EXHIBIT 4.8
Loan No.: 00-0000000 Boulder, Colorado
Homewood Suites
CONSENT AND AGREEMENT OF MANAGER
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PROMUS HOTELS, INC., a Delaware corporation ("Manager"), acknowledges an
assignment of documents contained in that certain Deed of Trust and Security
Agreement (the "Deed of Trust") to be executed and delivered by APPLE SUITES SPE
III, INC., a Virginia corporation ("Borrower") to FIRST UNION NATIONAL BANK, a
national banking association ("Lender"), in connection with that certain loan
(the "Loan") of TEN MILLION SEVEN HUNDRED THOUSAND and No/100 Dollars
($10,700,000) being made by Lender to Borrower to finance certain real property
and improvements located at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 and more
particularly described in the Deed of Trust (the "Premises").
APPLE SUITES MANAGEMENT INC., a Virginia corporation and an affiliate of
Borrower ("Owner"), is the master lessee of the Premises pursuant to that
certain Amended and Restated Hotel Lease Agreement between Borrower and Owner
dated June 30, 2000 (the "Master Lease").
Manager has agreed to perform or supply certain services to Owner in
connection with the management of the Premises pursuant to that certain
Management Agreement dated as of June 30, 2000 (the "Contract") attached hereto.
Manager does hereby (a) warrant and represent that the Contract contains all
agreements between Manager and Owner relating to property management of the
Premises; (b) acknowledge and consent to the assignment of the Contract by Owner
for the benefit of Borrower and to any further assignment thereof by Lender; (c)
warrant and represent that as of the date hereof, to Manager's knowledge no
default exists under the terms of any agreement between Owner and Manager; and
(d) acknowledge that as of the date hereof, to Manager's knowledge Owner has
satisfied all conditions precedent to commencement of performance by Manager
under the Contract.
Manager does hereby agree that: (i) upon an Event of Default (as defined in
the Deed of Trust) by Borrower under the terms of the "Loan Documents" (as
defined in the Deed of Trust), Manager shall, upon receipt of written notice and
demand of Lender, continue performance on behalf of Lender provided that Manager
is reimbursed for such performance rendered thereafter on behalf of Lender in
accordance with the Contract; and (ii) in the event of any default by Borrower
under the Contract, Manager shall deliver to Lender, by certified United States
mail, postage prepaid, return receipt requested, addressed to FIRST UNION
NATIONAL BANK, One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx
XX0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Contract Finance, a copy of
the written notice delivered to Owner in accordance with the Contract, and
Lender shall have a reasonable time (but in no event less than thirty days after
receipt of such notice) within which Lender shall have the right, but not the
obligation, to cure such default, and the delivery of such notice of default and
the failure of
Lender to cure the same within such time allowed shall be conditions precedent
to the exercise of any right or remedy of Manager arising by reason of such
default; and (iii) Manager shall not enter into any material modification of, or
material addition to, the Contract without the prior written consent of Lender;
and (iv) in the event of either (a) any material default by Borrower under the
terms of the Loan Documents and the taking of control of the Premises by Lender
or (b) the foreclosure of the Deed of Trust or transfer of title to the Premises
by conveyance in lieu thereof, then, the Contract shall be terminable at the
option of Lender upon thirty days' notice. Manager represents that it is looking
solely to Owner, and not to Lender, for payment under the Contract, except as
provided in Clause (i) above or except for payments incurred after Lender elects
not to terminate the Contract when entitled to do so. Lender acknowledges that
upon an Event of Default under the Contract, Manager shall be entitled to
receive from Owner all fees commissions or other amounts payable to Manager
under the Contract, including without limitation, its Management Fee (as defined
in the Contract).
Manager agrees that, notwithstanding any terms of the Contract to the
contrary, if Borrower (or any of Borrower's successors or assigns including
Lender in the event Lender controls or forecloses upon the Property) terminates
the Master Lease, Manager shall recognize and treat Borrower as the Owner of the
Premises and the Contract shall remain in full force and effect thereafter but
subject to the terms of the preceding paragraph.
At such time as the Loan is paid in full and the Deed of Trust is released
of record, this Consent and Agreement of Manager and all of Lender's right,
title and interest with respect to the Contract shall terminate.
Lender may sell, transfer and deliver the Loan Documents to one or more
investors in the secondary Deed of Trust market. In connection with such sale,
Lender may retain or assign responsibility for servicing the debt secured by the
Deed of Trust or may delegate some or all of such responsibility or obligations
to a servicer, including, but not limited to, any subservicer or master
servicer, on behalf of the investors.
This Consent and Agreement of Manager is given by Manager for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Manager, and is intended to induce Lender to make the Loan to
Borrower.
[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
WITNESS the hand and seal of Manager, as of June 1st, 2001.
PROMUS HOTELS, INC., a
Delaware corporation
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By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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