EXHIBIT 4.1
NOTE
----
Date of Note: June 15, 2001
------------ -------
Principal Amount: $7,875,000
- ----------------
Maturity Date: December 15, 2001
- ------------- -----------
Interest Rate: 8.5% per annum to be computed on an actual/365-day basis
- ------------- (i.e., interest for each day during which any of the
---
Principal Amount is outstanding shall be computed at the
Interest Rate divided by 365).
FOR VALUE RECEIVED, the undersigned ("Maker") does hereby covenant and
promise to pay to the order of PROMUS HOTELS, INC., a Delaware corporation, or
its successors or assigns (collectively, "Payee"), at 755 Crossover Lane,
Memphis, Tennessee 38117-4900, or at such other place as Payee may designate to
Maker in writing from time to time, the Principal Amount, on the Maturity Date,
together with interest at the Interest Rate on the unpaid portion of the
Principal Amount on the first day of the first month following the Date of Note
and on the first day of each month thereafter until this Note is paid in full,
and with a late payment premium of 4% of any principal or interest payment made
more than ten (10) days after the due date thereof which shall be due with any
such late payment. All payments of principal, interest and other sums hereunder
shall be made in lawful money of the United States and in immediately available
funds.
For the purposes of this Note the "Property" shall mean, collectively,
the properties sold to Maker as of the date hereof pursuant to that certain
Agreement of Sale dated June 7, 2001, between Hilton Hospitality, Inc.,
Chesterfield Village Hotel, LLC, as sellers, and Maker, as buyer (the "Purchase
Agreement").
This Note is secured by, among other things, mortgages and/or deeds of
trust and/or deeds to secure debt encumbering the Property (individually and
collectively, the "Mortgage"), as well as other ancillary loan documents
(collectively with the Mortgage, the "Loan Documents"). The Mortgage specifies
various defaults upon the happening of which all sums owing on this Note, or
owing on any other purchase money note executed by Maker (or any wholly-owned
subsidiary of Maker) in connection with the acquisition of the Property (a
"Matching Note"), may, at Payee's option, be declared immediately due and
payable. The occurrence of a default under a Matching Note, or any other event
permitting acceleration of the maturity of a Matching Note or any other default
with respect to the Loan Documents, the Purchase Agreement or any other
agreement or obligation of the Maker to the Payee shall be deemed to be a
default under this Note.
Maker agrees that it shall be bound by any agreement extending the
time or modifying the above terms of payment, made by Payee and the owner or
owners of the property affected by the Mortgage, whether with or without notice
to Maker, and Maker shall continue liable to pay the amount due hereunder, but
with interest at a rate no greater than the Interest Rate, according to the
terms of any such agreement of extension or modification. This Note may be
prepaid, in whole or in part, without premium or penalty.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Should the indebtedness represented by this Note or any part thereof
be collected at law or in equity, or in bankruptcy, receivership or any other
court proceedings (whether at the trial or appellate level), or should this Note
be placed in the hands of attorneys for collection upon default, Maker agrees to
pay, in addition to the principal, premium and interest due and payable hereon,
all costs of collection or attempting to collect this Note, including reasonable
attorneys' fees and expenses.
All parties to this Note, whether Maker, principal, surety, guarantor
or endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
Anything herein to the contrary notwithstanding, the obligations of
Maker under this Note and the Mortgage shall be subject to the limitation that
payments of interest shall not be required to the extent that receipt of any
such payment by Payee would be contrary to provisions of law applicable to Payee
limiting the maximum rate of interest that may be charged or collected by Payee.
In case of any loss, theft, destruction or mutilation of this Note,
Maker shall, upon its receipt of an affidavit of an officer of Payee as to such
loss, theft, destruction or mutilation and an appropriate indemnification,
execute and deliver a replacement Note to Payee in the same principal amount and
otherwise of like tenor as this Note.
MAKER BY EXECUTION HEREOF, AND PAYEE BY ACCEPTANCE HEREOF, HEREBY
EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY PAYEE ON THIS NOTE, ANY AND EVERY RIGHT IT MAY HAVE TO A
TRIAL BY JURY.
MAKER HEREBY ACKNOWLEDGES AND AGREES THAT: (I) PAYEE IS ACTING AS A
LENDER SOLELY AT THE REQUEST OF MAKER; (II) THE ACTIONS OF PROMUS HOTELS, INC.,
AS THE MANAGER OF THE PROPERTIES PURSUANT TO A "NEW MANAGEMENT AGREEMENT" (AS
DEFINED IN THE PURCHASE AGREEMENT) ARE SEPARATE, UNRELATED TO AND INDEPENDENT OF
THE PAYEE; AND (III) MAKER KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO RAISE ANY DEFENSES TO THE
ENFORCEMENT OF THE LOAN DOCUMENTS BY PAYEE BASED ON ANY AND ALL ACTIONS,
INACTIONS, DEFAULTS, ERRORS OR OMISSIONS, NEGLIGENCE AND BREACH OF FIDUCIARY OR
OTHER DUTY ALLEGED TO HAVE
2
BEEN COMMITTED BY PROMUS HOTELS, INC., AS THE MANAGER OF THE PROPERTIES,
INCLUDING, WITHOUT LIMITATION, DEFENSES OF EQUITABLE SUBORDINATION, LENDER
LIABILITY, WASTE, MISAPPROPRIATION OF FUNDS, EXCESSIVE EXPENDITURES IN
"CONSPIRACY" WITH PAYEE TO CAUSE A DEFAULT UNDER THE LOAN DOCUMENTS, AND
PRECIPITATING THE EXERCISE OF REMEDIES UNDER THE LOAN DOCUMENTS IN FAVOR OF
PAYEE.
This Note and the rights and obligations of the parties hereunder
shall in all respects be governed by, and construed and enforced in accordance
with, the laws of the State of Tennessee (without giving effect to Tennessee's
principles of conflicts of law). Maker hereby irrevocably submits to the
non-exclusive jurisdiction of any Tennessee State or Federal court sitting in
the City of Memphis over any suit, action or proceeding arising out of or
relating to this Note, and Maker hereby agrees and consents that, in addition to
any methods of service of process provided for under applicable law, all service
of process in any such suit, action or proceeding in any Tennessee State or
Federal court sitting in the City of Memphis may be made by certified or
registered mail, return receipt requested, directed to Maker at the address
indicated below, with a copy to counsel at Jenkens & Gilchrist, Fountain Place,
1445 Ross Avenue, Suite 3200, Dallas, Texas 75202, and service so made shall be
complete five (5) days after the same shall have been so mailed.
[Remainder of page intentionally left blank.]
3
IN WITNESS WHEREOF, Maker has executed and delivered this Note on the
day and year first above written.
APPLE SUITES, INC., a Virginia corporation
By /s/ Glade M. Knight
---------------------------------------
Glade M. Knight, President
Address of Maker:
----------------
9 North Third Street
Richmond, Virginia 23219
Attention: Glade M. Knight
STATE OF Virginia
--------
CITY OF Richmond
--------
The foregoing instrument was acknowledged before me this 14TH day of
June in the year 2001, by Glade M. Knight, President of APPLE SUITES, INC., a
Virginia corporation, on behalf of the corporation. He/she is personally known
to me or has produced _______________________________________ as identification.
Notary: /s/ Jacquelyn B. Owens
-----------------------------
Print Name Jacquelyn B. Owens
------------------
NOTARY SEAL
Notary Public, State of Virginia
--------
My commission expires: 6/30/03
-------