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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.1)
FELCOR LODGING TRUST INCORPORATED
(Name of Issuer)
COMMON STOCK
$.01 PAR VALUE
(Title of Class of Securities)
-----------------------
31430F101
(CUSIP Number)
BASS PLC
BASS AMERICA, INC.
BASS HOTELS & RESORTS, INC.
(Names of Persons Filing Statement)
PAUL R. KINGSLEY
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Tel. No.: (212) 450-4000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
February 28, 2000
(Date of Event which Requires Filing of
this Statement)
-----------------------
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this statement because of Rule 13d-1(b)(3) or (4), check the following: [ ]
Check the following box if a fee is being paid with this statement: [ ]
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<PAGE>
SCHEDULE 13D
- --------------------------- ------------------------
CUSIP No. 31430F101 Page 2 of 9 Pages
--------------- --- ---
- --------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BASS PLC
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UK
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
--------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH 4,905,558
REPORTING PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,905,558
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,905,558
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
Page 2 of 9
<PAGE>
SCHEDULE 13D
- --------------------------- ------------------------
CUSIP No. 31430F101 Page 3 of 9 Pages
--------------- --- ---
- --------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BASS AMERICA, INC.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
-------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH 2,448,512
-------------------------------------------------
9 SOLE DISPOSITIVE POWER
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,448,512
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,448,512
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
Page 3 of 9
<PAGE>
SCHEDULE 13D
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CUSIP No. 31430F101 Page 4 of 9 Pages
--------------- --- ---
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- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BASS HOTELS & RESORTS, INC.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
---------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH 2,457,046
---------------------------------------------
9 SOLE DISPOSITIVE POWER
---------------------------------------------
10 SHARED DISPOSITIVE POWER
2,457,046
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,457,046
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
Page 4 of 9
<PAGE>
This Amendment No. 1 ("Amendment No. 1") amends and supplements the
Statement on Schedule 13D (the "Schedule 13D") originally filed on November 9,
1998 by Holiday Corporation, a Delaware corporation ("HC"), Bass America, Inc.,
a Delaware corporation ("BAI"), and Bass PLC, a public limited company
organized under the laws of England and Wales ("Bass" and together with Bass
Hotels & Resorts, Inc., a Delaware corporation ("BHR"), and BAI, the "Bass
Entities" or the "Reporting Persons"), relating to the shares (the "Shares") of
Common Stock, $0.01 par value per share, of FelCor Lodging Trust Incorporated,
a Maryland corporation (the "Issuer").
All capitalized terms used in this Amendment No. 1 without definition have
the meanings attributed to them in the Schedule 13D.
The items of the Schedule 13D set forth below are hereby amended and
supplemented as follows:
Item 2. Identity and Background.
Item 2 is amended by deleting the second paragraph thereof and inserting
the following paragraphs immediately after the final paragraph thereof:
"Pursuant to a merger agreement dated as of September 30, 1999, HC, one of
the prior Reporting Persons, merged with and into BHR. By virtue of the merger,
BHR became the beneficial owner of the 2,457,046 Shares previously owned by HC.
The address of the principal business and principal office of BHR is Three
Ravinia Drive, Suite 2900, Atlanta, Georgia 30346. The name, business address,
present principal occupation or employment, and citizenship of each director
and executive officer of BHR is set forth on Schedule B.
BHR owns, operates and franchises hotels under the names
"Inter-Continental", "Crowne Plaza", "Holiday Inn" and "Staybridge Suites" in
North America."
Item 4. Purpose of Transaction.
Item 4 is amended by inserting the following paragraphs immediately after
the first paragraph thereof:
"Pursuant to a Contribution Agreement, dated as of February 27, 2000, by
and among BAI, FelCor Lodging Limited Partnership, a Delaware limited
partnership ("FLLP"), and the Issuer (the "Contribution Agreement"), BAI
contributed 4,713,185 Shares (the "Contributed Shares") to FLLP in exchange for
4,713,185 units of limited partner interest in FLLP (the "Exchange"). As a
result of the transfer, the Bass Entities reduced their ownership interest in
the Issuer from approximately 14.2% to approximately 8.1%.
The Exchange was consummated in contemplation of the Agreement and Plan of
Merger (the "Bristol Merger Agreement"), dated as of February 28, 2000, by and
among Bass, BHR North America, Inc., a Delaware corporation and indirect wholly
owned subsidiary of Bass ("BHRNA"), and Bristol Hotels & Resorts ("Bristol").
The Bristol Merger Agreement provides for an acquisition of Bristol by BHRNA at
a price of $9.50 per share of Bristol common stock in cash effected by (i) a
tender offer by BHRNA for all of the issued and outstanding shares of Bristol
common stock, and (ii) a merger of BHRNA with and into Bristol.
If the transactions contemplated by the Merger Agreement are consummated,
Bass will beneficially own 100% of the share capital of Bristol. Due to the tax
attribution rules relating to real estate investment trusts such as the Issuer,
Bass could not acquire more than 10% of the outstanding equity interests of
Bristol while owning more than 10% of the outstanding Shares without
jeopardizing the status of the Issuer as a qualifying real estate investment
trust. As a result, under the Stockholders' and Registration Rights Agreement,
the acquisition of additional shares of Bristol common stock requires the
consent of the Issuer. In connection with the granting of this consent, BAI,
the Issuer and FLLP entered into the Contribution Agreement."
Page 5 of 9
<PAGE>
Item 5. Interest in Securities of the Issuer.
Item 5 is amended by amending and restating such Item in its entirety as
follows:
"(a)(i) For the purpose of Rule 13d-3 promulgated under the Exchange
Act, BHR beneficially owns 2,457,046 Shares, representing approximately
4.1% of the outstanding Shares of the Issuer;
(a)(ii) For the purpose of Rule 13d-3 promulgated under the Exchange
Act, BAI beneficially owns 2,448,512 Shares, representing approximately
4.0% of the outstanding Shares of the Issuer; and
(a)(iii) Bass, the indirect parent of BHR and BAI, for purposes of
Rule 13d-3 promulgated under the Exchange Act, beneficially owns 4,905,558
Shares (the Shares owned by BHR and BAI), representing approximately 8.1%
of the outstanding Shares of the Issuer.
Except as set forth in this Item 5(a), none of the Bass Entities, nor any
other person controlling, controlled by or under common control with, the Bass
Entities, BAI or BHR, nor, to the best of their knowledge, any persons named in
Schedules A, B or C hereto owns beneficially any Shares.
(b)(i) BHR has shared power to vote and to dispose of 2,457,046
Shares.
(b)(ii) BAI has shared power to vote and to dispose of 2,448,512
Shares.
(b)(iii) Bass has shared power to vote and to dispose of 4,905,558
Shares.
(c) None.
(d) Inapplicable.
(e) Inapplicable."
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 is amended by adding the following paragraphs immediately after the
final paragraph thereof:
"On February 27, 2000, BAI, FLLP and the Issuer entered into the
Contribution Agreement described in Item 4 above.
Pursuant to the Contribution Agreement, BAI contributed 4,713,185 Shares
to FLLP in exchange for 4,713,185 units of limited partner interest (the
"Units") in FLLP (the "Exchange"), a limited partnership of which the Issuer is
the general partner. Subject to certain conditions set forth in the
Contribution Agreement, BAI may redeem the Units issued to it by FLLP at any
time in exchange for, at the Issuer's sole discretion, an amount of cash or the
4,713,185 Shares that it contributed pursuant to the Exchange. Pursuant to the
Contribution Agreement, the Issuer consented to the acquisition by affiliates
of the Bass Entities of additional shares of common stock of Bristol pursuant
to the Merger Agreement, which would otherwise be prohibited under the
Stockholders and Registration Rights Agreement among the Issuer, the Bass
Entities and the other Stockholders without the consent of the Issuer."
Item 7. Material to be Filed as Exhibits.
Item 7 is amended by adding the following language at the end thereof:
Exhibit 3: Contribution Agreement, dated as of February 27, 2000,
by and among BAI, FLLP and the Issuer.
Exhibit 4: Power of Attorney, dated February 28, 2000.
Page 6 of 9
<PAGE>
Exhibit 5: Power of Attorney, dated February 28, 2000.
Schedules
Schedule B is deleted in its entirety and replaced with Schedule B
attached hereto.
Page 7 of 9
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February 29, 2000
BASS AMERICA, INC.
By: /s/ Julian A. Fortuna
-------------------------------------
Name: Julian A. Fortuna
Title: Attorney-in-fact
BASS HOTELS & RESORTS, INC.
By: /s/ James L. Kacena
-------------------------------------
Name: James L. Kacena
Title: Vice President and Secretary
BASS PLC
By: /s/ Andrew E. Macfarlane
-------------------------------------
Name: Andrew E. Macfarlane
Title: Attorney-in-fact
Page 8 of 9
<PAGE>
SCHEDULE B
DIRECTORS AND EXECUTIVE OFFICERS OF BHR
The name, business address, title, present principal occupation or
employment of each of the directors and executive officers of BHR are set forth
below. If no business address is given the director's or officer's business
address is Three Ravinia Drive, Suite 2900, Atlanta, GA 30346. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
HC. Unless otherwise indicated, all of the persons listed below are citizens of
the United States of America.
<TABLE>
Present Principal Occupation
Name and Business Address Including Name and Address1 of Employer
- ------------------------------------ --------------------------------------------------------------------
<S> <C>
Directors
W. Douglas Lewis.................... Director, President and Chief Executive Officer.
Thomas Arasi........................ Director and President of Bass Hotels & Resorts, The Americas.
John T. Sweetwood................... Director and President of Midscale Hotels, North America.
Robert D. Hill...................... Director and Executive Vice President, General Counsel and Secretary.
Richard L. Solomons................. Director and Senior Vice President, Finance (British Citizen).
</TABLE>
<TABLE>
Present Principal Occupation
Name and Business Address Including Name and Address2 of Employer
- ------------------------------------ --------------------------------------------------------------------
<S> <C>
Executive Officers
(Who Are Not Directors)
Robert J. Chitty.................... Treasurer and Vice President, Tax and Treasury.
James L. Kacena..................... Vice President and General Counsel - Development and Acquisitions and
Assistant Secretary.
Morton H. Aronson................... Vice President and General Counsel - Holiday Inn Division and Assistant
Secretary.
</TABLE>
- --------
1 Same address as director's or officer's business address except
where indicated.
2 Same address as director's or officer's business address except
where indicated.
Page 9 of 9
EXHIBIT 3
CONTRIBUTION AGREEMENT
BY AND AMONG
FELCOR LODGING LIMITED PARTNERSHIP,
a Delaware limited partnership,
FELCOR LODGING TRUST INCORPORATED,
a Maryland corporation
AND
BASS AMERICA, INC.
a Delaware corporation
<PAGE>
TABLE OF CONTENTS
ARTICLE I. The Contribution...........................................-1-
1.1 Contribution of Contributed Assets.........................-1-
1.2 Consideration..............................................-1-
1.3 Redemption Rights for Units................................-2-
1.4 Registration Rights........................................-2-
1.5 SEC Filings................................................-2-
1.6 Section 721 Transaction....................................-2-
ARTICLE II. Representations and Covenants..............................-3-
2.1 Representations by General Partner and FLLP................-3-
2.2 Representations by Contributor.............................-4-
2.3 Restrictions on Subsequent Sale of the Contributed Assets..-5-
ARTICLE III. Conditions Precedent to the Closing........................-6-
3.1 Contributor's Obligations..................................-6-
3.2 Contributor's Representations and Warranties...............-6-
ARTICLE IV. Closing and Closing Documents..............................-6-
4.1 Closing....................................................-6-
4.2 Contributor's Deliveries...................................-6-
4.3 FLLP's Deliveries..........................................-7-
ARTICLE V. Miscellaneous..............................................-7-
5.1 Notices....................................................-7-
5.2 Entire Agreement; Modifications and Waivers; Cumulative
Remedies................................................-8-
5.3 Exhibits...................................................-9-
5.4 Successors and Assigns.....................................-9-
5.5 Article Headings...........................................-9-
5.6 Governing Law..............................................-9-
5.7 Time Periods...............................................-9-
5.8 Counterparts...............................................-9-
5.9 Survival...................................................-9-
5.10 Further Acts...............................................-9-
5.11 Severability...............................................-9-
5.12 Attorneys' Fees...........................................-10-
5.13 Consent to BHR Merger.....................................-10-
-i-
<PAGE>
List of Exhibits and Schedules
Exhibit A - Form of Amendment to Agreement of Limited Partnership
Schedule 2.1(h) - Summary of FelCor Lodging Limited Partnership Partnership
Agreement
-ii-
<PAGE>
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of the date
last below written by and among Bass America, Inc., a Delaware corporation
("Contributor"), FelCor Lodging Limited Partnership, a Delaware limited
partnership ("FLLP"), and FelCor Lodging Trust Incorporated, a Maryland
corporation and the sole general partner of FLLP ("General Partner").
RECITALS:
A. Contributor is the record and beneficial owner of 7,161,697 shares
of the common stock, par value $0.01 per share ("Common Stock"), of FelCor
Lodging Trust Incorporated and desires to contribute 4,713,185 shares of the
Common Stock, as such shares may be as adjusted from time to time for any stock
splits, stock dividends or other recapitalizations (the "Contributed Assets")
to FLLP.
B. Contributor and General Partner, among others, are parties to that
certain Stockholders' and Registration Rights Agreement dated July 28, 1998
(the "Stockholders Agreement").
C. FLLP desires to acquire the Contributed Assets from Contributor, on
the terms and conditions hereinafter set forth.
D. General Partner, in order to induce Contributor to enter into this
Agreement, has agreed to make certain representations, warranties and covenants
in this Agreement, all upon the terms and subject to the conditions of this
Agreement.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
The Contribution
1.1 Contribution of Contributed Assets. Contributor agrees to
contribute and transfer the Contributed Assets to FLLP and FLLP agrees to
accept transfer of the Contributed Assets pursuant to the terms and conditions
set forth in this Agreement. The Contributed Assets shall be transferred to
FLLP at Closing (defined below), free and clear of all liens, encumbrances,
security interests, prior assignments or conveyances, conditions, restrictions,
claims and other matters affecting title.
1.2 Consideration. The total consideration (the "Consideration") for
which Contributor agrees to contribute and assign the Contributed Assets to
FLLP, and which FLLP agrees to pay or deliver to Contributor, subject to the
terms of this Agreement, shall be the issuance to Contributor of the units
("Units") of limited partner interest in FLLP equal in number to the total
number of
-1-
<PAGE>
shares of Common Stock comprising the Contributed Assets. Contributor hereby
subscribes for and agrees to accept the issuance of the Units and the terms and
conditions of the Amended and Restated Agreement of Limited Partnership for
FLLP dated as of July 25, 1994, as amended to date (the "Partnership
Agreement"), including without limitation the power of attorney granted in
Section 1.4 of the Partnership Agreement, and to execute and deliver at the
Closing such other documents or instruments as may be required by General
Partner under Section 11.4 of the Partnership Agreement to effect Contributor's
admission as a limited partner in FLLP.
1.3 Redemption Rights for Units. Each Unit shall be redeemable, at the
option of Contributor, in accordance with, but subject to the restrictions
contained in, Section 7.5 of the Partnership Agreement; provided, however, that
Contributor's redemption option may not be exercised prior to (a) the date that
is 30 days after the termination of any agreement to merge, consolidate or
otherwise acquire control of Bristol Hotels & Resorts, entered into by Bass PLC
or any of its affiliates (the "BHR Merger") or (b) if any such agreement is not
reached, March 28, 2000. Furthermore, notwithstanding the provisions set forth
in Section 7.5 of the Partnership Agreement, if Contributor elects to redeem
its Units, the General Partner may, in its sole and absolute discretion, pay
the Redemption Amount (as defined in the Partnership Agreement) either (i)
through payment of the REIT Shares Amount (as defined in the Partnership
Agreement), or (ii) by causing FLLP to distribute to Contributor the
Contributed Assets, subject, in either case, to all of the other conditions set
forth in Section 7.5.
1.4 Registration Rights. Contributor shall have rights to obtain
registration with the Securities and Exchange Commission (the "SEC") of the
shares of Common Stock that may be issuable in redemption for Contributor's
Units pursuant to the terms of the Stockholders Agreement. General Partner
acknowledges that, for purposes of the Stockholders Agreement, the shares of
Common Stock that may be issuable in redemption for Contributor's Units shall
be deemed Registrable Shares, as that term is defined in the Stockholders
Agreement, and General Partner shall cause a Registration Statement (as defined
in the Stockholders Agreement) with respect to such shares to become effective
pursuant to Section 2.1 thereof no later than September 1, 2000.
1.5 SEC Filings. FLLP agrees to provide to Contributor a copy of all
periodic reports filed after the date of this Agreement by General Partner with
the SEC under Section 13 of the Securities Exchange Act of 1934, as amended.
This obligation will cease upon the termination of this Agreement prior to
Closing or upon the redemption by Contributor of all of its Units after
Closing.
1.6 Section 721 Transaction. Notwithstanding anything to the contrary
in this Agreement, including without limitation the use of words and phrases
such as "Seller," "Purchaser," "Purchase Price," "sell," "sale," purchase" and
"pay," the parties hereto acknowledge and agree that it is their intent that
the transaction contemplated hereby be treated for federal income tax purposes
as the contribution of the Contributed Assets by Contributor to FLLP in
exchange for the Units pursuant to Section 721 of the Internal Revenue Code of
1986, as amended (the "Code"), and not as a transaction in which Contributor is
acting other than in its capacity as a prospective partner of FLLP.
-2-
<PAGE>
ARTICLE II.
Representations and Covenants
2.1 Representations by General Partner and FLLP. General Partner and
FLLP hereby represent and warrant unto Contributor that each and every one of
the following statements is true, correct and complete in every material
respect as of the date of this Agreement and will be true, correct and complete
as of the Closing Date:
(a) General Partner is duly organized, validly existing and
in good standing under the laws of the State of Maryland, and has full right,
power and authority to enter into this Agreement and to assume and perform all
of its obligations under this Agreement; that the execution and delivery of
this Agreement and the performance by General Partner of its obligations under
this Agreement, including, but not by way of limitation, its obligations with
respect to the issuance of its shares of Common Stock upon the redemption of
the Units (if it elects to issue such shares of Common Stock) to be issued to
Contributor pursuant to this Agreement, have been approved by the Board of
Directors of General Partner and require no further action or approval of its
directors or shareholders or of any other individuals or entities in order to
constitute this Agreement as a binding and enforceable obligation of General
Partner.
(b) FLLP is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has full right, power and
authority to enter into this Agreement and to assume and perform all of its
obligations under this Agreement; and, the execution and delivery of this
Agreement and the performance by FLLP of its obligations under this Agreement
have been approved by the Board of Directors of General Partner and require no
further action or approval of FLLP's partners or of any other individuals or
entities in order to constitute this Agreement as a binding and enforceable
obligation of FLLP.
(c) Neither the entry into nor the performance of, or
compliance with, this Agreement by either General Partner or FLLP has resulted,
or will result, in any violation of, or default under, or result in the
acceleration of, any obligation under any existing corporate charter,
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, mortgage, indenture, lien agreement, note, contract,
permit, judgment, decree, order, restrictive covenant, statute, rule or
regulation applicable to General Partner or FLLP.
(d) FLLP is acquiring the Contributed Assets for its own
account and not with a view to the distribution thereof within the meaning of
Section 2(11) of the Securities Act of 1933, as amended.
(e) The Units, when issued, will have been duly and validly
authorized and issued, free of any preemptive or similar rights, and will be
fully paid and nonassessable, without any obligation to restore capital except
as required by the Delaware Revised Uniform Limited Partnership Act (the
"Delaware Act"). As a holder thereof, Contributor shall be admitted as a
limited partner of FLLP as of the Closing Date entitled to all of the rights
and protections of limited partners under the Delaware Act and the provisions
of the Partnership Agreement, with the same rights, preferences and privileges
as all existing limited partners on a pari passu basis. As of the date hereof
-3-
<PAGE>
and immediately prior to the Closing, there are issued and outstanding
63,812,654 Units having substantially equal rights with respect to all matters,
including rights to receive distributions and upon liquidation, and an
aggregate of 6,107,500 units having certain preferential rights with respect to
the receipt of distributions and upon liquidation. The shares of Common Stock
for which the Units may be redeemed have been validly authorized and will be
duly and validly issued, fully paid and nonassessable, free of preemptive or
similar rights.
(f) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the (i) valid authorization,
issuance, sale and delivery of the Units, and (ii) the valid authorization,
issuance, sale and delivery of shares of Common Stock upon redemption of the
Units.
(g) Neither the issuance, sale and delivery by FLLP of the
Units, nor the issuance, sale and delivery by General Partner of the shares of
Common Stock upon redemption of the Units, will conflict with or result in a
breach or violation of any of the terms and provisions of, or (with or without
the giving of notice or passage of time or both) constitute a default under the
certificate of incorporation or bylaws of General Partner or the certificate of
limited partnership or the Partnership Agreement of FLLP; any indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which General Partner or FLLP is a party or to which any of them,
any of their respective properties or other assets or any hotel is subject; or
any applicable statute, judgment, decree, rule or regulation of any court or
governmental agency or body applicable to any of the foregoing or any of their
respective properties; or result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of General Partner or
FLLP.
(h) Attached hereto as Schedule 2.1(h) is a list of all of
the constituent documents comprising the Partnership Agreement, as amended and
supplemented to date, true and complete copies of all of which have been
delivered to Contributor.
(i) Waiver of Ownership Limit. General Partner acknowledge
that, pursuant to its Articles of Amendment and Restatement, as further amended
and supplemented (the "Charter"), no person or entity may beneficially own more
than 9.9% of the outstanding Common Stock (the "Ownership Limit") unless the
Board of Directors of General Partner waives compliance with such Ownership
Limit. General Partner further acknowledges that in connection with the
Stockholders Agreement, Contributor (together with its affiliates) received a
waiver of the Ownership Limit in connection with its ownership of shares of
Common Stock, including the Contributed Assets. General Partner hereby confirms
that in the event that Contributor exercises its right of redemption and
receives shares of Common Stock, the waiver previously granted to Contributor
and its affiliates shall continue to be applicable to the acquisition by
Contributor of such shares of Common Stock upon redemption of its Units;
provided, however, that the aggregate number of shares of Common Stock held by
Contributor and its affiliates following such redemption shall not exceed the
Initial Ownership of the Bass Parties as set forth in, and as those terms are
defined in, the Stockholders Agreement.
2.2 Representations by Contributor. Contributor hereby represents and
warrants unto FLLP that each and every one of the following statements is true,
correct and complete in every
-4-
<PAGE>
material respect as of the date of this Agreement and will be true, correct and
complete as of the Closing Date:
(a) Contributor is duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has full right,
power and authority to enter into this Agreement and to assume and perform all
of its obligations under this Agreement; and the execution and delivery of this
Agreement and the performance by Contributor of its obligations under this
Agreement require no further action or approval of Contributor's shareholders,
directors, members, managers, trustees or partners (as the case may be) or of
any other individuals or entities in order to constitute this Agreement as a
binding and enforceable obligation of Contributor.
(b) Neither the entry into nor the performance of, or
compliance with, this Agreement by Contributor has resulted, or will result, in
any violation of, or default under, or result in the acceleration of, any
obligation under any existing corporate charter, certificate of incorporation,
bylaw, articles of organization, limited liability company agreement,
regulations, certificate of limited partnership, trust agreement, partnership
agreement, mortgage indenture, lien agreement, note, contract, permit,
judgment, decree, order, restrictive covenant, statute, rule or regulation
applicable to Contributor or to the Contributed Assets.
(c) (i) Contributor is the sole owner of the Contributed
Assets, (ii) Contributor has good title to the Contributed Assets, (iii) the
Contributed Assets are free and clear of any liens, encumbrances, pledges and
security interests whatsoever, and (iv) Contributor has not granted any other
person or entity an option to purchase or a right of first refusal upon the
Contributed Assets.
(d) No authorization, consent, approval, permit or license
of, or filing with, any governmental or public body or authority, or any other
person or entity is required to authorize, or is required in connection with,
the execution, delivery and performance of this Agreement or the agreements
contemplated hereby on the part of Contributor, other than for purposes of the
Stockholders Agreement, the approval of the Board of Directors of General
Partner of the transactions contemplated by this Agreement.
(e) Contributor is familiar with the business and financial
condition of General Partner and FLLP, and is not relying upon any
representations made to it by General Partner, FLLP or any of the officers,
employees or agents of either of them that are not contained or referred to
herein.
(f) Contributor is aware of the risks involved in making an
investment in the Units and in the Common Stock for which such Units may be
redeemable. Contributor has had an opportunity to ask questions of, and to
receive answers from, FLLP and General Partner, or a person or persons
authorized to act on their behalf, concerning the terms and conditions of this
investment and the financial condition, affairs and business of FLLP and
General Partner. Contributor confirms that all documents, records and
information pertaining to its investment in FLLP that have been requested by
it, including a complete copy of the Partnership Agreement as summarized in
Schedule 2.1(h) attached hereto, have been made available or delivered to it
prior to the date hereof.
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(g) Contributor understands that neither the Units nor the
shares of Common Stock for which the Units may be redeemed have been registered
under the Securities Act of 1933, as amended, or any state securities acts and
are instead being offered and sold in reliance on an exemption from such
registration requirements. The Units for which Contributor hereby subscribes
are being acquired solely for its own account, for investment, and are not
being acquired with a view to, or for resale in connection with, any
distribution, subdivision or fractionalization thereof, in violation of such
laws, and (except as expressly set forth herein) Contributor has no present
intention to enter into any contract, undertaking, agreement or arrangement
with respect to any such resale. Contributor understands that the Units will
contain appropriate legends reflecting the requirement that the Units not be
resold by Contributor without registration under such laws or the availability
of an exemption from such registration.
(h) Contributor is an accredited investor as that term is
defined in Rule 501 of Regulation D of the SEC.
2.3 Restrictions on Subsequent Disposition of the Contributed Assets.
FLLP covenants and agrees that, until the earlier of seven (7) years from the
date hereof or the date that Contributor no longer owns at least 25% of the
Units issued to it pursuant to this Agreement, FLLP shall not sell, assign,
transfer, distribute or otherwise dispose (including taking any action that
would result in the recognition of a loss, for U.S. federal income tax
purposes, by FLLP or Contributor) of the Contributed Assets, without
Contributor's prior written consent.
ARTICLE III.
Conditions Precedent to the Closing
In addition to any other conditions set forth in this Agreement,
FLLP's obligations to consummate the Closing is subject to the timely
satisfaction of each and every one of the conditions and requirements set forth
in this Article III, all of which shall be conditions precedent to FLLP's
obligations under this Agreement.
3.1 Contributor's Obligations. Contributor shall have performed all
obligations of Contributor hereunder which are to be performed prior to
Closing.
3.2 Contributor's Representations and Warranties. Contributor's
representations and warranties set forth in Section 2.2 shall be true and
correct in all material respects as if made again on the Closing Date.
ARTICLE IV.
Closing and Closing Documents
4.1 Closing. The consummation and closing (the "Closing") of the
transactions contemplated under this Agreement shall take place at the offices
of Davis Polk & Wardwell in New York, New York, or such other place as is
mutually agreeable to the parties, at 12:00 noon on February 27, 2000 (the
"Closing Date"), or as otherwise set by agreement of the parties.
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4.2 Contributor's Deliveries. At the Closing and at Contributor's sole
cost and expense, Contributor shall deliver the following to FLLP in addition
to all other items required to be delivered to FLLP or General Partner by
Contributor:
(a) Certificate for Contributed Assets. Contributor's stock
certificate(s) representing the Contributed Assets, duly endorsed for transfer
or accompanied by duly executed stock powers or assignments, granting and
conveying to FLLP good and indefeasible title to the Contributed Assets, free
and clear of all liens, encumbrances, security interests, prior assignments,
conditions, restrictions, claims and other matters affecting title;
(b) Amendment to the Partnership Agreement. An amendment to
the Partnership agreement to effect Contributor's admission as a limited
partner of FLLP substantially in the form attached hereto as Exhibit A (the
"Amendment") duly executed by Contributor;
(c) Authority Documents. Evidence satisfactory to FLLP that
the person or persons executing the closing documents on behalf of Contributor
have full right, power and authority to do so.
4.3 FLLP's Deliveries. At the Closing, and at FLLP's sole cost and
expense, FLLP shall deliver the following to Contributor:
(a) Certificate for Units. A unit certificate duly issued by
FLLP in the name of Contributor as of the Closing Date representing the Units
to which Contributor is entitled pursuant to Section 1.2 of this Agreement;
(b) Amendment to the Partnership Agreement. The Amendment
duly executed by General Partner, as the sole general partner and as the
attorney-in-fact of all limited partners of FLLP;
(c) Authority Documents. Evidence satisfactory to Contributor
that the person or persons executing the closing documents on behalf of FLLP
have full right, power and authority to do so.
ARTICLE V.
Miscellaneous
5.1 Notices. Any notice provided for by this Agreement and any other
notice, demand or communication which any party may wish to send to another
shall be in writing and either delivered in person (including by confirmed
facsimile transmission) or sent by registered or certified mail or overnight
courier, return receipt requested, in a sealed envelope, postage prepaid, and
addressed to the party for which such notice, demand or communication is
intended at such party's address as set forth in this Section. FLLP's address
for all purposes under this Agreement shall be the following:
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c/o FelCor Lodging Trust Incorporated
545 E. John Carpenter Frwy., Suite 1300
Irving, Texas 75062
Attention: General Counsel
Fax No. (972) 444-4949
with a copy to:
Jenkens & Gilchrist, P.C.
1445 Ross Ave., Suite 3200
Dallas, Texas 75202-2799
Attention: Robert W. Dockery
Fax No. (214) 855-4300
Contributor's address for all purposes under this Agreement shall be the
following:
Bass America, Inc.
1105 North Market Street
Suite 1046
Wilmington, Delaware 19801
Attn: Kathy Storm
Fax No. (302) 427-7395
Tax I.D. No. _______________________
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attn: Thomas Patrick Dore, Jr.
Fax No. (212) 450-5738
Any address or name specified above may be changed by a notice given by the
addressee to the other parties. Any notice, demand or other communication shall
be deemed given and effective as of the date of delivery in person or receipt
set forth on the return receipt. The inability to deliver because of changed
address of which no notice was given, or rejection or other refusal to accept
any notice, demand or other communication, shall be deemed to be receipt of the
notice, demand or other communication as of the date of such attempt to deliver
or rejection or refusal to accept.
5.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies.
This Agreement supersedes any existing letter of intent between the parties,
constitutes the entire agreement among the parties hereto and may not be
modified or amended except by instrument in writing signed by the parties
hereto, and no provisions or conditions may be waived other than by a writing
signed by the party waiving such provisions or conditions. No delay or omission
in the exercise of any right or remedy accruing to Contributor or FLLP upon any
breach under this
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<PAGE>
Agreement shall impair such right or remedy or be construed as a waiver of any
such breach theretofore or thereafter occurring. The waiver by Contributor or
FLLP of any breach of any term, covenant or condition herein stated shall not
be deemed to be a waiver of any other breach, or of a subsequent breach of the
same or any other term, covenant or condition herein contained. All rights,
powers, options or remedies afforded to Contributor or FLLP either hereunder or
by law shall be cumulative and not alternative, and the exercise of one right,
power, option or remedy shall not bar other rights, powers, options or remedies
allowed herein or by law, unless expressly provided to the contrary herein.
5.3 Exhibits. All exhibits referred to in this Agreement and attached
hereto are hereby incorporated in this Agreement by reference.
5.4 Successors and Assigns. Except as set forth in this Article, this
Agreement may not be assigned by FLLP or Contributor without the prior approval
of the other parties hereto. This Agreement shall be binding upon, and inure to
the benefit of, Contributor and FLLP and their respective legal
representatives, successors, and permitted assigns.
5.5 Article Headings. Article headings and article and section numbers
are inserted herein only as a matter of convenience and in no way define, limit
or prescribe the scope or intent of this Agreement or any part hereof and shall
not be considered in interpreting or construing this Agreement.
5.6 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware.
5.7 Time Periods. If the final day of any time period or limitation
set out in any provision of this Agreement falls on a Saturday, Sunday or legal
holiday under the laws of the State of Delaware, or the federal government,
then and in such event the time of such period shall be extended to the next
day which is not a Saturday, Sunday or legal holiday.
5.8 Counterparts. This Agreement may be executed in any number of
counterparts and by any party hereto on a separate counterpart, each of which
when so executed and delivered shall be deemed an original and all of which
taken together shall constitute but one and the same instrument.
5.9 Survival. All covenants and agreements contained in the Agreement
which contemplate performance after the Closing Date shall survive the Closing,
and all representations, warranties and indemnities contained in this Agreement
shall expressly survive the Closing for a period of three (3) years.
5.10 Further Acts. In addition to the acts, instruments and agreements
recited herein and contemplated to be performed, executed and delivered by
FLLP, General Partner and Contributor, FLLP, General Partner and Contributor
shall perform, execute and deliver or cause to be performed, executed and
delivered at the Closing or after the Closing, any and all further acts,
instruments and
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<PAGE>
agreements and provide such further assurances as the other parties may
reasonably require to consummate the transaction contemplated hereunder.
5.11 Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
5.12 Attorneys' Fees. Should either party employ an attorney or
attorneys to enforce any of the provisions hereof or to protect its interest in
any manner arising under this Agreement, or to recover damages for breach of
this Agreement, the non-prevailing party in any action pursued in a court of
competent jurisdiction (the finality of which is not legally contested) agrees
to pay to the prevailing party all reasonable costs, damages, and expenses,
including attorneys' fees, expended or incurred in connection therewith.
5.13 Consent to BHR Merger. By its execution of this Agreement,
General Partner hereby consents, for purposes of Section 7.15 of the
Stockholders Agreement, to the acquisition of additional BHR Common Shares (as
defined in the Stockholders Agreement) in connection with and pursuant to the
BHR Merger.
IN WITNESS WHEREOF, this Agreement has been entered into effective as
of the 27th day of February, 2000.
CONTRIBUTOR:
BASS AMERICA, INC.,
a Delaware corporation
By: /s/ Julian Fortuna
---------------------------------
Name: Julian Fortuna
Title: Attorney-in-fact
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FLLP:
FELCOR LODGING LIMITED PARTNERSHIP,
a Delaware limited partnership
By: FelCor Lodging Trust
Incorporated, a Maryland
corporation, its general partner
By: /s/ Lawrence D. Robinson
---------------------------------
Lawrence D. Robinson,
Senior Vice President
GENERAL PARTNER:
FELCOR LODGING TRUST INCORPORATED,
a Maryland corporation
By: /s/ Lawrence D. Robinson
---------------------------------
Lawrence D. Robinson, Senior Vice
President
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EXHIBIT 4
POWER OF ATTORNEY
The undersigned individual, as President of Bass America Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Julian
Fortuna, acting individually, his true and lawful attorney-in-fact for the
following purpose:
To execute and deliver on behalf of the Company one or more amendments
to the Statement on Schedule 13D filed by the Company on November 9,
1998 relating to shares of Common Stock, par value $0.01 per share, of
FelCor Lodging Trust, Inc.
and hereby ratifies and confirms everything said attorney-in-fact may do by
virtue of this instrument.
In witness whereof, the undersigned has duly executed and delivered
this power of attorney as of the 28th day of February, 2000.
By: /s/ Andrew Simpson
------------------------
Name: Andrew Simpson
Title: President
EXHIBIT 5
POWER OF ATTORNEY
By this POWER OF ATTORNEY given on Monday the 28th day of February
2000, BASS PLC whose registered office is situated at 20 North Audley Street,
London W1Y 1WE (hereinafter called "the Company"),
1. HEREBY APPOINTS
Thomas Arasi, Andrew MacFarlane and David
R. Smith acting together or individually (each hereinafter called "the
Attorney") to be the lawful Attorney of the Company and in its name and
on its behalf but only to the extent and subject to the conditions
specified below:
1.1 To negotiate, execute and deliver on behalf of the Company the
proposed Agreement and Plan of Merger, by and among the
Company, BHR North America, Inc. and Bristol Hotels & Resorts,
Inc. (the "Merger Agreement") and to negotiate, execute and
deliver such other agreements, documents and other
instruments, and to take such other actions on behalf of the
Company, as may be necessary or advisable with respect to the
Merger Agreement and the transactions contemplated thereby,
including without limitation, (i) the tender offer of all of
the issued and outstanding shares of common stock of Bristol
Hotels & Resorts, Inc. contemplated by the Merger Agreement,
(ii) the merger of BHR North America, Inc. with and into
Bristol Hotels & Resorts, Inc. as contemplated by the Merger
Agreement, and (iii) the entering into of one or more
agreements with certain shareholders of Bristol Hotels &
Resorts, Inc. as contemplated by the Merger Agreement.
2. WE HEREBY DECLARE that the said appointment and the instructions herein
contained shall continue in effect from the date hereof for a period of
three months or until it is repealed by the Company.
This document is executed and delivered as a deed on the date stated at the
beginning of this document.
The Common Seal of Bass PLC was hereunto affixed in the presence of:
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/s/ Richard C. North
Director
[seal]
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/s/ Francis S. Wigley
Secretary
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