Exhibit 4.9
THIRD
DEED OF TRUST MODIFICATION AGREEMENT
THIRD DEED OF TRUST MODIFICATION AGREEMENT (this "Agreement")
made this ______ day of May, 2000, among PROMUS HOTELS, INC., a Delaware
corporation, having an office at 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000-0000 ("Beneficiary"), APPLE SUITES REIT LIMITED PARTNERSHIP, a Virginia
limited partnership ("Fee Owner"), APPLE SUITES SERVICES LIMITED PARTNERSHIP, a
Virginia limited partnership ("Lessee"; together with Fee Owner, collectively,
"Grantor"), each of Fee Owner and Lessee having an office at 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, and XXXXX XXXX, an individual, having an
address at Hoge, Evans, Xxxxxx, Xxxxxx & Xxxxxxxxx, PLLC, 0000 Xxx Xxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Trustee").
Preliminary Statement
Beneficiary is the beneficiary under, and the lawful owner and
holder of the obligations secured by, the Fee and Leasehold Deed of Trust,
Assignment of Leases and Rents and Security Agreement, dated October 5, 1999,
from Grantor to Trustee, as trustee, recorded in the County Clerk's Office in
Dallas County, Texas on October 6, 1999 in Book 99195 at Page 05671, as amended
by Deed of Trust Modification Agreement dated November 29, 1999 among
Beneficiary, Grantor and Trustee, as trustee, and by Second Deed of Trust
Modification Agreement dated December 22, 1999 among Beneficiary, Grantor and
Trustee, as trustee, all of which have been or are to be recorded in the County
Clerk's Office in Dallas County, Texas (as amended, the "Deed of Trust"). The
Deed of Trust secures a $7,350,000 note of Apple Suites, Inc. ("Borrower")
dated October 5, 1999, a $30,210,000 note of Borrower dated November 29, 1999
and a $4,384,500 note of Borrower dated December 22, 1999 (said notes,
collectively, the "Original Notes"), which Original Notes evidence purchase
money loans (collectively, the "Loans") in the aggregate amount of $41,944,500
from Beneficiary to Grantor. Borrower indirectly owns one hundred percent (100%)
of the beneficial interests in Fee Owner.
Pursuant to an Agreement of Sale dated November 22, 1999
between Beneficiary, Hampton Inns, Inc. and Promus Hotels Florida, Inc., as
sellers, and Borrower, as buyer, Borrower is on the date hereof to acquire
certain premises described therein and in connection therewith, Borrower will
borrow $11,616,750 from Beneficiary and has executed and delivered to
Beneficiary its note, dated the date hereof, obligating it to pay the sum of
$11,616,750 (the "New Note").
In consideration of such additional loan by Beneficiary to
Borrower, Beneficiary and Grantor have agreed to modify the Deed of Trust to
secure the New Note and thereby increase the Note Amount secured by the Deed of
Trust and in the manner hereinafter set forth, and Trustee has agreed to join in
the execution of this Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The Deed of Trust is modified as follows: The term "Note"
shall mean, collectively, the Original Notes and the New Note, as the same may
hereafter be amended, modified, extended, severed, assigned, renewed or
restated, from time to time and the term "Note Amount" shall mean $53,561,250.
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2. Grantor warrants and represents that there are no defenses,
offsets or counterclaims with respect to its obligations under the Deed of
Trust, as modified hereby, including, without limitation, its obligation for the
payment of the Note.
3. Except as modified in the manner set forth above, the Deed
of Trust shall remain unmodified and in full force and effect.
4. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing any such
counterpart.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each of the parties hereto as of the date first above written.
PROMUS HOTELS, INC.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
APPLE SUITES REIT LIMITED
PARTNERSHIP, a Virginia limited
partnership
By: Apple Suites General, Inc., its
general partner
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chairman
of the Board
APPLE SUITES SERVICES LIMITED
PARTNERSHIP, a Virginia limited
partnership
By: Apple Suites Services General, Inc.,
its general partner
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chairman
of the Board
/s/ Xxxxx X. Xxxx
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XXXXX XXXX, as Trustee
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
THIS INSTRUMENT was acknowledged before me on the 4th day of
May, 2000, by Xxxxxx X. Xxxxxx, Executive Vice President of Promus Hotels, Inc.,
a Delaware corporation.
/s/ Xxxxx Xxxxxx
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Notary Public, State of California
Printed Name: Xxxxx Xxxxxx
--------------------------
Commission Expires: 8/8/2002
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STATE OF VIRGINIA
CITY OF RICHMOND
THIS INSTRUMENT was acknowledged before me on the 2nd day of
May, 2000, by Xxxxx X. Xxxxxx, President & Chairman of Apple Suites General,
Inc., a Virginia corporation, as general partner of Apple Suites REIT Limited
Partnership, on behalf of said Apple Suites General, Inc., as general partner of
Apple Suites REIT Limited Partnership.
/s/ Xxxxxxxxx X. Xxxxx
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Notary Public, State of Virginia
Printed Name: Xxxxxxxxx X. Xxxxx
--------------------------
Commission Expires: 6/30/03
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STATE OF VIRGINIA
CITY OF RICHMOND
THIS INSTRUMENT was acknowledged before me on the 0xx.xxx of
May, 2000, by Xxxxx X. Xxxxxx, President & Chairman of Apple Suites Services
General, Inc., a Virginia corporation, as general partner of Apple Suites
Services Limited Partnership, on behalf of said Apple Suites Services General,
Inc., as general partner of Apple Suites Services Limited Partnership.
/s/ Xxxxxxxxx X. Xxxxx
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Notary Public, State of Virginia
Printed Name: Xxxxxxxxx X. Xxxxx
--------------------------
Commission Expires: 6/30/03
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STATE OF TEXAS
COUNTY OF DALLAS
THIS INSTRUMENT was acknowledged before me on the 1st day of
May, 2000, by Xxxxx Xxxx, an individual.
/s/ Xxxx Xxxxx Xxxxxxxxx
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Notary Public, State of Texas
Printed Name: Xxxx Xxxxx Xxxxxxxxx
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Commission Expires: February 22, 2004
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