EXHIBIT 4.1
NON-NEGOTIABLE PROMISSORY NOTE
$5,000,000.00 Nashville, Tennessee February 22, 2005
FOR VALUE RECEIVED, the undersigned, GAYLORD ENTERTAINMENT COMPANY, a
Delaware corporation ("Maker"), promises to pay to the NASHVILLE HOCKEY CLUB
LIMITED PARTNERSHIP, a Wisconsin limited partnership ("Payee"), at the office of
Payee at 501 Broadway, Nashville, Tennessee 37203-3932 or at such other place as
Payee may designate to Maker in writing from time to time, the principal sum of
FIVE MILLION AND NO/100THS DOLLARS ($5,000,000), together with interest on the
outstanding principal balance hereof accruing beginning on the Commencement Date
(as hereinafter defined) at a fixed rate equal to six percent (6.0%) per annum;
provided that in no event shall the interest payable in respect of the
indebtedness evidenced hereby exceed the maximum rate of interest from time to
time allowed to be charged by applicable law.
Principal hereof shall be due and payable in equal, annual installments
of $1,000,000 each, plus accrued interest, in arrears, with the first
installment of principal and interest being payable on the first day of the
twelfth (12th) month following the Commencement Date, and subsequent
installments being payable on the first (1st) day of each succeeding twelfth
(12th) month thereafter until the principal balance hereof is repaid in full. As
used herein, "Commencement Date" shall mean the date that the National Hockey
League ("NHL") franchise team owned by Payee and known as the Nashville
Predators (the "Nashville Predators") plays its first NHL regular season game
(or post-season game, in the event of a shortened season, as determined by the
NHL) after the date hereof at the Gaylord Entertainment Center located in
Nashville, Tennessee (the "Arena").
Notwithstanding the foregoing, this Note automatically shall be deemed
forgiven, satisfied in full, and null and void in the event the Nashville
Predators, at any time prior to the expiration of the sixtieth (60th) month
following the Commencement Date, cease to be a National Hockey League franchise
team playing its home games in the Arena, with such forgiveness to be effective
as of the date the Nashville Predators cease playing its home games in the Arena
and to be specifically limited to the then current outstanding principal balance
hereof (but specifically excluding any past due principal payments, as well as
any past due interest on such principal, which have not been timely paid by
Maker), plus any accrued but unpaid interest, which is due on such forgiven
principal amount. For purposes of clarity, in the event of the forgiveness of
this Note pursuant to this paragraph, the Payee would be entitled to collect any
past due principal payments, plus the interest accrued thereon, notwithstanding
the forgiveness of the Note with respect to any future principal and interest
payments hereunder.
The indebtedness evidenced hereby may be prepaid in whole or in part,
at any time and from time to time, without premium or penalty. Any partial
payments shall be applied to principal payments in the order of their maturity.
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Time is of the essence with respect to this Note. It is hereby
expressly agreed that in the event that any payment of principal or interest is
not made within five (5) business days of Maker's receipt of written notice from
Payee that such payment has not been made, then the entire outstanding principal
balance of the indebtedness evidenced hereby, together with all unpaid interest
accrued thereon, shall, at the option of Payee, without notice, become due and
payable, and such entire outstanding principal balance shall begin to bear
interest at a rate equal to the lesser of (i) 10% or (ii) the maximum amount
permitted by applicable law.
This Note is executed and delivered pursuant to, and is subject to the
provisions of, that certain Confidential Settlement Agreement and Full and
Complete Release dated December 30, 2004, by and between Maker and Payee (the
"Settlement Agreement"). Any notices given hereunder shall be made according to
the notice provisions set forth in the Settlement Agreement.
If this Note is placed in the hands of an attorney for
collection or for enforcement, or if Payee incurs any costs incident to the
collection of the indebtedness evidenced hereby, Maker and any endorsers hereof
agree to pay to Payee an amount equal to all such costs, including, without
limitation, all reasonable attorney's fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto. No
failure to accelerate the indebtedness evidenced hereby by reason of default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Payee thereafter to insist upon
strict compliance with the terms of this Note or to prevent the exercise of such
right of acceleration or any other right granted hereunder or by applicable
laws. No extension of the time for payment of the indebtedness evidenced hereby
or any installment due hereunder, made by agreement with any person now or
hereafter liable for payment of the indebtedness evidenced hereby, shall operate
to release, discharge, modify, change or affect the original liability of Maker
hereunder or that of any other person now or hereafter liable for payment of the
indebtedness evidenced hereby, either in whole or in part, unless Payee agrees
otherwise in writing. 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.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state.
This Note is non-negotiable, but it may be assigned as collateral
security for the obligations of the Payee.
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IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officer as of the date first above written.
MAKER:
GAYLORD ENTERTAINMENT COMPANY
By: /s/ Carter R. Todd
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Title: Senior Vice President
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