Exhibit 99.3
KEYSTONE PROPERTY TRUST,
a Maryland Real Estate Investment Trust
SUBSCRIPTION DOCUMENTS
FOR
COMMON SHARES
Keystone Property Trust
000 Xxxx Xxxxx Corporate Center
Suite 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
NO OFFER OR SALE OF SECURITIES IS MADE IN ANY JURISDICTION WHERE THE
OFFER OR SALE WOULD BE UNLAWFUL.
Keystone Property Trust
000 Xxxx Xxxxx Corporate Center
Suite 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, 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").
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 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 Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 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:
2.1 AUTHORIZATION. This Agreement constitutes a valid and legally
binding obligation of such Purchaser, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies. Each such Purchaser represents that it has full power and authority to
enter into this Agreement.
2.2 RESTRICTIONS ON TRANSFER. Each Purchaser, to the extent it is an
"affiliate" of the Company (as described below), 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.
SECTION 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, the
performance of all obligations of the Company hereunder, 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 constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
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 REIT STATUS. (a) To the Company's knowledge, the Company, beginning
with its taxable year ended December 31, 1993 and through December 31, 1998 (i)
has been subject to taxation as a "real estate investment trust" (a "REIT")
within the meaning of the Internal Revenue Code of 1986, as amended
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(the "CODE"), and has complied with all requirements contained in the Code to
qualify as a REIT for such years, and (ii) has operated, and currently intends
to continue to operate, in such a manner as to qualify as a REIT for the tax
year ending December 31, 1999 and thereafter.
(b) To the Company's knowledge, the Company is a
"domestically-controlled" REIT within the meaning of Code Section 897(h)(4)(B)
and is not a "pension-held" REIT within the meaning of Section 856(h)(3)(D) of
the Code. To the Company's knowledge, other than an Excepted Holder (as defined
in the Company's Declaration of Trust, no person or entity which would be
treated as an "individual" for purposes of Section 542(a)(2) of the Code (as
modified by Section 856(h) of the Code) owns or would be considered to own
(taking into account the ownership attribution rules under Section 544 of the
Code, as modified by 856(h) of the Code) in excess of 9.8% of the value of the
outstanding equity interest in the Company.
3.4 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 STOCK EXCHANGE LISTING. The Shares shall have been approved for
listing on the AMEX.
4.5 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.
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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 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.
6.1 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.
6.2 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.
6.3 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.
6.4 ENTIRE AGREEMENT. This Agreement and all exhibits hereto including,
without limitation, the Investor Information Sheet, 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, and
whether arising in law or in equity or otherwise,
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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 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.
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.
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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 19th
day of October, 1999.
-----------------------------------------
Agreed and Accepted this
____ day of October, 1999.
KEYSTONE PROPERTY TRUST,
a Maryland real estate investment trust
By:
------------------------------------------
(Signature)
Name:
-----------------------------------------
(Print or Type)
Title:
------------------------------------------
(Print or Type)
EXHIBIT A
Name and Address Number of Common Shares
---------------- -----------------------
MS Special Funds Pte Ltd. 24,271
c/x Xxxxxx Xxxxxxx Xxxx Xxxxxx
Attn: Xxx Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
MS Real Estate Special Situations Inc. 8,149
c/x Xxxxxx Xxxxxxx Xxxx Xxxxxx
Attn: Xxx Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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-1
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-1
