-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NklPhcl6rlgHad5G9U04kmyD7FNmSeqObebSmXZMZEnU34R5555Jekk88DRN1eZy kV7X4IhTKIThuR9iUrnTfA== 0000950103-00-000286.txt : 20000302 0000950103-00-000286.hdr.sgml : 20000302 ACCESSION NUMBER: 0000950103-00-000286 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000229 GROUP MEMBERS: BASS AMERICA INC GROUP MEMBERS: BASS HOTELS & RESORTS, INC. GROUP MEMBERS: BASS PLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FELCOR LODGING TRUST INC CENTRAL INDEX KEY: 0000923603 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 752541756 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43551 FILM NUMBER: 557877 BUSINESS ADDRESS: STREET 1: 545 E JOHN CARPENTER FREEWAY STREET 2: SUITE 1300 CITY: IRVING STATE: TX ZIP: 75062 BUSINESS PHONE: 9724444900 MAIL ADDRESS: STREET 1: 545 E JOHN CARPENTER FREEWAY STREET 2: SUITE 1300 CITY: IRVING STATE: TX ZIP: 75062 FORMER COMPANY: FORMER CONFORMED NAME: FELCOR SUITE HOTELS INC DATE OF NAME CHANGE: 19940523 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BASS AMERICA INC CENTRAL INDEX KEY: 0000883576 STANDARD INDUSTRIAL CLASSIFICATION: MALT BEVERAGES [2082] IRS NUMBER: 510338196 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: THREE RAVINA DR STREET 2: SUITE 2900 CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 7076042348 MAIL ADDRESS: STREET 1: THREE RAVINA DR STREET 2: SUITE 2900 CITY: ATLANTA STATE: GA ZIP: 30346 SC 13D/A 1 =============================================================================== 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: [ ] =============================================================================== 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 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 SCHEDULE 13D - --------------------------- ------------------------ CUSIP No. 31430F101 Page 4 of 9 Pages --------------- --- --- - --------------------------- ------------------------ - ------------------------------------------------------------------------------- 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 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 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 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 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 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. Present Principal Occupation Name and Business Address Including Name and Address1 of Employer - ------------------------------------ -------------------------------------------------------------------- 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).
Present Principal Occupation Name and Business Address Including Name and Address2 of Employer - ------------------------------------ -------------------------------------------------------------------- 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.
- -------- 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 EX-3 2 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 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- 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- 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- 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- 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- 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- 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. -5- (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. -6- 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: -7- 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 -8- 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 -9- 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 -10- 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 -11- EX-4 3 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 EX-4 4 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: - ------------------------------------ /s/ Richard C. North Director [seal] - ------------------------------------ /s/ Francis S. Wigley Secretary 1 -----END PRIVACY-ENHANCED MESSAGE-----