EXHIBIT 99.13
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), effective as of
July 1, 2002, is among Kingspark LLC, a Delaware limited liability company (the
"Company"), K. Xxxx Xxxxxxxxx, an individual ("Seller"), and ProLogis, a
Maryland real estate investment trust ("Purchaser").
WHEREAS, Seller owns a 5% membership interest (the "Membership
Interest") in the Company, and is the sole manager of the Company;
WHEREAS, Seller and Purchaser have agreed pursuant to a letter
agreement dated July 1, 2002 that Purchaser will acquire Seller's Membership
Interest; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Membership Interest of the Seller, subject to the terms described herein, and
thereby become the sole member of the Company.
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 Membership Interest owned by Seller, free and clear of all
liens, encumbrances, claims and security interests, for the return to Seller of
the promissory note (the "Promissory Note") dated January 5, 2001 in the
original principal amount of $40,557.50 from Seller to Purchaser (collectively,
the "Purchase Price").
2. Representations and Warranties of the Company. The Company hereby represents
and warrants to Seller and Purchaser as follows:
(a) Due Organization. The Company is duly organized and validly
existing as a limited liability company 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 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
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.
(c) 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.
3. Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to the Company and 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.
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser and the Company as follows:
(a) Authority. Seller is at least 21 years of age and is competent
to execute this Agreement and to make the representations,
warranties and covenants herein contained and constitutes a
valid and binding agreement of Seller enforceable against
Seller in accordance with its terms,
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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 any material agreement
or instrument to which Seller is a party or by which Seller
may be bound, or constitute a default or create a right of
termination or acceleration thereunder.
(b) Title. Seller owns the Membership Interest 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.
5. 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.
6. Closing. The purchase and sale of the Membership Interest (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 originally executed Promissory Note marked
"cancelled"; 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 the Company. At the Closing, the Company shall
deliver or cause to be delivered the following:
(i) a certificate of the Company's secretary, certifying
resolutions of the members 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).
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(c) Deliveries by Seller. At the Closing, Seller shall deliver or
cause to be delivered the following to Purchaser:
(i) an executed Assignment of Membership Interest in
substantially the form attached hereto as Exhibit A.
7. 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.
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, 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 of the Company, 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 the Company:
Kingspark LLC
c/o ProLogis
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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If to Seller:
K. Xxxx Xxxxxxxxx
c/o ProLogis
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered effective as of the day and year above written.
KINGSPARK LLC
By: /s/ K. Xxxx Xxxxxxxxx
--------------------------------
K. Xxxx Xxxxxxxxx
Manager
PROLOGIS
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
/s/ K. Xxxx Xxxxxxxxx
-------------------------
K. Xxxx Xxxxxxxxx
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EXHIBIT A
Assignment of Membership Interest
THIS ASSIGNMENT OF MEMBERSHIP INTEREST (this "Assignment") is effective
as of July 1, 2002, among K. Xxxx Xxxxxxxxx, an individual ("Assignor"),
ProLogis, a Maryland real estate investment trust ("Assignee"), and Kingspark
LLC, a Delaware limited liability company (the "Company"). Capitalized terms
used in this Assignment but not otherwise expressly defined herein shall have
the respective meanings ascribed thereto in the Limited Liability Company
Agreement of the Company, as amended (the "Operating Agreement").
WHEREAS, Assignor desires to assign all Membership Interest owned by
him to Assignee and Assignee desires to accept such assignment with the result
that Assignee shall be the sole member of the Company; and
WHEREAS, the Company desires to consent to such assignment and
assumption.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns, transfers and sets over to Assignee its
entire Membership Interest, including all capital relating thereto and profits
derived therefrom, (including, without limitation, all of the terms and
conditions of the Operating Agreement). Assignor hereby accepts such assignment,
and assumes all of Assignor's duties and obligations relating to such Membership
Interest (including as Manager of the Company) and agrees to be bound by all of
the provisions of the Operating Agreement.
2. Company Consent. To the extent required by the Operating Agreement, the
Company consents to the matters set forth in this Assignment, including the
appointment of Assignee as Manager of the Company.
3. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
[Remainder of Page Intentionally Left Blank]
A-1
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed and delivered effective as of the day and year above written.
KINGSPARK LLC
By: /s/ K. Xxxx Xxxxxxxxx
--------------------------------
K. Xxxx Xxxxxxxxx
Manager
PROLOGIS
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
/s/ K. Xxxx Xxxxxxxxx
-------------------------
K. Xxxx Xxxxxxxxx
A-2
