EXHIBIT 4.10
Loan No.: 00-0000000 Boulder, Colorado
Homewood Suites
RECEIPT AND CLOSING CERTIFICATE
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Dated: June 1, 2001
In connection with the extension by FIRST UNION NATIONAL BANK
("Lender"), to APPLE SUITES SPE III, INC., a Virginia corporation ("Borrower"),
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of that certain first priority loan in the original principal amount of Ten
Million Seven Hundred Thousand and No/100 Dollars ($10,700,000.00) (the "Loan")
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pursuant to the terms of that certain Loan Application dated April 19, 2001, by
and between Lender and Apple Suites, Inc. (the "Application") which Loan relates
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to and is secured by that certain real property situated in the County of
Boulder, State of Colorado, as is more particularly described on Exhibit A
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attached hereto and incorporated herein by this reference, together with the
buildings, structures and other improvements now or hereafter located thereon
(said real property, buildings, structures and other improvements being
hereinafter collectively referred to as the "Property"), and by the limited
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guaranty of certain of Borrower's obligation by APPLE SUITES, INC., a Virginia
corporation ("Guarantor") pursuant to an Indemnity and Guaranty Agreement and
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Environmental Indemnity Agreement, each dated June 1, 2001, Borrower hereby
agrees as follows:
1. Borrower hereby certifies to Lender as follows:
a. Borrower has received from Lender, without offset, counterclaim
or defense, the entire Ten Million Seven Hundred Thousand and No/100 Dollars
($10,700,000.00) of loan proceeds under the Application, which loan proceeds
were directed by Xxxxxxxx to the Account of Union Commerce Title Company, LLC
(the "Disbursing Agent"), for application as set forth in the Disbursement
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Authorization signed by Xxxxxxxx, a copy of which is attached hereto as Exhibit
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B and incorporated herein by this reference.
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b. The undersigned is an officer of the general partner of Xxxxxxxx,
with full power and authority to execute this Receipt and Closing Certificate on
behalf of Borrower.
c. No Event of Default exists under the Loan Documents (as
hereinafter defined) executed by Borrower or the Guarantor and no event has
occurred which with the giving of notice or the passage of time, or both, could
constitute an Event of Default under the Loan Documents.
d. Since the date of the Application, no material portion of the
Property has been damaged and not repaired and restored to Lender's satisfaction
or been taken in condemnation or other similar proceedings, and no such
proceeding is pending. Since the date of the Application, there has been no
structural change in the physical condition of any portion of the Property other
than those changes actually discovered during the course of Property inspections
by Xxxxxx.
e. Neither the Borrower nor the Borrower's general partner, or
Guarantor is the subject of any bankruptcy, reorganization or insolvency
proceeding. No tenant under any lease for a material portion of the Property,
or any guarantor of any such lease, is the subject of any bankruptcy,
reorganization or insolvency proceeding.
f. Since the date of the Application, no materials containing more
than 1% asbestos, toxic waste or other hazardous substance has been placed on or
discovered on the Property, except those used in the ordinary course of the
business conducted on the Property and in compliance with applicable
environmental laws.
g. Since the date of the Application, no material adverse change has
occurred in the current net operating income for the Property.
2. Xxxxxxxx agrees that, in connection with the closing and
disbursement of the Loan, from and after the date upon which the Loan Funds are
placed on the wire by Lender in accordance with the wire instructions of the
Disbursing Agent for Borrower and Lender, the full amount of the Loan thereupon
shall be deemed to be disbursed to Borrower and evidenced by the Promissory Note
executed by Borrower in evidence of the Loan (the "Note") and shall bear
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interest at the rate provided in the Note.
3. Borrower agrees that in the event Xxxxxx decides to include the
Loan as an asset of a securitization, Borrower, prior to such securitization,
will (i) deliver any documents and information reasonably required by the rating
agencies engaged in connection with such securitization (collectively, the
"Rating Agency") in connection with such a securitization provided, that,
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Borrower shall not be required to incur any material cost or expense, (ii) at
Xxxxxx's request, meet at the Property or at Borrower's offices with
representatives of the Rating Agency to discuss the business and operations of
the Property, and (iii) cooperate with any reasonable requests of the Rating
Agency, provided that it is at no cost to the Borrower or Lender. Without
limiting the foregoing, in connection with the sale, transfer and delivery of
the Loan Documents to one or more investors in the secondary mortgage market,
Lender may retain or assign responsibility for servicing the Loan or may
delegate some or all of such responsibility and/or obligations to a servicer,
including, but not limited to, any subservicer or master servicer, on behalf of
the investors.
4. If Lender determines at any time to sell, transfer or assign the
Note, the mortgage, deed of trust or deed to secure debt securing the Note (the
"Security Instrument") and other Loan Documents (as defined in the Security
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Instrument), and any or all servicing rights with respect thereto, or to grant
participations therein (the "Participations") or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (the "Securities"), Lender may
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forward to each purchaser, transferee, assignee, servicer, participant,
investor, or their respective successors in such Participations and/or
Securities (collectively, the "Investors") or any Rating Agency rating such
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Securities, each prospective Investor and each of the foregoing's respective
counsel, all documents and information which Lender now has or may hereafter
acquire relating to the Debt (as defined in the Security Instrument), and to
Borrower, any guarantor, any indemnitor and the
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Property, which shall have been furnished by Borrower, any guarantor and any
indemnitor, as Lender determines necessary or desirable.
5. Xxxxxxxx and Guarantor each hereby certifies and represents to
Lender that neither Xxxxxxxx, Guarantor nor any director or officer of Xxxxxxxx,
Guarantor or Xxxxxxxx's general partner has ever been convicted of a felony nor
is any criminal felony proceeding currently pending or to the best of knowledge
of undersigned threatened.
6. The certifications and agreements contained herein shall survive
the disbursement and closing of the Loan.
7. Lender shall be entitled to act in reliance upon the
certifications herein contained without further inquiry of any kind and
notwithstanding anything to the contrary contained in any other agreements or
document.
8. Borrower hereby acknowledges and understands that it is
anticipated that after the closing of the Loan, the Loan may be sold by Xxxxxx
to a third party and, in connection therewith, all of the documents evidencing,
securing, guaranteeing and/or relating to the Loan which are listed on Exhibit C
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(collectively, the "Loan Documents") shall be assigned by Xxxxxx to said third
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party. Borrower hereby agrees that, upon assignment of the Loan Documents by
Xxxxxx to said third party as aforesaid, Lender shall have no obligations or
liabilities under the Loan Documents, said third party shall be substituted as
the lender under the Loan Documents for all purposes and Borrower shall look
solely to said third party for the performance of any obligations of the Lender
under the Loan Documents except with respect to any liability incurred prior to
such assignment.
9. Notwithstanding anything contained in this Receipt and Closing
Certificate to the contrary, the liability of Borrower and its officer,
directors, general partners, managers, members and principals for the
indebtedness secured hereby and for the performance of the other agreements,
covenants and obligations contained herein and in the Loan Documents shall be
limited as set forth in Section 2.6 of the Note.
[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Xxxxxxxx and Guarantor have caused this Receipt
and Closing Certificate to be executed as of the day and year first above
written.
BORROWER:
APPLE SUITES SPE III, INC.,
a Virginia corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
GUARANTOR:
APPLE SUITES, INC.,
a Virginia corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
EXHIBIT A
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Legal Description
[OMITTED]
EXHIBIT B
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Disbursement Authorization
[OMITTED]
EXHIBIT C
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Loan Documents
1. Promissory Note from Apple Suites SPE III, Inc. to First Union
National Bank
2. Deed of Trust and Security Agreement from Apple Suites SPE III, Inc.
to First Union National Bank
3. Security Agreement from Apple Suites SPE III, Inc. to First Union
National Bank
4. Indemnity and Guaranty Agreement from Apple Suites, Inc. to First
Union National Bank
5. Environmental Indemnity Agreement from Apple Suites SPE III, Inc. and
Apple Suites, Inc. to First Union National Bank
6. Assignment of Leases, Rents and Profits from Apple Suites SPE III,
Inc. to First Union National Bank
7. Assignment of Contracts and Permits from Apple Suites SPE III, Inc. to
First Union National Bank
8. Consent and Agreement of Manager by Promus Hotels, Inc.
9. Disbursement Authorization by Apple Suites SPE III, Inc.
10. Receipt and Closing Certificate by Apple Suites SPE III, Inc. and
Apple Suites, Inc.
11. Form W-9 by Apple Suites SPE III, Inc.
12. Certificate Regarding Organizational Documents by Apple Suites SPE
III, Inc.
13. UCC-1 Fixture filings by Apple Suites SPE III, Inc.
(Texas Secretary of State and Dallas County)
14. UCC-1 Financing Statement by Apple Suites SPE III, Inc.
(City of Richmond and Virginia State Corporation Commission)
