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 Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 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.
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:
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Name:
Title:
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Xxxxxxx X. Xxxxxx
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Xxxxx X. XxXxxxx
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XXXXXX BAY PARTNERS II, L.P.
By: Xxxxxx Bay Partners, Inc., its
General Partner
By:
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Name: Xxxxx X. Xxxxxx
Title: President
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