EXHIBIT 99.7
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
January 2, 2001, is among ProLogis Logistics Services Incorporated, a Delaware
corporation (the "Company"), SCI Logistics Holdings LLC, a Delaware limited
liability company ("LLC"), CSI/Frigo LLC, a Delaware limited liability company
("Purchaser"), and, solely for purposes of Sections 2 and 13 hereof, ProLogis
Trust, a Maryland real estate investment trust ("ProLogis").
WHEREAS, LLC owns 100 shares of Common Stock, $1.00 par value per
share, of the Company (the "Common Shares"), constituting all the issued and
outstanding Common Shares; and
WHEREAS, ProLogis owns all the issued and outstanding preferred shares,
$1.00 par value per share (the "Preferred Shares"), of the Company;
WHEREAS, LLC desires to sell and Purchaser desires to purchase the
Common Shares subject to the terms described herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions herein set forth,
Purchaser agrees to purchase and LLC agrees to sell on the Closing Date (as
hereinafter defined) the Common Shares, free and clear of all liens,
encumbrances, claims and security interests, for $2,144,000 (the "Purchase
Price").
2. Taxable Income True Up. Purchaser shall pay to LLC as additional purchase
price by not later than October 1, 2001, or if it has been liquidated by that
date, to the former Managers of LLC, an amount in cash equal to 25% of any "Net
Taxable Income" (as defined below) of LLC for the tax year ended December 31,
2000. Net Taxable Income shall mean the excess of ordinary taxable income
(exclusive of distributions received by the Managers from the Company in 2000)
over ordinary taxable losses of LLC for the tax year ended December 31, 2000.
ProLogis hereby unconditionally guarantees the payment of any amount payable to
LLC or the Managers under this Section 2.
3. Release. Subject to the terms and conditions herein set forth, LLC and each
of its Managers hereby consents to the execution and delivery by LLC of this
Agreement and waives any right of first offer or right of first refusal it or
they may have with respect to the Common Shares to be sold pursuant to this
Agreement.
4. Representations and Warranties of the Company. The Company hereby represents
and warrants to LLC and ProLogis as follows:
(a) Due Organization. The Company is duly organized and validly
existing as a corporation under the laws of the State of
Delaware.
(b) Authorization. The Company has the requisite power to enter
into this Agreement and to carry out its obligations
hereunder. This Agreement has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally
or by general equitable principles. Neither the execution and
delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor compliance with the
terms, conditions or provisions of this Agreement will be a
violation of any of the terms, conditions or provisions of the
Company's Certificate of Incorporation or of any material
agreement or instrument to which it is a party or by which it
or its material properties may be bound, or constitute a
default or create a right of termination or acceleration
thereunder.
(c) Financial Statements. The consolidated financial statements of
the Company as at and for the period ending September 30,
2000, a copy of which is attached hereto as Exhibit A, are
true, complete and correct in all material respects and fairly
present the financial condition and results of operations of
the Company and its consolidated subsidiaries at such date and
for such period and were prepared in accordance with U.S.
generally accepted accounting principles consistently applied
during the periods involved (except as may be indicated in the
notes thereto and except for normal recurring adjustments,
none of which are material).
(d) Brokers. The Company has not employed any broker, agent or
finder, or incurred any liability for any brokerage fees,
commissions or finder's fees in connection with the
transactions contemplated by this Agreement.
5. Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to the Company and LLC as follows:
(a) Due Organization. Purchaser is duly organized and validly
existing as a limited liability company under the laws of the
State of Delaware.
(b) Authorization. Purchaser has the requisite power to enter into
this Agreement and to carry out its obligations hereunder.
This Agreement has been duly authorized by all necessary
action on the part of Purchaser and has been duly executed and
delivered by Purchaser and constitutes a valid and binding
agreement of Purchaser
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enforceable against Purchaser in accordance with its terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally
or by general equitable principles. Neither the execution and
delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor compliance with the
terms, conditions or provisions of this Agreement will be a
violation of any of the terms, conditions or provisions or
Purchaser's Limited Liability Company Agreement or Certificate
of Formation or bylaws or of any material agreement or
instrument to which it is a party or by which it or its
material properties may be bound, or constitute a default or
create a right of termination or acceleration thereunder.
(c) Brokers. Purchaser has not employed any broker, agent or
finder, or incurred any liability for any brokerage fees,
commissions or finder's fees in connection with transactions
contemplated by this Agreement.
6. Representations and Warranties of LLC. LLC hereby represents and warrants to
Purchaser, the Company and ProLogis as follows:
(a) Due Organization. LLC is duly organized, validly existing and
in good standing as a limited liability company under the laws
of the State of Delaware.
(b) Authorization. LLC has the requisite power to enter into this
Agreement and to carry out its obligations hereunder. This
Agreement has been duly authorized by all necessary action on
the part of LLC, and this Agreement has been duly executed and
delivered by LLC and constitutes a valid and binding agreement
of LLC enforceable against LLC in accordance with its terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally
or by general equitable principles. Neither the execution and
delivery of this Agreement, consummation of the transactions
contemplated hereby, nor compliance with the terms, conditions
or provisions of this Agreement, will be a violation of any of
the terms, conditions or provisions of LLC's Limited Liability
Company Agreement or Certificate of Formation, or of any
material agreement or instrument to which LLC is a party or by
which LLC or any of its material properties may be bound, or
constitute a default or create a right of termination or
acceleration thereunder.
(c) Title. LLC owns the Common Shares free and clear of all liens,
encumbrances, claims and security interests, but subject to
the Amended and Restated Option Agreement dated as of March 9,
1999, by and among Security Capital Group Incorporated, a
Maryland corporation, SC Realty Incorporated, a Nevada
corporation, LLC, ProLogis, the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III.
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(d) Access to Information. LLC has been supplied with and has
reviewed the most recent financial information of the Company,
and has had access to such information as it deems relevant to
entering into the Agreement and has had the opportunity to
inquire of management of the Company and ProLogis as to any of
such information.
(e) Brokers. LLC has not employed any broker, agent or finder, or
incurred any liability for any brokerage fees, commissions or
finder's fees in connection with the transactions contemplated
by this Agreement.
7. Public Announcements. The parties hereto will consult with each other before
issuing, and provide each other with the reasonable opportunity to review and
comment upon, any press release or otherwise making any public statements with
respect to the transactions contemplated by this Agreement, and shall not issue
any such press release or make any such public statement without the consent of
the other parties (which consent shall not be unreasonably withheld), except as
may be required by applicable law, by court process or by obligations pursuant
to any listing agreement with any national securities exchange or transaction
reporting system so long as the other party is notified promptly by the
disclosing party of such press release or public statement.
8. Closing. The purchase and sale of the Ordinary Shares (the "Closing") shall
occur at 9:00 a.m. (Mountain time) on January 5, 2001 (the "Closing Date"). The
Closing shall take place at the offices of ProLogis in Aurora, Colorado, at
which time the parties shall make the deliveries described below. At the
Closing, in addition to any other documents required to be delivered under this
Agreement, the parties hereto shall deliver the documents described below:
(a) Deliveries by Purchaser. At the Closing, Purchaser shall
deliver or cause to be delivered the following to LLC:
(1) the Purchase Price by wire transfer of immediately
available funds to the account specified by LLC;
(2) a certificate, dated the Closing Date, of the Manager
of Purchaser certifying that, as of such date, the
representation and warranties of Purchaser are
accurate, true and correct with the same force and
effect as though made on and as of such date; and
(3) a certificate of Purchaser's secretary certifying
resolutions of the Manager of Purchaser approving
this Agreement and the transactions contemplated
hereby (together with incumbency and signature
certificates regarding the officer(s) signing on
behalf of Purchaser.
(b) Deliveries by the Company. At the Closing, the Company shall
deliver or cause to be delivered the following:
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(1) a certificate, dated the Closing Date, of an
executive officer of the Company, certifying that, as
of such date, the representations and warranties of
the Company are accurate, true and correct with the
same force and effect as though made on and as of
such date; and
(2) a certificate of the Company's secretary, certifying
resolutions of the board of directors of the Company,
approving this Agreement and the transactions
contemplated hereby (together with incumbency and
signature certificates regarding the officer(s)
signing on behalf of the Company).
(c) Deliveries by LLC. At the Closing, LLC shall deliver or cause
to be delivered the following to Purchaser:
(1) a certificate or certificates representing the 100
Common Shares, which certificates shall be duly
endorsed in blank or accompanied by duly executed
stock powers;
(2) the resignations of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. from the Company's board of
directors and any other position such persons may
hold with the Company;
(3) a certificate, dated the Closing Date, of the
Managers of LLC certifying that, as of such date, to
the best of their knowledge, the representations and
warranties of LLC are accurate, true and correct with
the same force and effect as though made on and as of
such date;
(4) a certificate of LLC's Managers certifying
resolutions of the Managers of LLC and action of the
members of LLC approving this Agreement and the
transactions contemplated hereby (together with an
incumbency and signature certificate regarding the
Manager(s) of LLC).
9. Conditions to the Obligations of Purchaser and the Company. The obligations
of Purchaser and the Company under this Agreement are subject to the fulfillment
of each of the following conditions:
(a) Performance. LLC shall have performed and complied in all
material respects with all agreements, covenants, obligations
and conditions required by this Agreement to be performed or
complied with by it.
(b) Injunctions. No preliminary or permanent injunction or other
final order by any United States federal or state court or
Luxembourg court shall have been issued which prevents the
consummation of the transactions contemplated hereby.
10. Conditions to the Obligations of LLC. The obligations of LLC under this
Agreement are subject to the fulfillment of each of the following conditions:
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(a) Performance. Purchaser and the Company shall have performed
and complied in all material respects with all agreements,
covenants, obligations and conditions required by this
Agreement to be performed or complied with by them.
(b) Injunctions. No preliminary or permanent injunction or other
final order by any United Stated federal or state court shall
have been issued which prevents the consummation of the
transactions contemplated hereby.
11. Survival. The representations and warranties of the parties shall survive
the Closing for a period of one year.
12. Release and Waiver. Effective upon the Closing of the transactions
contemplated hereby, except for any claims which may arise under this Agreement
or for indemnification or advancement of expenses under any indemnification
agreements of the Company in favor of any of the members or Managers of LLC,
each party irrevocably waives, releases, remises, quitclaims, discharges and
covenants not to ▇▇▇ the other parties, their respective predecessors,
subsidiaries, parents, and affiliates, and their respective past, present, and
future officers, directors, partners, members, managers, agents, employees,
attorneys, and each of them regarding any and all rights, claims, demands,
liabilities, benefits, grievances or causes of action that it and its
successors, assigns and affiliates may have against the other parties and such
persons which have resulted from the relationship between the parties on or
prior to the Closing Date.
13. Termination of Contracts. Each of the parties agrees that, concurrently with
the Closing, each of the following agreements shall be terminated and of no
further force or effect, and each party will take such actions as may be
necessary to cause such agreements to be so terminated: (i) Purchase Agreement,
dated as of March 9, 1999, between ProLogis and LLC; (ii) Letter Agreement,
dated as of March 9, 1999, from LLC to ProLogis; (iii) Letter Agreement from
ProLogis to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Security Capital
Group Incorporated and SC Realty Incorporated relating to the "Change of Control
Put Right" described therein; (iv) Letter Agreement, dated as of March 9, 1999,
from LLC to the Company regarding the financial advisory services described
therein; and (v) Amended and Restated Option Agreement, dated as of March 9,
1999, by and among Security Capital Group Incorporated, SC Realty Incorporated,
LLC, ProLogis, the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III.
14. Successors and Assigns. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates.
15. Notices. Any notice or other communication provided for herein or given
hereunder to a party hereto shall be in writing and shall be given by delivery,
by fax or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
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If to ProLogis:
ProLogis Trust
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
CSI/Frigo LLC
c/o ProLogis Trust
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
ProLogis Logistics Services Incorporated
c/o ProLogis Trust
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to LLC:
SCI Logistics Holdings LLC
c/o Security Capital Group Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇
Security Capital Group Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address with respect to a party as such party shall
notify the other in writing.
16. Waiver. No party may waive any of the terms or conditions of this Agreement
except by a duly signed writing referring to the specific provision to be
waived.
17. Entire Agreement. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties hereto and their affiliates.
18. Expenses. Except as otherwise expressly contemplated herein to the contrary,
regardless of whether the transactions contemplated hereby are consummated, each
party hereto shall pay its own expenses incident to preparing for, entering into
and carrying out this Agreement and the consummation of the transactions
contemplated hereby.
19. Captions. The Section and Paragraph captions herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
21. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
PROLOGIS LOGISTICS SERVICES
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
PROLOGIS TRUST, solely for purposes of
Sections 2 and 13 hereof
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
CSI/FRIGO LLC,
a Delaware limited liability company
By: /s/ K. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
K. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
SCI LOGISTICS HOLDINGS LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Manager
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EXHIBIT A
Financial Statements of ProLogis Logistics Services Incorporated
as at and for the period ending September 30, 2000
[intentionally omitted]
