EXHIBIT 99.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
KEYSTONE PROPERTY TRUST
(as "Buyer")
AND
AEW TARGETED SECURITIES FUND, L.P.
(as "Seller")
DATED AS OF SEPTEMBER 9, 2002
PURCHASE AND SALE AGREEMENT, dated as of September 9, 2002 (the
"Agreement") by and between AEW Targeted Securities Fund, L.P., a Delaware
limited partnership (the "Seller") and Keystone Property Trust, a Maryland real
estate investment trust (the "Buyer").
WHEREAS, the Seller desires to sell and transfer to the Buyer 800,000
shares of Series A Convertible Preferred Stock, par value $.001 per share, and
200,000 shares of Series C Convertible Preferred Stock, par value $.001 per
share, to be received by the Seller (the "Shares") and the Buyer wishes to
acquire the Shares on the terms set forth in this Agreement.
THEREFORE, the parties hereto agree as follows:
1. SALE AND PURCHASE OF THE SHARES. The Seller hereby agrees to assign,
sell, convey and transfer to the Buyer on the Closing Date (as defined below)
all right, title and interest of the Seller in and to the Shares and the Buyer,
in reliance on the representations and warranties set forth herein, agrees to
pay to the Seller the Purchase Price (as defined herein). On the Closing Date
and pursuant to instructions from American Stock Transfer & Trust Company, each
of the Seller and the Buyer shall instruct American Stock Transfer & Trust
Company to record the transfer to the Buyer of the certificated Shares owned by
the Seller and the Seller shall deliver to American Stock Transfer & Trust
Company the certificates for the Shares, duly endorsed for transfer.
2. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place on the date hereof and the Seller will assign, sell,
convey and transfer to Buyer in accordance with Section 1 above all right, title
and interest of the Seller in and to the Shares for an aggregate purchase price
of $25,741,458.46 (the "Purchase Price"). Buyer shall pay to the Seller the
Purchase Price in immediately available funds by wire transfer on the Closing
Date to an account designated by the Seller in writing at least two business
days prior to the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Buyer that each of the following statements is
true and correct as of the date hereof and will be true and correct as of the
Closing Date as if made on such date.
(a) GOOD STANDING. The Seller is duly organized, validly existing and in
good standing in the state of its organization, with full corporate power and
authority to carry on its business as it is now operated and carried on by it.
(b) DUE AUTHORIZATION. The Seller has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Seller and constitutes a
valid and binding agreement of the Seller enforceable against the Seller in
accordance with its terms.
(c) ABSENCE OF DEFAULTS AND CONFLICTS. The execution, delivery and
performance of this Agreement by the Seller and the consummation of the
transactions contemplated hereby do not and will not violate or be in conflict
with, or constitute a breach of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under the terms of any law,
regulation, order, judgment, instrument, contract, license or other agreement to
which the Seller is a party or by which the Seller or its assets are bound or
which would prevent the consummation of this transaction, and no consent or
approval of any third party or any government, state, province, county or other
political subdivision thereof, or any entity exercising executive, legislative,
judicial, regulatory or administrative function of,
or pertaining to, governing (collectively, "Governmental Authority") is
necessary in order to permit the Seller to execute and deliver this Agreement
and perform the transactions contemplated hereby.
(d) TITLE TO INTEREST. The Seller will convey to the Buyer good, valid and
marketable title to the Shares free and clear of all liens, pledges, claims,
security interests, encumbrances, charges, restrictions or limitations of any
kind, whether arising by agreement, operation of law or otherwise (collectively,
"Liens").
(e) BROKERS. The Seller has not employed any broker or finder or incurred
any liability for any brokerage fees or commissions in connection with the
transactions contemplated by this Agreement.
(f) REGULATION M. The Seller acknowledges that neither the Buyer nor any of
its agents or affiliates solicited the sale of the Shares by the Seller and that
the transactions contemplated hereby qualify as an "unsolicited purchase" under
Rule 102 of Regulation M promulgated under the rules and regulations of the
Securities Act of 1933, as amended.
(g) OWNERSHIP LIMIT WAIVER. The Seller acknowledges that any waiver of the
ownership limit (as defined in the Buyer's charter) previously given to the
Seller or its affiliates is of no further force and effect.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents
and warrants to the Seller that each of the following statements is true and
correct as of the date hereof and will be true and correct as of the Closing
Date as if made on such date.
(a) GOOD STANDING AND DUE AUTHORIZATION. The Buyer is duly organized,
validly existing and in good standing in the state of its incorporation, with
full trust power and authority to carry on its business as it is now operated
and carried on by it. The Buyer has all requisite trust power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Buyer and constitutes a valid and
binding agreement of the Buyer enforceable against the Buyer in accordance with
its terms.
(b) ABSENCE OF DEFAULTS AND CONFLICTS. The execution, delivery and
performance of this Agreement by the Buyer and the consummation of the
transactions contemplated hereby do not and will not violate or be in conflict
with, or constitute a breach of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under the terms of any law,
regulation, order, judgment, instrument, contract, license or other agreement to
which the Buyer is a party or by which the Buyer or its assets are bound or
which would prevent the consummation of this transaction, and no consent or
approval of any Governmental Authority is necessary in order to permit the Buyer
to execute and deliver this Agreement and perform the transactions contemplated
hereby.
(c) BROKERS. Except as described in its Prospectus Supplement, dated
September 4, 2002, as filed with the Securities and Exchange Commission on
September 6, 2002, the Buyer has not employed any broker or finder or incurred
any liability for any brokerage fees or commissions in connection with the
transactions contemplated by this Agreement.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained or made in, or in connection with, this Agreement shall
survive the purchase and sale of the Shares, notwithstanding any investigation
conducted with respect thereto or any knowledge acquired as to the accuracy or
inaccuracy of any such representation or warranty.
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6. INDEMNIFICATION.
(a) The Seller agrees to defend, indemnify and hold harmless the Buyer, and
its trustees, officers, employees, agents and any of their successors and
assigns, from and against any and all losses, damages, claims, suits,
proceedings, liabilities, costs and expenses (including settlement costs,
interest, penalties, reasonable attorney's fees and any reasonable legal or
other expenses for investigation or defense of any actions or threatened
actions) (collectively, "Losses" or "Claims," as the context requires) which may
be imposed, sustained, incurred or suffered or asserted as a result of, relating
to or arising out of (i) the breach of any representation or warranty of the
Seller contained in this Agreement; (ii) any failure by the Seller to perform
any covenant, agreement or obligation of the Seller contained in this Agreement;
and (iii) the Seller's ownership of the Shares prior to the Closing Date,
including liabilities for taxes, charges, fees and periodic deposits (including
interest and penalties) determined to have been due to any Governmental
Authority during the period that such Seller owned or held the Shares.
(b) The Buyer agrees to defend, indemnify and hold harmless the Seller and
its officers, directors, employees, partners, agents and any of their successors
and assigns from and against any and all Losses or Claims which may be imposed,
sustained, incurred or suffered or asserted as a result of, relating to or
arising out of (i) the breach of any representation or warranty of the Buyer
contained in this Agreement; and (ii) any failure by the Buyer to perform any
covenant, agreement or obligation of the Buyer contained in this Agreement.
7. CONFIDENTIALITY. All information furnished in writing by one party to
this Agreement to another party to this Agreement in connection with this
Agreement and the transactions contemplated hereby shall be kept confidential by
the receiving party and shall be used by the receiving party only in connection
with this Agreement and the transactions contemplated hereby, except to the
extent that such information (i) is information which the receiving party can
demonstrate was already known to the receiving party when received; (ii)
thereafter becomes lawfully obtainable from other sources through no act or
failure to act on the part of the receiving party; or (iii) is required to be
disclosed pursuant to applicable law, rules or regulations (including the
Securities Exchange Act of 1934, as amended and the rules and regulations
thereunder or the rules of any stock exchange), provided, that the receiving
party shall disclose only so much of the confidential information as is legally
required.
8. MISCELLANEOUS.
(a) All fees and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including all fees of counsel and
accountants, shall be paid by the party incurring the same.
All notices, requests, demands and other communications required or permitted
under this Agreement shall be in writing and shall be delivered personally, sent
facsimile transmission, or sent next-day delivery via Federal Express or a
similar overnight courier. All communications to the Seller hereunder should be
sent to AEW Capital Management, L.P., Attn: Xxxxxx X. Xxxxxxx, telephone
000-000-0000, facsimile: 000-000-0000, or to such other person or address as the
Seller shall furnish to the Buyer in writing. All communications to the Buyer
hereunder should be sent to Keystone Property Trust, 200 Four Falls Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxx X. Xxxxx,
General Counsel, telephone: (000) 000-0000, facsimile: (000) 000-0000, with a
copy to Xxxxxxxx Chance US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxx
X. Xxxxxxxxx, Esq., telephone: (000) 000-0000, facsimile: (000) 000-0000.
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A notice shall be deemed given for purposes of this Agreement (i) on the
date of delivery, if delivered personally or sent by facsimile transmission, and
(ii) on the first business day following the date of dispatch if sent next-day
delivery via Federal Express or similar a overnight courier. Any party may
change the address to which notices are to be sent by giving written notice of
such change of address to the other parties in the manner above provided for
giving notice.
(b) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICTS OR CHOICE OF LAWS
PROVISIONS THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF
ANY OTHER JURISDICTION).
(c) This Agreement may not be amended, modified, superseded, cancelled,
renewed or extended except by a written instrument signed by both the Buyer and
the Seller; provided, that the Buyer may assign its rights under this Agreement
to the Operating Partnership.
(d) If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and inoperative to the extent
it may conflict with any applicable statute or rule of law and shall be deemed
modified to conform with such statute or rule of law and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or the
rights of the parties hereto.
(e) This Agreement may be executed simultaneously in two or more identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS
AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
(g) Each party hereto further agrees that, at any time and from time to
time, upon the written request of the other party hereto, it will execute and
deliver such further instruments and do such further acts and things reasonably
necessary, desirable or proper as the requesting party may reasonably request in
order to effect the purposes of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, acting their
duly authorized agents, as of the date first above written.
KEYSTONE PROPERTY TRUST
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
AEW TARGETED SECURITIES FUND, L.P.
By: AEW TSF, L.L.C.
By: AEW TSF, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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