genuine and unaltered form, accompanied by such instruments of
transfer or cancellation as may be requested by the Operating Partnership and an
executed OP Unit Recipient Agreement.
(b) The Operating Partnership shall deliver to each Contributor a
countersigned OP Unit Recipient Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of the Contributors, severally and not jointly and severally,
represents and warrants to the Operating Partnership that as of the date hereof
and as of the Closing:
Section 2.1. AUTHORITY. Each Contributor has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each Contributor has taken all action
necessary for the execution and delivery by such Contributor of this Agreement
and for the consummation of the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of each Contributor enforceable
against each Contributor in accordance with its terms.
Section 2.2. TITLE TO WARRANTS. Each of the Contributors owns such
number of Warrants set forth opposite his name on EXHIBIT A beneficially and of
record, free and clear of all claims, liens, mortgages, pledges, security
interests, charges and other encumbrances (collectively, "LIENS"), and such
Warrants constitute all warrants of the Operating Partnership and/or American
Real Estate Investment Corporation or Keystone Property Trust held by such
Contributor. At the Closing, each Contributor shall transfer to the Operating
Partnership all of such Contributor's rights, title and interest in and to, and
good and valid title to, such Warrants set forth opposite such Contributor's
name on EXHIBIT A, free and clear of all Liens.
ARTICLE III
CLOSING CONDITIONS
Section 3.1. CONDITIONS OF CONTRIBUTORS' OBLIGATIONS AT CLOSING. The
obligations of each Contributor under Section 1.2 of this Agreement are subject
to the fulfillment on or before the Closing of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by each Contributor in this Agreement shall be true and correct
in all material respects on and as of the Closing as though such representation
or warranty was made on and as of the Closing.
(b) PERFORMANCE. The Operating Partnership shall have performed and
complied with, in all material respects, all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by them on or before the Closing.
(c) QUALIFICATIONS. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance of the OP Units
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
(d) OP UNIT RECIPIENT AGREEMENT. The Operating Partnership shall have
delivered an executed OP Unit Recipient Agreement to each Contributor.
Section 3.2. CONDITIONS OF THE OPERATING PARTNERSHIP'S OBLIGATIONS AT
CLOSING. The obligations of the Operating Partnership to each Contributor under
this Agreement are subject to the fulfillment on or before the Closing of each
of the following conditions by each Contributor:
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(a) SURRENDER OF WARRANTS. Each Contributor shall have delivered to the
Operating Partnership its Warrants, in genuine and unaltered form, accompanied
by such instruments of transfer or cancellation as may be requested by the
Operating Partnership.
(b) OP UNIT RECIPIENT AGREEMENT. Each Contributor shall have delivered
a fully completed and executed OP Unit Recipient Agreement to the Operating
Partnership.
(c) QUALIFICATIONS. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance of the OP Units
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
ARTICLE IV
MISCELLANEOUS
Section 4.1. MODIFICATION. Neither this Agreement nor any provisions
hereof shall be waived, modified, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
Section 4.2. NOTICES. All notices, payments, demands or other
communications given hereunder shall be deemed to have been duly given and
received (i) upon personal delivery, (ii) in the case of notices sent within,
and for delivery within, the United States, as of the date shown on the return
receipt after mailing by registered or certified mail, return receipt requested,
postage prepaid, or (iii) the second succeeding business day after deposit with
Federal Express or other equivalent air courier delivery service, unless the
notice is held or retained by the customs service, in which case the date shall
be the fifth succeeding business day after such deposit.
Section 4.3. BINDING EFFECT. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
permitted assigns.
Section 4.4. ENTIRE AGREEMENT. This Agreement and all exhibits hereto
including, without limitation, the OP Unit Recipient Agreement, contain the
entire agreement of the parties with respect to this Contribution, and there are
no representations, covenants or other agreements except as stated or referred
to herein or therein.
Section 4.5. ASSIGNABILITY. This Agreement is not transferable or
assignable by any Contributor.
Section 4.6. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State without giving
effect to the conflict of law provisions thereof. The parties agree that all
disputes between any of them arising out of, connected with, related to, or
incidental to the relationship established between them in connection with this
Agreement or the Registration Rights Agreement, and whether arising in law or in
equity or otherwise, shall be resolved by the federal or state courts located in
New York, New York. Nothing herein shall affect the right of any party to serve
process in any manner permitted by law or to commence legal proceedings or
otherwise proceed against the other in any other jurisdiction. In addition, each
of the parties hereto consents to submit to the personal jurisdiction of any
federal or state court located in the state of New York in the event that any
dispute arises out of this Agreement or any of the transactions contemplated
hereby. The parties, for themselves
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and their respective affiliates, hereby irrevocably waive all right to a trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to the actions of the parties or
their respective affiliates pursuant to this Agreement in the negotiation,
administration, performance or enforcement thereof.
Section 4.7. GENDER. All pronouns contained herein and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the parties hereto may require.
Section 4.8. COUNTERPARTS. This Agreement may be executed through the
use of separate signature pages or in counterparts, and each of such
counterparts shall, for all purposes, constitute one agreement binding on the
parties hereto, notwithstanding that the parties hereto are not signatories to
the same counterpart.
Section 4.9. FURTHER ASSURANCES. Each Contributor will, from time to
time, execute and deliver to the Operating Partnership all such other and
further instruments and documents and take or cause to be taken all such other
and further action as the Operating Partnership may reasonably request in order
to effect the transactions contemplated by this Agreement.
Section 4.10. EXPENSES. All parties shall pay all costs and expenses
which they incur in connection with the negotiation, execution, delivery and
performance of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective authorized officers or representatives as of the
day and year first written above.
KEYSTONE OPERATING PARTNERSHIP, L.P.
By: Keystone Property Trust, its General Partner
By:
---------------------------------------------
Name:
Title:
---------------------------------------------
Jeffrey E. Kelter
---------------------------------------------
David F. McBride
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HUDSON BAY PARTNERS II, L.P.
By: Hudson Bay Partners, Inc., its
General Partner
By:
---------------------------------------
Name: David H. Lesser
Title: President
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