EXHIBIT 99.4
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
January 2, 2001, is among Kingspark Holding S.A., a Luxembourg Societe Anonyme
(the "Company"), Kingspark Holdings LLC, a Delaware limited liability company
("KHL"), Kingspark 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, KHL owns _____ ordinary shares, US $2.00 par value per share,
of the Company (the "Ordinary Shares"), constituting all the issued and
outstanding Ordinary Shares; and
WHEREAS, ProLogis owns all the issued and outstanding preferred shares,
US $2.00 par value per share (the "Preferred Shares"), of the Company;
WHEREAS, KHL desires to sell and ProLogis desires to purchase the
Ordinary Shares subject to the terms described herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions herein set forth,
Purchaser agrees to purchase and KHL agrees to sell on the Closing Date (as
hereinafter defined) the Ordinary Shares, free and clear of all liens,
encumbrances, claims and security interests, for US$ 8,115,500 (the "Purchase
Price").
2. Taxable Income True Up. As soon as practicable after the Company determines
its Subpart F income for the tax year ended December 31, 2000, under the
Internal Revenue Code of 1986, as amended, but in any event not later than
October 1, 2001, Purchaser shall pay to KHL as additional purchase price, or if
it has been liquidated by that date, to the former Managers of KHL, an amount in
cash equal to 15.25% of any Subpart F income of the Company attributable to KHL
from the Company for the tax year ending December 31, 2000. Additionally,
Purchaser shall pay to KHL 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 KHL, an amount in cash equal to 15.25% of any "Net Taxable Income"
(as defined below) of KHL for the tax year ended December 31, 2000. Net Taxable
Income shall mean the excess of ordinary taxable income (exclusive of Subpart F
income and distributions received by the Managers from the Company in 2000) over
ordinary taxable losses of KHL for the tax year ended December 31, 2000.
ProLogis hereby unconditionally guarantees the payment of any amount payable to
KHL or the Managers under this Section 2.
3. Release. Subject to the terms and conditions herein set forth, KHL and each
of its Managers hereby consents to the execution and delivery by KHL of this
Agreement and waives
any right of first offer or right of first refusal it or they may have with
respect to the Ordinary Shares to be sold pursuant to this Agreement.
4. Representations and Warranties of the Company. The Company hereby represents
and warrants to KHL and ProLogis as follows:
(a) Due Organization. The Company is duly organized and validly
existing as a Societe Anonyme under the laws of Luxembourg.
(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 Constitution de Societe 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 KHL 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.
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(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 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 the compliance with the terms,
conditions or provisions of this Agreement will be a violation
of any of the terms, conditions or provisions of Purchaser'
Limited Liability Company Agreement or Certificate of
Formation or bylaws or of any material agreement or instrument
to which it or any of its subsidiaries is a party or by which
it or any of its subsidiaries or its or their material
properties may be bound, or constitute a default or create a
right of termination or acceleration thereunder.
(c) 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 KHL. KHL hereby represents and warrants to
Purchaser, the Company and ProLogis as follows:
(a) Due Organization. KHL is duly organized, validly existing and
in good standing as a limited liability company under the laws
of the State of Delaware.
(b) Authorization. KHL 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 KHL, and this Agreement has been duly executed and
delivered by KHL and constitutes a valid and binding agreement
of KHL enforceable against KHL 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 KHL's Limited Liability
Company Agreement or Certificate of Formation, or of any
material agreement or instrument to which KHL is a party or by
which KHL or any of its material properties may be bound, or
constitute a default or create a right of termination or
acceleration thereunder.
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(c) Title. KHL owns the Ordinary Shares free and clear of all
liens, encumbrances, claims and security interests, but
subject to the Purchase Agreement dated as of March 9, 1999,
between ProLogis and KHL.
(d) Access to Information. KHL 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. KHL 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 KHL:
(1) the Purchase Price by wire transfer of immediately
available funds to the account specified by KHL;
(2) a certificate, dated the Closing Date, of the Manager
of Purchaser, certifying that, as of such date, the
representations 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).
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(b) Deliveries by the Company. At the Closing, the Company shall
deliver or cause to be delivered the following:
(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 KHL. At the Closing, KHL shall deliver or cause
to be delivered the following to Purchaser:
(1) a certificate or certificates representing the
_______ Ordinary Shares, which certificates shall be
duly endorsed in blank or accompanied by duly
executed stock powers;
(2) the resignations of Xxxxxxx X. Xxxxxxx, III, Xxxxxx
X. Xxxxxxx, Xx., and Xxxx X. Xxxxxxxxxx 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 KHL certifying that, as of such date, the
representations and warranties of KHL are accurate,
true and correct with the same force and effect as
though made on and as of such date;
(4) a certificate of KHL's Managers certifying
resolutions of the Managers of KHL and action of the
members of KHL approving this Agreement and the
transactions contemplated hereby (together with an
incumbency and signature certificate regarding the
Manager(s) of KHL).
9. Conditions to the Obligations of the Company and Purchaser. The obligations
of the Company and Purchaser under this Agreement are subject to the fulfillment
of each of the following conditions:
(a) Performance. KHL 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.
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(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 KHL. The obligations of KHL under this
Agreement are subject to the fulfillment of each of the following conditions:
(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 or
Luxembourg 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 KHL,
each party irrevocably waives, releases, remises, quitclaims, discharges and
covenants not to xxx 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 KHL; (ii) Letter Agreement,
dated as of March 9, 1999, from KHL to ProLogis; (iii) Letter Agreement from
ProLogis to Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxx III, Xxxx X. Xxxxxxxxxx,
Security Capital Group Incorporated and SC Realty Incorporated relating to the
"Change of Control Put Right" described therein; and (iv) Letter Agreement,
dated as of March 9, 1999, from KHL to the Company regarding the financial
advisory services described therein.
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.
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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:
If to ProLogis:
ProLogis Trust
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to Purchaser:
Kingspark LLC
c/o ProLogis Trust
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
If to the Company:
Kingspark Holding S.A.
c/o ProLogis Trust
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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If to KHL:
Kingspark Holdings LLC
c/o Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx
Security Capital Group Incorporated
0000 Xxxxxx Xxxxxx
Xx Xxxx, XX 00000
Fax: (000) 000-0000
and a copy to:
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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.
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21. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
KINGSPARK HOLDING S.A.
By: /s/ K. Xxxx Xxxxxxxxx
-------------------------------------
PROLOGIS TRUST, solely for purposes of
Sections 2 and 13
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
KINGSPARK LLC, a Delaware limited
liability company
By: /s/ K. Xxxx Xxxxxxxxx
------------------------------------
K. Xxxx Xxxxxxxxx, Manager
KINGSPARK HOLDINGS LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Manager
By: /s/ Xxxxxxx X. Xxxxxxx, III
------------------------------
Xxxxxxx X. Xxxxxxx, III, Manager
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxx, Manager
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EXHIBIT A
Financial Statements of Kingspark Holding S.A.
as at and for the period ending September 30, 2000
[intentionally omitted]
