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EXHIBIT 2(d)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of November 8, 1999, between
CHASTAIN CAPITAL CORPORATION, a Georgia corporation ("Assignor") and MERRILL
LYNCH MORTGAGE CAPITAL INC., a Delaware corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, Merrill Lynch International, an affiliate of Assignee, has
previously arranged a Junior Mortgage Loan Facility for Blackstone Hotel
Acquisitions Company, as borrower (the "Facility") pursuant to an Amended and
Restated Junior Facility Agreement, dated April 30, 1998 (the "Facility
Agreement");
WHEREAS, Assignor acquired a (pound)11,980,000 interest as a "Junior
Lender" in the Facility pursuant to Novation Certificate dated August 24, 1998;
WHEREAS, Assignee wishes to purchase, and Assignor wishes to sell, all
of the Assignor's right, title and interest in, to and under the Facility
Agreement and the Facility on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and other good and valuable consideration paid by Assignee to Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignee and
Assignor agree as follows:
ARTICLE I
GENERAL DEFINITIONS
Section 1.01. Defined Terms. In addition to the terms defined above,
the following capitalized terms shall have the following meanings (terms
defined in the singular are to have the same meaning when used in the plural
and vice versa):
"Agreement" means this purchase agreement, dated as of November 5,
1999, between the Assignee and the Assignor, as such agreement may be amended
and supplemented from time to time in accordance with its terms.
"Assignee" means Merrill Lynch Mortgage Capital Inc., a Delaware
corporation.
"Assignor" means Chastain Capital Corporation, a Georgia corporation.
"Borrower" means Blackstone Hotel Acquisitions Company, a company
organized under the laws of England.
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"Closing Date" means November 8, 1999.
"Conveyed Property" means all right, title and interest of Assignor in
and to (i) the Facility and the Facility Agreement including, without
limitation, all amounts payable to the Assignor under the Facility Agreement
arising on or after the Closing Date, and (ii) the other Facility Documents.
"Facility" means the loan by Junior Lender to Borrower made pursuant
to the Facility Agreement.
"Facility Documents" means the Facility Agreement and each of the
other Finance Documents (as defined in the Facility Agreement) relating
thereto.
"Junior Lender" means each Person identified as a Junior Lender under
the Facility Agreement.
"Person" means an individual, partnership, corporation, joint stock
company, trust, unincorporated organization, association, limited liability
company, institution, public benefit corporation, entity or government (whether
federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
"Purchase Price" means (pound)10,934,673.08.
Capitalized terms not otherwise defined in the Agreement shall have
the meaning set forth in the Facility Agreement.
ARTICLE II
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Subject to the terms and conditions
of this Agreement, Assignor hereby sells, grants, transfers, and assigns the
Conveyed Property to Assignee. This assignment is made without recourse to the
Assignor, except as specifically provided in Article IV hereof.
Section 2.02. Purchase Price. In consideration of the foregoing
Assignor hereby directs and authorizes Assignee, contemporaneously with the
execution of this Agreement, to pay to Merrill Lynch Capital Services Inc.
("MLCS") on behalf of Assignor, by wire transfer of immediately available
funds, the amount of the Purchase Price on the Closing Date. Pursuant to the
terms of the Cross Currency Basis Swap Agreement between Assignor and MLCS (the
"Swap Agreement"), MLCS has paid to Assignor the sum of $17,931,106.19, which
sum shall be deposited by Assignor in the Assignor's account with Chase
Manhattan Bank. The Assignor and the Assignee have executed and delivered to
Bankers Trust Company, as Junior Agent and Security Trustee, a Novation
Certificate in the form attached hereto as Exhibit A. Notwithstanding anything
to the
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contrary contained herein, Assignor agrees to hold all sums received by
Assignor in the aforementioned account in trust, and Assignor shall not release
or distribute such sums unless and until Assignor and Assignee have received
written confirmation from Bankers Trust Company, as Junior Agent and Security
Trustee, that Bankers Trust Company has received the Novation Certificate from
Assignor and has executed the Novation Certificate as provided by Clause 27.3
of the Facility Agreement.
Section 2.03. Intention of the Parties. The Assignor and the Assignee
intend that this assignment and conveyance constitute a sale of the Conveyed
Property to the Assignee conveying good title thereto, free and clear of all
liens, claims and encumbrances created by the Assignor, and that the Conveyed
Property shall not be part of the Assignor's estate in the event of the
insolvency or bankruptcy of the Assignor. The Assignor shall mark its records
in such manner as to indicate unambiguously the ownership of the Conveyed
Property by the Assignee.
Section 2.04. Assumption of Obligations. In connection with the
assignment of all of Assignor's right, title and interest in and to the
Conveyed Property, the Assignee hereby agrees to assume, perform and discharge,
all of the agreements, obligations and duties of Assignor, as a "Junior Lender"
under the Facility Documents arising from and after the date hereof (the
"Assumed Obligations"). The Assignee shall not assume any liability or
obligation of Assignor which arose prior to the Closing Date (the "Retained
Obligations") and Assignor shall continue to be liable and responsible for all
such Retained Obligations, including those as a result of Assignor's failure to
perform any of its agreements, obligations and duties under any of the Facility
Documents prior to the date hereof.
Section 2.05. Transfer Fee. Contemporaneously with the execution of
this Agreement and the payment of the Purchase Price, Assignee has paid to
Bankers Trust Company, as Junior Agent and Security Trustee, a fee of
(pound)750 as required under Clause 27.2(d) of the Facility Agreement in
respect of the transfer of the Conveyed Property.
Section 2.06. Hedging Arrangements. Contemporaneously with the
execution of this Agreement, Assignor has terminated the Swap Agreement between
Assignor and MLCS.
Section 2.07. Further Assurances. Assignor and Assignee agree to
cooperate with each other and execute and deliver to the other such other
instruments and documents and take such other actions as may be reasonably
requested from time to time by any party hereto as necessary to effectuate the
transfer of the Conveyed Property to Assignee and otherwise to carry out,
evidence and confirm the intended purposes of this Agreement. In the event that
the Assignor receives any payment of principal and interest due on the Facility
after the Closing Date, Assignor shall hold such payment in trust for and
immediately remit such payment to the Assignee.
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ARTICLE III
REPRESENTATION, WARRANTIES AND COVENANTS
Section 3.01. Representations, Warranties and Covenants of Assignor.
Assignor hereby makes the following representations, warranties and covenants
on which the Assignee has relied in executing this Agreement. Such
representations, warranties and covenants are made as of the Closing Date, but
shall survive the sale, transfer and assignment of the Conveyed Property to the
Assignee for a period of 90 calendar days after the Closing Date.
(i) Organization and Good Standing. Assignor is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia and is qualified to transact
business in each state or jurisdiction in which qualification is
required for Assignor to perform its obligations under this Agreement
and the Facility Documents to which it is a party.
(ii) Authorization. Assignor has the corporate power to
execute, deliver and perform this Agreement and the Facility Documents
to which it is a party, and the execution, delivery, and performance
of this Agreement and the Facility Documents to which it is a party
have been duly authorized by Assignor by all necessary corporate
action;
(iii) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by the other party hereto,
constitutes a legal, valid and binding obligation of Assignor,
enforceable against Assignor in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the rights of creditors;
(iv) No Violation. Assuming Assignee is a Qualifying
Bank, the consummation of the transactions contemplated by this
Agreement, and the fulfillment of the terms hereof, will not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under the articles of incorporation or by-laws of Assignor, or any
material indenture, agreement, mortgage, deed of trust or other
instrument to which Assignor is a party or by which it is bound, or
result in the creation or imposition of any lien upon any of the
Conveyed Property or any of Assignor's material properties pursuant to
the terms of such indenture, agreement, mortgage, deed of trust or
other such instruments, or, to the best of Assignor's knowledge,
violate any law, or any material order, rule or regulation applicable
to it, of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Assignor or any of its properties;
(v) No Proceedings. Assuming Assignee is a Qualifying
Bank, there are no pending proceedings or investigations to which
Assignor is a party or, to the knowledge of
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Assignor, threatened, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality (A) asserting
the invalidity of this Agreement or any Facility Documents, (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement or any Facility Documents, or (C) seeking any
determination or ruling that would materially and adversely affect the
performance by Assignor of its obligations under, or the validity or
enforceability of, this Agreement or any Facility Document;
(vi) Approvals. Assuming Assignee is a Qualifying Bank,
all approvals, authorizations, consents, order or other actions of any
person, corporation or other organization, or of any court,
governmental agency or body or official, required in connection with
the execution, delivery and performance of this Agreement (including
the assignment of the Conveyed Property) or any Facility Documents by
Assignor, have been taken or obtained on or prior to the Closing Date;
(vii) No Prior Assignment. Assignor is the sole legal and
beneficial owner of the Conveyed Property. Assignor has not sold,
pledged, or assigned, in whole or in part (including by way of
participation or otherwise), or modified or amended any of its right,
title and interest in, to and under the Conveyed Property, other than
the assignment to the Assignee hereunder;
(viii) Outstanding Balance of the Facility. The outstanding
principal balance of the Assignor's Commitment (i.e. portion of the
outstanding principal balance of the Facility) as of the Closing Date
is (pound)11,980,000;
(ix) Securities Laws. Assignor has not directly or
through any agent, offered the Conveyed Property or any part thereof
or any similar security for sale to, or solicited offers to buy the
same from, or otherwise approached or negotiated in respect thereof
with, anyone other than Assignee in any manner so as to bring the sale
of the Conveyed Property or any part thereof pursuant hereto within
the provisions of Section 5 of the Securities Act of 1933, as amended.
Except with respect to the due authorization, execution and delivery
of the Facility Documents by Assignor, Assignor makes no representation or
warranty, and assumes no responsibility, with respect to the due execution,
validity, sufficiency, enforceability or collectibility of the indebtedness
under the Facility or the evidence thereof, including, without limitation, the
Facility Documents, and any and all collateral security documents and
guarantees. Assignor will assume no responsibility for the financial condition
of the Borrower, or for the performance of any of its obligations.
Section 3.02 Representations, Warranties and Covenants of the
Assignee. The Assignee hereby makes the following representations, warranties
and covenants upon which the Assignor has relied on executing and delivering
this Agreement. Such representations, warranties
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and covenants are made as of the Closing Date, but shall survive the sale,
transfer and assignment of the Conveyed Property of the Assignee for a period
of 90 days after the Closing Date.
(i) Organization and Good Standing. Assignee is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and is qualified to
transact business in each state in which qualification is required to
perform its obligations under this Agreement.
(ii) Authorization. Assignee has the corporate power to
execute, deliver and perform this Agreement and the execution,
delivery, and performance of this Agreement have been duly authorized
by all necessary corporate action;
(iii) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation, enforceable against
Assignee in accordance with its terms, subject to bankruptcy,
insolvency and other laws of general application affecting the rights
of creditor;
(iv) No Violation. The consummation of the transactions
contemplated by his Agreement, and the fulfillment of the terms
hereof, will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice, lapse
of time or both) a default under Assignee's certificate of
incorporation or by-laws, or any material indenture, agreement,
mortgage, deed of trust or other instrument to which Assignee is a
party or by which Assignee is bound, or result in the creation or
imposition of any lien upon any of its material properties pursuant to
the terms of such indenture, agreement, mortgage, deed of trust or
other such instrument, or, to the best of Assignee's knowledge,
violate any law, or any material order, rule or regulation applicable
to it, of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or any of its properties;
(v) No Proceedings. There are no proceedings or
investigations to which Assignee is a party pending or, to Assignee's
knowledge, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination or
ruling that would materially and adversely affect the performance of
its obligations under, or the validity or enforceability of, this
Agreement;
(vi) Approvals. All approvals, authorizations, consents,
orders or other actions of any person, corporation or other
organization, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of
this Agreement by it, have been taken or obtained on or prior to the
Closing Date;
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(vii) Independent Credit Analysis. Assignee is purchasing
its interest in the Conveyed Property based upon its independent
credit analysis and evaluation of Borrower and the Collateral, and
Assignee acknowledges that Assignor has not made any representations
or warranties to the Assignee, except as expressly set forth in this
Agreement and that no action taken by Assignor shall be deemed to
constitute a representation or warranty of Assignor to the Assignees,
unless such representation or warranty is expressly set forth in this
Agreement;
(viii) Qualifying Bank. Assignee is a Qualifying Bank as
defined in the Facility Agreement.
ARTICLE IV
INDEMNIFICATION
Section 4.01. Indemnification by Assignor. Assignor hereby agrees to
defend and indemnify Assignee, each of Assignee's affiliates and subsidiaries,
and each of their respective officers, directors, employees or controlling
persons (collectively, the "Assignee Indemnified Persons") for, and hold each
of the Assignee Indemnified Persons harmless against, each and every loss,
liability, claim, damage, expense (including reasonable costs of investigation
and defense and reasonable professional fees) or diminution of value, whether
or not involving a third-party claim (collectively, "Loss"), arising, directly
or indirectly, from or in connection with:
(i) Any misrepresentation or breach of warranty made by
Assignor in this Agreement;
(ii) Any breach by Assignor of any covenant or obligation
of Assignor in this Agreement; and
(iii) Any failure of Assignor to perform or satisfy any of
the Retained Obligations.
Section 4.02. Indemnification by Assignee. Assignee hereby agrees to
defend and indemnify Assignor, Lend Lease Real Estate Investments, Inc. and
each of their respective officers, directors, employees, and controlling
persons (collectively, "Assignor Indemnified Persons") for, and hold each of
the Assignor Indemnified Persons harmless against, each and every Loss,
arising, directly or indirectly, from or in connection with:
(i) Any misrepresentation or breach of warranty made by
Assignee in this Agreement;
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(ii) Any breach by Assignee of any covenant or obligation
of Assignee in this Agreement; or
(iii) Any failure of Assignee to perform or satisfy any of
the Assumed Obligations.
Section 4.03. Procedure for Indemnification - Third-Party Claims.
Promptly after receipt by any Assignee Indemnified Person or Assignor
Indemnified Person of notice of the commencement of any demand, claim or
proceeding against it by a third party, if a claim is to be made against
Assignor under Section 4.01 or Assignee under Section 4.02, such Assignee
Indemnified Person or Assignor Indemnified Person (each an "Indemnified Party")
shall give notice to Assignor or Assignee, respectively (the "Indemnifying
Party"), of the commencement of such claim within 20 days of the notice of such
demand, claim or proceeding, but the failure to notify the Indemnifying Party
will not relieve the Indemnifying Party of any liability that is may have to
any Indemnified Party, except to the extent that the Indemnifying Party
demonstrates that the defense of such action is prejudiced by the Indemnified
Party's failure to give such notice. If any proceeding is brought against an
Indemnified Party and it gives notice to the Indemnifying Party of the
commencement of such proceeding, the Indemnifying Party will be entitled to
participate in such proceeding and, to the extent that it wishes to assume and
control the defense of such proceeding with counsel reasonably acceptable to
the Indemnified Party. After notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such proceeding, the
Indemnifying Party will not be liable to the Indemnified Party for any fees of
other counsel or any other expenses with respect to the defense of such
proceeding subsequently incurred by the Indemnified Party in connection with
the defense of such proceeding (unless the Indemnifying Party is also a party
to such proceeding and outside counsel for the Indemnified Party reasonably
determines in good faith that joint representation would be inappropriate due
to an actual or potential conflict of interest or differing defenses). No
compromise or settlement of such claims may be effected by the Indemnifying
Party without the Indemnified Party's consent, and the Indemnifying Party will
have no liability with respect to any compromise or settlement of such claims
effected without its consent.
Section 4.04. Procedure for Indemnification - Other Claims. A claim
for indemnification for any matter not involving a third-party claim may be
asserted by notice to the Indemnifying Party.
Section 4.05. Limitations. No Indemnifying Party shall be required to
indemnify any person under this Article IV with respect to any Loss unless a
request or claim for indemnification with respect to the proceeding or matter
giving rise to such Loss shall have been made in accordance with the provisions
of this Article IV on or prior to 90 days after the Closing Date.
Section 4.06. Insurance and Subrogation. The amount of any
indemnification payable under this Article IV shall be net of insurance
proceeds paid without reservation and actually received and specifically
related to the claim otherwise covered by the indemnity provisions herein
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to the Indemnified Party under a policy of insurance covering the loss giving
rise to the claim. The parties agree to respond within a reasonable time to any
inquiry by the other parties as to the status of any such insurance payment. An
Indemnifying Party shall be subrogated to any claims or rights of the
Indemnified Parties as against any other persons with respect to any Loss paid
by the Indemnifying Party under this Article IV. The Indemnified Parties shall
cooperate with the Indemnifying Party in the assertion by the Indemnifying
Party of any such claim against such other persons.
ARTICLE V
GENERAL
Section 5.01. Further Assurances. The parties hereto agree to execute
and delivery, or cause to be executed and delivered, all such instruments and
take all such action as may be required in order to effectuate the purposes and
to carry out the terms of this Agreement.
Section 5.02. Headings. The headings in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 5.03. Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original, but all of which when
taken together, shall constitute but one and the same instrument.
Section 5.04. Assignment; Successors and Assigns. The Assignee may
assign all of its rights and obligations under this Agreement to any Person
without the consent of the Administrator. All of the terms, covenants and
conditions herein contained shall inure to the benefit of and be binding upon
the parties, their successors and assigns.
Section 5.05. Notices. Any notice, request, direction, consent, or
other communication permitted or required to be given hereunder shall be in
writing, shall be signed by the person giving it and shall be deemed
conclusively to have been given (a) when personally delivered, (b) when sent by
telex, facsimile or telegram on any Business Day (and confirmed in writing
given in accordance with this Section 5.05) or (c) on the third day following
the day sent by certified or registered mail, postage prepaid and return
receipt requested, to the parties at the following addresses:
If to Assignor: CHASTAIN CAPITAL CORPORATION
3424 Peachtree Road - Suite 800
Atlanta, Georgia 30326
Attention: Steven Grubenhoff
Facsimile No.: (404) 848-8929
Phone No.: (404) 848-8871
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If to Assignee: MERRILL LYNCH MORTGAGE CAPITAL INC.
World Financial Center
New York, New York 10281
Attention: David Mahoney
Facsimile No.: (212) 449-3861
Phone No.: (212) 449-6253
Either party may change the address to which communications are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 5.05.
Section 5.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New York,
without regard to the principles of conflicts of law. Venue shall be proper in
the Southern District of New York.
Section 5.07. Severability of Provisions. Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under New York law. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, illegal or unenforceable in any respect, then such
invalidity of such covenants, agreements, provisions or terms of this Agreement
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
Section 5.08. Integration. Without prejudice to Clauses 27.2(e) and
27.2(g) of the Facility Agreement, this Agreement and Exhibits (which are an
integral part of this Agreement) constitutes the entire agreement and
understanding between or among the parties hereto which respect to the subject
matter hereof and supersedes all prior agreements, understandings or
representations pertaining to the subject matter hereof, whether oral or
written. There are no warranties, representations or other agreements between
or among the parties in connection with the subject matter hereof except as
specifically set forth in or incorporated herein.
Section 5.09. Amendment and Waiver. This Agreement may be amended or
modified only by an instrument signed by all of the parties hereto. A waiver of
any provisions of this Agreement must be in writing, designated as such, and
signed by the party against whom enforcement of the waiver is sought. The
waiver by a party of any right to bring an action of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any right to bring an action for any subsequent, similar or other breach of
this Agreement.
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IN WITNESS WHEREOF, each party has caused this instrument to be signed
in its corporate name on its behalf by its duly authorized officers as of the
date written above.
CHASTAIN CAPITAL CORPORATION
By: /s/ Steven G. Grubenhoff
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Name: Steven G. Grubenhoff
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Title: Chief Financial Officer
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MERRILL LYNCH MORTGAGE CAPITAL INC.
By: /s/ David Mahoney
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Name: David Mahoney
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Title: Director
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