EXHIBIT 9
SECONDARY BLOCK TRADE AGREEMENT
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July 16, 2003
15,752,802 SHARES OF COMMON STOCK OF PROLOGIS
This agreement dated July 16, 2003 sets out the terms under which UBS Securities
LLC ("UBS" / "Buyer") will purchase 15,752,802 shares of common stock (the
"Shares") of ProLogis (the "Issuer") from Security Capital Warehouse
Distribution Business Trust ("Seller").
1. PURCHASE AND SALE
Subject to the terms and conditions of this agreement (the "Agreement"),
Seller agrees as legal and beneficial owner to sell the Shares, free of
all liens, charges or other encumbrances and Buyer agrees to purchase and
pay for the Shares at a net price of $27.552 per Share for a total
consideration of $434,021,200.70 (the "Purchase Price") together with all
dividends, distributions and other benefits attaching to the Shares as
from the date hereof (the "Trade Date").
2. CLOSING
(a) On July 21, 2003 or at such other time and/or date as Seller and
Buyer may agree (the "Closing Date"), Buyer shall pay to Seller
the Purchase Price for the Shares by transfer to Seller's account
to be identified in writing at least 48 hours prior to payment
against delivery of the Shares on the Closing Date. Such delivery
shall be effected by crediting the Shares in registered form to
the participant account of UBS Securities LLC at the Depository
Trust and Clearing Corporation ("DTC"), DTC participant number
642.
(b) Seller undertakes with Buyer that it will bear and pay any stamp
or other duties or taxes on or in connection with the sale and
transfer of the Shares to be sold by Seller and the execution and
delivery of this Agreement and any other tax payable by Seller in
connection with the transaction contemplated hereby.
3. EXPENSES
Seller and Buyer shall bear their own legal costs (if any) and all their
other out-of-pocket expenses (if any).
4. REPRESENTATIONS AND WARRANTIES
(a) As a condition of the obligation of Buyer to purchase and pay for
the Shares, Seller represents and warrants to Buyer as follows:-
(i) that Seller is the holder and sole legal and beneficial
owner of the Shares free from all liens, charges and other
encumbrances and that, to the best knowledge of Seller, the
Shares rank pari passu in all respects with other
outstanding shares of common stock of the Issuer, including
their entitlement to dividends,
(ii) that Seller has the power and authority to sell the Shares
hereunder and no person has any conflicting right,
contingent or otherwise, to purchase or to be offered for
purchase, the Shares, or any of them,
(iii) that the execution, delivery and performance of this
Agreement has been duly authorised by Seller and upon
execution and delivery of the Agreement by the Buyer and
the Seller will constitute a legal, valid and binding
obligation of Seller,
(iv) that the execution, delivery and performance of this
Agreement by Seller will not infringe any law or regulation
applicable to Seller and is not and will not be contrary to
the provisions of the constitutional documents of Seller
and will not result in any breach of the terms of, or
constitute a default under, any instrument or agreement to
which Seller is a party or by which it or its property is
bound,
(v) that there are no restrictions (contractual or otherwise)
prohibiting or otherwise affecting the sale or transfer of
the Shares to Buyer, other than those necessary to ensure
compliance with the registration requirements of the U.S.
Securities Act of 1933, as amended, or an exemption
therefrom, and those contained in the constituent documents
of the Issuer, and no consents or approvals are required to
be obtained in connection with the sale of the Shares to
Buyer and the sale of the Shares to Buyer will not violate
or breach any representation or warranty made by Seller
pertaining to the Shares,
(vi) that all consents and approvals of any court, government
department or other regulatory body required by Seller for
the offering of the Shares and the execution, delivery and
performance of the terms of this Agreement have been
obtained and are in full force and effect,
(vii) Seller does not possess any material non-public information
with respect to the Issuer, and
(viii) Seller is not an affiliate of the Issuer within the meaning
of Rule 144 under the Securities Act of 1933, as amended.
(b) Seller covenants with Buyer that it will keep Buyer indemnified
against any losses, liabilities, costs, claims, actions and
demands (including any expenses arising in connection therewith)
which it may incur, or which may be made against it as a result of
or in relation to any actual or alleged misrepresentation in or
breach of any of the above representations and warranties and will
reimburse Buyer for all costs, charges and expenses which it may
pay or incur in connection with investigating, disputing or
defending any such action or claim.
(c) The above representations, warranties and indemnity shall continue
in full force and effect notwithstanding any investigation by or
on behalf of Buyer or completion of this Agreement.
6. CONDITIONS TO CLOSING
The obligations of Buyer hereunder shall be subject, in its discretion,
to the condition that all representations and warranties and other
statements of Seller herein are, and as of the Closing Date will be,
true, complete and accurate.
7. LAW AND JURISDICTION
This Agreement is governed by the laws of the State of New York as
applied to contracts to be performed wholly within the State of New York.
Each party hereto
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irrevocably submits to the extent permitted under applicable law to the
non-exclusive jurisdiction of the federal and state courts located in the
Borough of Manhattan, State of New York. Each party waives, to the
fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any suit, action or proceeding relating to
this Agreement. Each party certifies (i) that no representative, agent or
attorney of the other party has represented, expressly or otherwise, that
such other party would not seek to enforce the foregoing waiver in the
event of any such suit, action or proceeding and (ii) acknowledges that
it and the other party have entered into this Agreement, in reliance on,
among other things, the mutual waivers and certifications in this
Section.
8. NOTICES
Any notice or notification in any form to be given by the Buyer is to be
sent by facsimile, addressed to the Seller and using the following
address and facsimile number:
Security Capital Warehouse Distribution Business Trust
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telecopier: 000-000-0000
With a copy to:
GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Legal Operations/Security Capital
Telecopier: 000-000-0000
Any such notice shall take effect at the time of dispatch.
9. MISCELLANEOUS
(a) Time shall be of the essence of this Agreement.
(b) The heading to each Clause is included for convenience only and
shall not affect the construction of this Agreement.
(c) In the event any provision of this Agreement is found to be or
becomes invalid or unenforceable, no other provision of this
Agreement shall thereby be affected and the Agreement shall remain
valid and enforceable in respect of all remaining provisions, and
any invalid or unenforceable provision will be deemed to be
replaced by a provision which as nearly as possible accomplishes
the commercial purpose of the original.
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If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof. Upon acceptance by you this Agreement and
such acceptance shall constitute a binding agreement between Buyer and Seller.
Yours faithfully
UBS SECURITIES LLC
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Executive Director Managing Director
Agreed to and accepted by Seller:
SECURITY CAPITAL WAREHOUSE DISTRIBUTION BUSINESS TRUST
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Secretary
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