EXHIBIT 99.14
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
October 23, 2002, is between CSI/Frigo LLC, a Delaware limited liability company
("Seller"), and ProLogis, a Maryland real estate investment trust ("Purchaser").
WHEREAS, Seller owns all of the outstanding shares of common stock,
$1.00 par value per share (the "Common Stock"), of ProLogis Logistics Services
Incorporated, a Delaware corporation (the "Company");
WHEREAS, Purchaser owns all of the outstanding shares of Series A
preferred stock, $1.00 par value per share (the "Preferred Stock"), of the
Company;
WHEREAS, prior to the execution of this Agreement, the Company
consummated a transaction pursuant to which its wholly owned subsidiary sold a
portion of its assets;
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Common Stock, subject to the terms described herein, and thereby become the sole
stockholder of the Company; and
WHEREAS, Seller desires to use the proceeds from the sale of the Common
Stock to prepay a portion of that certain Promissory Note, dated January 5,
2001, from Seller to Purchaser in the original principal amount of $2,881,454.55
(the "Note").
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 Seller agrees to sell on the date hereof (the
"Closing Date") the Common Stock owned by Seller, free and clear of all liens,
encumbrances, claims and security interests, for $2,550,000.00 (the "Purchase
Price").
2. Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller as follows:
(a) Due Organization. Purchaser is duly organized and validly
existing as a real estate investment trust under the laws of
the State of Maryland.
(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's
Declaration of Trust 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.
3. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser and the Company as follows:
(a) Authority. Seller 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 Seller and has been duly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller
enforceable against Seller 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
Seller's Certificate of Formation or Limited Liability Company
Agreement 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.
(b) Title. Seller owns the Common Stock free and clear of all
liens, encumbrances, claims and security interests.
(c) Access to Information. Seller 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 as to any of such
information.
4. 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.
5. Closing. The purchase and sale of the Common Stock (the "Closing") shall take
place at the offices of Mayer, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, 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 Seller:
(i) the Purchase Price by wire transfer of immediately
available funds to the account specified by Seller;
and
(ii) a certificate of Purchaser's secretary certifying
resolutions of the Trustees of Purchaser approving
this Agreement and the transactions contemplated
hereby (together with an incumbency and signature
certificate regarding the officers of Purchaser).
(b) Deliveries by Seller. At the Closing, Seller shall deliver or
cause to be delivered the following to Purchaser:
(i) a certificate or certificates representing the Common
Stock, which certificate(s) shall be duly endorsed in
blank or accompanied by duly executed stock powers;
and
(ii) a certificate of Seller's secretary certifying
resolutions of the managing member of Seller
approving this Agreement and the transactions
contemplated hereby (together with an incumbency and
signature certificate regarding the officers of
Seller).
6. Conditions to the Obligations of the Parties. The obligations of each of the
parties are subject to the fulfillment of each of the following conditions:
(a) Performance. Each other party 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 shall
have been issued which prevents the consummation of the
transactions contemplated hereby.
7. Prepayment of Note. Immediately following the Closing, Seller shall prepay a
portion of the Note in an amount equal to the Purchase Price by wire transfer of
immediately available funds to the account specified by Purchaser. In connection
with such prepayment, Purchaser shall deliver to Seller the originally executed
Note marked "cancelled" and Seller shall deliver to Purchaser a newly executed
promissory note with a principal amount and in the form attached hereto as
Exhibit A.
8. Survival. The representations and warranties of the parties shall survive the
Closing for a period of one year following the Closing.
9. Release and Waiver. Effective upon the Closing of the transactions
contemplated hereby, 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, trustees, 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 with respect to the Company on or prior to the Closing Date.
10. 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.
11. 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 Seller:
CSI/Frigo LLC
c/o ProLogis
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: K. Xxxx Xxxxxxxxx
Fax: (000) 000-0000
If to Purchaser:
ProLogis
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
or to such other address with respect to a party as such party shall notify the
other in writing.
12. 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.
13. 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.
14. 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.
15. Captions. The Section and Paragraph captions herein are for convenience of
references only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
16. 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.
17. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
18. Limitation of Liability. Any obligation or liability whatsoever of Purchaser
which may arise at any time under this Agreement or any obligation or liability
which may be incurred by it pursuant to any other instrument, transaction or
undertaking contemplated hereby shall be satisfied, if at all, out of
Purchaser's assets only. No such obligation or liability shall be personally
binding upon, nor shall resort for the enforcement thereof be had to, the
property of any of its shareholders, trustees, officers, employees or agents,
regardless of whether such obligation or liability is in the nature of contract,
tort or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered effective as of the day and year above written.
CSI/FRIGO LLC
By: /s/ K. Xxxx Xxxxxxxxx
----------------------------
K. Xxxx Xxxxxxxxx
Manager
PROLOGIS
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
EXHIBIT A
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
October 23, 2002 US $331,454.55
For value received, the undersigned, CSI/Frigo LLC, a Delaware limited
liability company, or its assigns (herein the PAYOR), promises to pay to the
order of ProLogis, a Maryland real estate investment trust, THREE HUNDRED
THIRTY-ONE THOUSAND FOUR HUNDRED FIFTY-FOUR and 55/100 DOLLARS (US $331,454.55),
plus interest on the unpaid principal amount hereof outstanding from time to
time at the applicable Rate of Interest (as defined below) and the Participation
Interest (as defined below), at such times and on such terms as described below.
1. Repayment of Principal. The aggregate principal amount of this
Promissory Note shall be payable in whole on the tenth anniversary of the date
hereof, such date being referred to as the Final Maturity Date.
2. Payment of Interest. Interest will be payable at maturity, whether
by optional prepayment or on the Final Maturity Date. All interest will be
calculated for the actual number of days elapsed on the basis of a 365-day year.
The Rate of Interest shall be eight percent (8%) per annum. In the event of any
default in the payment of interest or principal hereunder, the Rate of Interest
shall be ten percent (10%) for such period as the PAYOR shall be in default.
3. Additional Payments. At maturity, whether by optional prepayment or
on the Final Maturity Date, PAYOR shall pay to the holder of this Note, an
additional amount equal to the Participation Interest. The Participation
Interest shall accrue annually and shall be equal to six percent (6%) of the
annual net earnings or loss of Frigoscandia S.A., a Luxembourg corporation,
allocable to holders of Ordinary Shares of Frigoscandia S.A.
4. Optional Prepayment. The PAYOR, at his/its option, may prepay this
Promissory Note, together with all accrued interest on the principal balance
prepaid and full payment of the Participation Interest through the date of
prepayment, in whole or in part at any time prior to the Final Maturity Date.
In addition to, and not in limitation of, the foregoing, the
undersigned further agrees, subject only to any limitation imposed by applicable
law, to pay all expenses, including reasonable attorney fees and expenses,
incurred by the holder of this Promissory Note in seeking to collect any amounts
payable hereunder which are not paid when due.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, protest, and notice of dishonor.
This Promissory Note may not be changed or modified orally.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note
as of the date first above written.
CSI/FRIGO LLC
By: /s/ K. Xxxx Xxxxxxxxx
----------------------------------
K. Xxxx Xxxxxxxxx, Manager
