-----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, UZlKtdlZkCxk/8pijXzjBDfjj4ep5j21X4YVjHS0hMR9Ho5xpE1h5OW98Yak9kpB ihftOXxeXLNkpDneWWPxNg== 0001021231-02-000264.txt : 20021011 0001021231-02-000264.hdr.sgml : 20021011 20021011115835 ACCESSION NUMBER: 0001021231-02-000264 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20021011 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: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43551 FILM NUMBER: 02787141 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: SIX CONTINENTS PLC CENTRAL INDEX KEY: 0000858446 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 250420260 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 20 NORTH AUDLEY ST CITY: LONDON WIY 1WE ENGLA STATE: X0 ZIP: 32822 BUSINESS PHONE: 4045513500 MAIL ADDRESS: STREET 1: 20 NORTH AUDLEY ST STREET 2: - CITY: LONDON ENGLAND STATE: X0 ZIP: W1Y 1WE SC 13D/A 1 b687005_sched13d.txt =============================================================================== UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2) FELCOR LODGING TRUST INCORPORATED (Name of Issuer) COMMON STOCK $.01 PAR VALUE (Title of Class of Securities) ----------------------- 31430F101 (CUSIP Number) SCH MINORITY HOLDINGS, LLC SIX CONTINENTS HOTELS, INC. BRISTOL HOTELS & RESORTS SIX CONTINENTS PLC (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) October 1, 2002 (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 15 Pages - ------------------------ ---------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON SIX CONTINENTS 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 10,032,428 -------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------------------------------------- 9 SOLE DISPOSITIVE POWER 10,032,428 -------------------------------------------- 10 SHARED DISPOSITIVE POWER - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,032,428 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN |_| SHARES* - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.1% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- Page 2 of 15 SCHEDULE 13D - ------------------------ ---------------------------- CUSIP No. 31430F101 Page 3 of 15 Pages - ------------------------ ---------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON SCH MINORITY HOLDINGS LLC - ------------------------------------------------------------------------------- 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 -------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY EACH 7,161,697 REPORTING PERSON WITH -------------------------------------------- 9 SOLE DISPOSITIVE POWER -------------------------------------------- 10 SHARED DISPOSITIVE POWER 7,161,697 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,161,697 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN |_| SHARES* - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.2% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - ------------------------------------------------------------------------------- Page 3 of 15 SCHEDULE 13D - ------------------------ ---------------------------- CUSIP No. 31430F101 Page 4 of 15 Pages - ------------------------ ---------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON SIX CONTINENTS HOTELS, 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 -------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY EACH 2,457,046 REPORTING PERSON WITH -------------------------------------------- 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) 4.2% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- Page 4 of 15 SCHEDULE 13D - ------------------------ ---------------------------- CUSIP No. 31430F101 Page 5 of 15 Pages - ------------------------ ---------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BRISTOL HOTELS & RESORTS - ------------------------------------------------------------------------------- 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 -------------------------------------------- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY EACH 413,685 REPORTING PERSON WITH -------------------------------------------- 9 SOLE DISPOSITIVE POWER -------------------------------------------- 10 SHARED DISPOSITIVE POWER 413,685 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 413,685 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN |_| SHARES* - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.7% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- Page 5 of 15 This Amendment No. 2 ("Amendment No. 2") 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"), as amended by Amendment No. 1 to the Schedule 13D filed with Commission on February 29, 2000, 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. 2 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 amending and restating such Item in its entirety as follows: "The name of the persons filing this statement are SCH Minority Holdings, LLC, a Delaware limited liability company ("SCHMH"), Six Continents Hotels, Inc., a Delaware corporation ("SCH"), Bristol Hotels & Resorts, a Delaware corporation ("Bristol"), and Six Continents PLC, a public limited company organized under the laws of England and Wales ("Six Continents", and together with SCHMH, SCH and Bristol, the "Six Continents Entities" or the "Reporting Persons"). The address of the principal business and the principal office of SCHMH is Three Ravinia Drive, Suite 100, Atlanta, Georgia 30346. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of SCHMH is set forth on Schedule A. The address of the principal business and the principal office of SCH is Three Ravinia Drive, Suite 100, Atlanta, Georgia 30346. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of SCH is set forth on Schedule B. The address of the principal business and the principal office of Bristol is Three Ravinia Drive, Suite 100, Atlanta, Georgia 30346. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of Bristol is set forth on Schedule C. The address of the principal business and the principal office of Six Continents is 20 North Audley Street, London W1K 6WN, United Kingdom. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of Six Continents is set forth on Schedule D. Six Continents is a public limited company organized under the laws of England and Wales and is the ultimate parent of SCHMH, SCH and Bristol. The business of Six Continents and its subsidiaries comprises the ownership, management, leasing and franchising of hotels and resorts; the ownership and management of pubs, restaurants, bowling centers and leisure venues; and the production and distribution of soft drinks. The sole activity of SCHMH is the ownership of Shares. SCH owns, operates and franchises hotels under the names "Crowne Plaza", "Holiday Inn", "Holiday Inn Express" and "Staybridge Suites". Bristol leases and manages hotels in North America. Effective July 27, 2001, Bass PLC changed its corporate name to Six Continents PLC. In connection with the name change to Six Continents PLC, (i) Bass America, Inc. changed its corporate name to SixCo America, Inc. ("SCA") effective October 17, 2001 and (ii) Bass Hotels & Resorts, Inc. changed its corporate name to Six Continents Hotels, Inc. effective July 30, 2001. During the last five years, none of the Six Continents Entities, nor any other person controlling, controlled by or under common control with the Six Continents Entities, nor to the best of their knowledge, any of the persons listed on Schedules A, B, C and D attached hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of Page 6 of 15 competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws." Item 4. Purpose of Transaction. Item 4 is amended by inserting the following paragraphs immediately after the fourth paragraph thereof: "Upon consummation of the transactions contemplated by the Bristol Merger Agreement on April 6, 2000, Six Continents acquired beneficial ownership of 100% of the issued and outstanding share capital of Bristol. Pursuant to a Contribution Agreement, dated as of October 16, 2000, by and among SCA, FLLP and the Issuer (the "Second Contribution Agreement"), on November 1, 2000 SCA contributed 1,000,000 Shares (the "Additional Contributed Shares") to FLLP in exchange for 1,000,000 units of limited partnership interest in FLLP (the "Second Contribution"). The primary reason for the Second Contribution was to reduce the Six Continents Entities' percentage ownership interest in the Issuer in order to permit the Issuer to conduct a share repurchase program without adverse tax consequences to the Issuer. As a result of the Second Contribution, the Six Continents Entities decreased their ownership interest in the Issuer from approximately 8.1% to approximately 7.2%. Pursuant to a Leasehold Acquisition Agreement, dated October 12, 2000, by and among a predecessor company of Six Continents Hotels Operating Corp., an indirect wholly-owned subsidiary of Six Continents ("SCHOP"), and the Issuer (the "First Leasehold Acquisition Agreement"), on January 1, 2001 various wholly- owned subsidiaries of Bristol (the "Bristol Tenant Companies") transferred leases and related management contracts with respect to twelve of the Issuer's hotels that were not Six Continents-branded hotels, to the Issuer in exchange for the issuance of an aggregate of 413,585 Shares by the Issuer to the Bristol Tenant Companies (the "First Leasehold Exchange"). The First Leasehold Exchange, together with the Second Leasehold Exchange described below, were intended to qualify, and were treated by Six Continents, as one or more reorganizations within the meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended (the "Code"). As a result of the First Leasehold Exchange, the Six Continents Entities increased their ownership interest in the Issuer from approximately 7.2% to approximately 8.2%. Pursuant to a Leasehold Acquisition Agreement, dated March 30, 2001, by and among a predecessor company of SCHOP and the Issuer (the "Second Leasehold Acquisition Agreement"), on July 1, 2001 the Bristol Tenant Companies transferred leases with respect to 88 of the Issuer's hotels to a subsidiary of the Issuer in exchange for (i) the issuance of an aggregate of 100 Shares by the Issuer to the Bristol Tenant Companies, and (ii) the execution of long-term management agreements with respect to those 88 hotels (the "Second Leasehold Exchange"). The Second Leasehold Exchange, together with the First Leasehold Exchange described above, were intended to qualify, and were treated by Six Continents, as one or more reorganizations within the meaning of Section 368(a)(1)(C) of the Code. The Six Continents Entities' ownership interest in the Issuer remained at approximately 8.2% after consummation of the Second Leasehold Exchange. Effective September 30, 2001, each of the Bristol Tenant Companies was merged with and into Bristol (the "Bristol Tenant Companies Merger"). As a result of the Bristol Tenant Companies Merger, Bristol became the record owner of the 413, 685 Shares previously held of record by the Bristol Tenant Companies. Effective October 1, 2002, SCA was merged with and into SCHOP. As successor in interest to SCA as a result of the merger, SCHOP became the record holder of 1,448,512 Shares and 5,713,185 Units. In connection with this merger, SCHOP executed a joinder agreement, pursuant to which SCHOP agreed to be bound by the provisions of the Stockholders' and Registration Rights Agreement. Pursuant to an Exchange Agreement, dated as of October 1, 2002, by and among the Issuer, FLLP and SCHOP (the "Exchange Agreement"), SCHOP transferred to the Issuer 5,713,185 Units in exchange for the issuance by the Issuer of 5,713,185 Shares to SCHOP. In connection with the transactions contemplated by the Exchange Agreement, the Issuer's Board of Directors exempted the Six Continents Entities from certain provisions in the Page 7 of 15 Issuer's Articles of Amendment and Restatement that prohibit ownership by any person of more than 9.9% of the outstanding Shares. This exemption is subject to certain conditions, including the condition that Six Continents and its subsidiaries not own more than the greater of (i) 10,032,428 Shares, or (ii) 18% of the number of Shares outstanding at any time. As a result of the exchange, the Six Continents Entities increased their ownership interest in the Issuer from approximately 8.2% to approximately 17.1%. Effective October 1, 2002, SCHOP transferred 7,161,697 Shares to SCHMH. In connection with this transfer, SCHMH executed a joinder agreement, pursuant to which SCHMH agreed to be bound by the provisions of the Stockholders' and Registration Rights Agreement." 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, SCHMH beneficially owns 7,161,697 Shares, representing approximately 12.2% of the outstanding Shares of the Issuer; (a)(ii) For the purpose of Rule 13d-3 promulgated under the Exchange Act, SCH beneficially owns 2,457,046 Shares, representing approximately 4.2% of the outstanding Shares of the Issuer; (a)(iii) For the purposes of Rule 13d-3 promulgated under the Exchange Act, Bristol beneficially owns 413,685 Shares, representing approximately 0.7 % of the outstanding Shares of the Issuer; and (a)(iv) Six Continents, the indirect parent of SCHMH, SCH and Bristol, for purposes of Rule 13d-3 promulgated under the Exchange Act, beneficially owns 10,032,428 Shares (the Shares owned by SCHMH, SCH and Bristol), representing approximately 17.1% of the outstanding Shares of the Issuer. Except as set forth in this Item 5(a), none of the Six Continents Entities, nor any other person controlling, controlled by or under common control with, the Six Continents Entities, nor, to the best of their knowledge, any persons named in Schedules A, B, C or D hereto owns beneficially any Shares. (b)(i) SCHMH has shared power to vote and to dispose of 7,161,697 Shares. (b)(ii) SCH has shared power to vote and to dispose of 2,457,046 Shares. (b)(iii) Bristol has shared power to vote and dispose of 413,685 Shares. (b)(iv) Six Continents has shared power to vote and to dispose of 10,032,428 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 October 16, 2000, SCA, FLLP and the Issuer entered into the Second Contribution Agreement described in Item 4 above. Pursuant to the Second Contribution Agreement, SCA contributed 1,000,000 Shares to FLLP in exchange for 1,000,000 Units. Subject to certain conditions set forth in the Contribution Agreement, SCA 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 1,000,000 Shares that it contributed pursuant to the Second Contribution. Page 8 of 15 On October 12, 2000, a predecessor company of SCHOP and the Issuer entered into the First Leasehold Acquisition Agreement described in Item 4 above. Pursuant to the First Leasehold Acquisition Agreement, on January 1, 2001 the Bristol Tenant Companies transferred leases and related management contracts with respect to twelve of the Issuer's hotels to the Issuer in exchange for the issuance of an aggregate of 413,585 Shares by the Issuer to the Bristol Tenant Companies. On March 30, 2001, a predecessor company of SCHOP and the Issuer entered into the Second Leasehold Acquisition Agreement described in Item 4 above. Pursuant to the Second Leasehold Acquisition Agreement, on July 1, 2001 the Bristol Tenant Companies transferred leases with respect to 88 of the Issuer's hotels to a subsidiary of the Issuer in exchange for (i) the issuance of an aggregate of 100 Shares by the Issuer to the Bristol Tenant Companies, and (ii) the execution of long-term management agreements with respect to those 88 hotels. In connection with the merger of SCA with and into SCHOP described in Item 4 above, SCHOP entered into a joinder agreement, pursuant to which SCHOP agreed to be bound by the provisions of the Stockholders' and Registration Rights Agreement. On October 1, 2002, SCHOP, FLLP and the Issuer entered into the Exchange Agreement described in Item 4 above. Pursuant to the Exchange Agreement, SCHOP transferred to the Issuer 5,713,185 Units in exchange for the issuance by the Issuer of 5,713,185 Shares to SCHOP. In connection with the transactions contemplated by the Exchange Agreement, the Issuer's Board of Directors exempted the Six Continents Entities from certain provisions in the Issuer's Articles of Amendment and Restatement that prohibit ownership by any person of more than 9.9% of the outstanding Shares. This exemption is subject to certain conditions, including the condition that Six Continents and its subsidiaries not own more than the greater of (i) 10,032,428 Shares, or (ii) 18% of the number of Shares outstanding at any time. In connection with the transfer of Shares by SCHOP to SCHMH described in Item 4 above, SCHMH entered into a joinder agreement, pursuant to which SCHMH agreed to be bound by the provisions of the Stockholders' and Registration Rights Agreement." Item 7. Material to be Filed as Exhibits. Item 7 is amended by adding the following language at the end thereof: "Exhibit 4: Contribution Agreement, dated as of October 16, 2000, by and among SCA, FLLP and the Issuer. Exhibit 5: Leasehold Acquisition Agreement, dated as of October 12, 2000, by and among Bass (U.S.A.) Incorporated, in its individual capacity and on behalf of its subsidiaries and affiliates, and the Issuer, in its individual capacity and on behalf of its subsidiaries and affiliates. Exhibit 6: Leasehold Acquisition Agreement, dated as of March 30, 2001, by and among Bass (U.S.A.) Incorporated, in its individual capacity and on behalf of its subsidiaries and affiliates, and the Issuer, in its individual capacity and on behalf of its subsidiaries and affiliates (including as an exhibit thereto the form of Management Agreement for Six Continents-branded hotels) (incorporated herein by reference to Exhibit 10.28 of the Issuer's Form 10-Q for the quarter ended March 31, 2001). Exhibit 7: Joinder Agreement, dated as of October 1, 2002, by SCHOP. Exhibit 8: Exchange Agreement, dated as of October 1, 2002, by and among the Issuer, FLLP and SCHOP. Exhibit 9: Joinder Agreement, dated as of October 1, 2002, by SCHMH. Page 9 of 15 Exhibit 10: Power of Attorney, dated October 8, 2002." Schedules Schedule A is deleted in its entirety and replaced with Schedule A attached hereto. Schedule B is deleted in its entirety and replaced with Schedule B attached hereto. Schedule C is deleted in its entirety and replaced with Schedule C attached hereto. Schedule D is deleted in its entirety and replaced with Schedule D attached hereto. Page 10 of 15 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: October 11, 2002 SCH MINORITY HOLDINGS, LLC By: /s/ Michael L. Goodson ------------------------------------------- Name: Michael L. Goodson Title: President SIX CONTINENTS HOTELS, INC. By: /s/ Michael L. Goodson ------------------------------------------- Name: Michael L. Goodson Title: Senior Vice President, Americas Finance & Business Development BRISTOL HOTELS & RESORTS By: /s/ Robert J. Chitty ------------------------------------------- Name: Robert J. Chitty Title: Vice President Tax and Treasurer SIX CONTINENTS PLC By: /s/ Michael L. Goodson ------------------------------------------- Name: Michael L. Goodson Title: Attorney-in-fact Page 11 of 15 SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF SCHMH The name, business address, title, present principal occupation or employment of each of the directors and executive officers of SCHMH are set forth below. If no business address is given the director's or officer's business address is Three Ravinia Drive, Suite 100, Atlanta, GA 30346. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to SCH. 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 Address(1) of Employer - ---------------------------------- -------------------------------------------- Directors Michael L. Goodson................ Director and President of SCHMH; Senior Vice President, Americas Finance & Business Development. Robert J. Chitty.................. Director and Vice President, Tax & Treasurer of SCHMH; Vice President, Tax & Treasurer. Julian Fortuna.................... Director of SCHMH; Vice President & General Tax Counsel. Present Principal Occupation Name and Business Address Including Name and Address(2) of Employer - ---------------------------------- -------------------------------------------- Executive Officers (Who Are Not Directors) Not Applicable. - --------- (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 12 of 15 SCHEDULE B DIRECTORS AND EXECUTIVE OFFICERS OF SCH The name, business address, title, present principal occupation or employment of each of the directors and executive officers of SCH are set forth below. If no business address is given the director's or officer's business address is Three Ravinia Drive, Suite 100, Atlanta, GA 30346. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to SCH. 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 Address(1) of Employer - ---------------------------------- -------------------------------------------- Directors W. Douglas Lewis.................. Director, Executive Vice President & Chief Information Officer. Michael L. Goodson................ Director, Senior Vice President, Americas Finance & Business Development. Stevan D. Porter.................. Director, Chairman and President, Americas, Six Continents Hotels, Inc. Robert D. Hill.................... Director and Executive Vice President, General Counsel and Secretary. Thomas P. Murray.................. Director, Chief Operating Officer, The Americas. Thomas Seddon..................... Director, Senior Vice President, Americas Brands Strategy. Kate S. Stillman.................. Director, Senior Vice President, Americas Human Resources & Corporate Affairs. Present Principal Occupation Name and Business Address Including Name and Address(2) of Employer - ---------------------------------- -------------------------------------------- Executive Officers (Who Are Not Directors) James F. Anhut.................... Senior Vice President, Staybridge Suites. Angela I. Brav.................... Senior Vice President, Franchise Operations North America. Larry L. Burns.................... Senior Vice President, IT Enterprise System. Thomas P. Cossuto................. Senior Vice President, Financial Services. Vicki K. Gordon................... Senior Vice President, Corporate Affairs. Jonathan D. Kurnit................ Senior Vice President, Franchise & Real Estate Development. Robert J. Chitty.................. Treasurer and Vice President, Tax and Treasurer. James L. Kacena................... Vice President & General Counsel - Development & Acquisitions and Assistant Secretary. Morton H. Aronson................. Vice President & General Counsel - Franchising 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 13 of 15 SCHEDULE C DIRECTORS AND EXECUTIVE OFFICERS OF BRISTOL The name, business address, title, present principal occupation or employment of each of the directors and executive officers of Bristol are set forth below. If no business address is given the director's or officer's business address is Three Ravinia Drive, Suite 100, Atlanta, Georgia 30346. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to SCH. 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 Address(1) of Employer - ---------------------------------- -------------------------------------------- Directors W. Douglas Lewis.................. Director of Bristol; Executive Vice President & Chief Information Officer. Robert D. Hill.................... Director of Bristol; Executive Vice President, General Counsel and Secretary. Robert J. Chitty.................. Director and Vice President and Treasurer of Bristol; Treasurer and Vice President, Tax and Treasurer. James L. Kacena................... Director of Bristol; Vice President & General Counsel - Development & Acquisitions and Assistant Secretary. Present Principal Occupation Name and Business Address Including Name and Address(2) of Employer - ---------------------------------- -------------------------------------------- Executive Officers (Who Are Not Directors) John Longstreet................... Vice President and Regional Vice President of Operations - Southwest/Canada. John P. Tarantini................. Vice President and Regional Vice President of Operations - South/Caribbean. David A. Hom...................... Vice President and Secretary and Vice President & Associate General Counsel & 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 14 of 15 SCHEDULE D DIRECTORS AND EXECUTIVE OFFICERS OF SIX CONTINENTS The name, business address, title, present principal occupation or employment of each of the directors and executive officers of Six Continents are set forth below. If no business address is given the director's or officer's business address is 20 North Audley Street, London W1K 6WN, United Kingdom. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Six Continents. Unless otherwise indicated, all of the persons listed below are citizens of the United Kingdom. Present Principal Occupation Name and Business Address Including Name and Address(1) of Employer - ---------------------------------- -------------------------------------------- Directors Sir Ian Prosser................... Chairman; Non-Executive Deputy Director of BP plc and Non-Executive Director of Glaxo SmithKline plc. Roger Carr........................ Non-Executive Director; Chairman of Chubb PLC and a Non-Executive Director of Centrica PLC and Cadbury Schweppes PLC. Tim Clarke........................ Chief Executive; Non-Executive Director of Debenhams plc. Robert C. Larson.................. Non-Executive Director; Managing Director of Lazard and Chairman of Lazard Freres Real Estate Investors, LLC.; U.S. Citizen. Sir Geoffrey Mulcahy.............. Non Executive Director; Group Chief Executive of Kingfisher plc. Richard North..................... Director and Group Finance Director and Chairman of Britvic Soft Drinks; Non-Executive Director of Leeds United plc and FelCor Lodging Trust Incorporated. Thomas R. Oliver.................. Director and Chairman and Chief Executive Officer of Six Continents Hotels, Inc. (Three Ravinia Drive, Suite 100, Atlanta, Georgia 30346); U.S. Citizen. Bryan Sanderson................... Non-Executive Director; Chairman of BUPA and Sunderland PLC. Sir Howard Stringer............... Non-Executive Director; Chief Executive Officer of Sony Corporation of America. Karim Naffah...................... Strategy Director. Richard Winter.................... Group Company Secretary and General Counsel. Present Principal Occupation Name and Business Address Including Name and Address(2) of Employer - ---------------------------------- -------------------------------------------- Executive Officers (Who Are Not Directors) Not Applicable. - --------- (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 15 of 15 EX-4 3 b687005_ex4.txt Exhibit 4 =============================================================================== 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 - 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 - i - 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 2,448,212 shares of the common stock, par value $0.01 per share ("Common Stock"), of FelCor Lodging Trust Incorporated and desires to contribute 1,000,000 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. 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 January 1, 2001. 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, whether such Units are issued pursuant hereto or were issued pursuant to that certain Contribution Agreement among the parties hereto dated February 27, 2000. General Partner acknowledges that, for purposes of the Stockholders Agreement, the shares of Common Stock that may be issuable in redemption for all Units so issued to Contributor 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 the shares issuable upon redemption of all such Units to become effective pursuant to Section 2.1 thereof no later than December 31, 2000. The provisions of this Section 1.4 shall amend, modify, supercede and replace the provisions of Section 1.4 of that certain Contribution Agreement among the parties hereto dated February 27, 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 October - 3 - 16, 2000, there were issued and outstanding 65,365,076 Units having substantially equal rights with respect to all matters, including rights to receive distributions and upon liquidation, and an aggregate of 6,088,100 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 FelCor Lodging Trust Incorporated in Irving, Texas, or such other place as is mutually agreeable to the parties, at 12:00 noon on November 1, 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. 51-0338196 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. IN WITNESS WHEREOF, this Agreement has been entered into effective as of the 16th day of October, 2000. CONTRIBUTOR: BASS AMERICA, INC., a Delaware corporation By: /s/ F. Andrew Simpson -------------------------------------- Name: F. Andrew Simpson -------------------------------------- Title: President ------------------------------------- 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 - 10 - GENERAL PARTNER: FELCOR LODGING TRUST INCORPORATED, a Maryland corporation By: /s/ Lawrence D. Robinson ------------------------------------- Lawrence D. Robinson, Senior Vice President - 11 - EX-5 4 b687005_ex5.txt Exhibit 5 LEASEHOLD ACQUISITION AGREEMENT THIS LEASEHOLD ACQUISITION AGREEMENT ("Agreement") is made and entered into this 12th day of October, 2000, by and among Bass (U.S.A.) Incorporated ("Bass"), in its individual capacity and on behalf of its subsidiaries and affiliates, including but not limited to Bristol Hotel Tenant Company, Bristol Hospitality Tenant Company and Bristol Lodging Tenant Company (collectively, the "Bass Parties"), and FelCor Lodging Trust Incorporated ("FCH"), in its individual capacity and on behalf of its subsidiaries and affiliates (collectively, the "FCH Parties"). WITNESSETH: WHEREAS, one of the FCH Parties is the owner of, and one or more of the Bass Parties is the lessee, manager and/or franchisee of, each of the hotels described on Exhibit A attached hereto and incorporated herein by reference (individually, a "Hotel" and collectively, the "Hotels"); and WHEREAS, the parties hereto desire to provide for the transfer to FCH, or its designee, of all of the leasehold estates in, and the other assets related to the operation of, each such Hotel, all in accordance with the terms set forth herein, and the parties intend such transfer to qualify as one or more reorganizations within the meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986 (the "Code"). NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the parties hereto do hereby agree as follows: 1. With respect to each Hotel, Bass shall cause the leasehold estate owned by the Bass Parties in such Hotel (including all rights, title, interest and benefits arising under or by virtue of the lease creating such leasehold estate) and all rights, title, interest and benefits owned or held by the Bass Parties in, to or under all tangible and intangible assets, contract rights, licenses, permits and other assets, benefits or rights located at, relating to, or used primarily in the operation or maintenance of, such Hotel (collectively, the "Leasehold Assets") to be transferred to FCH, or its designee, effective upon the earlier of (i) the closing of a sale by any of the FCH Parties of such Hotel to an unrelated third party and (ii) 12:01 a.m. January 1, 2001. For purposes of this Agreement, an "unrelated third party" shall be one in which the FCH Parties hold or retain no more than a 50% interest. The provision of Paragraph 9 shall govern the transition of hotel operations as the Leasehold Assets are transferred. In no event shall the FCH Parties acquire, prior to January 1, 2001, any Leasehold Assets relating to a particular Hotel prior to the date of sale of such Hotel to an unrelated third party. 2. Concurrently with each transfer of Leasehold Assets to FCH or its designee, (a) FCH shall execute and deliver to Bass an indemnity agreement, in form and substance reasonably satisfactory to Bass, indemnifying the Bass Parties of and from any and all debts, liabilities, obligations, actions, causes of action, suits, and claims relating to such Leasehold Assets, or the Hotel to which such Leasehold Assets relate, that are incurred, or arise out of or relate to the -1- occurrence of any act, action, omission or event, on or after the effective date of such transfer and (b) Bass shall execute and deliver to FCH an indemnity and warranty agreement, in form and substance reasonably satisfactory to FCH, indemnifying the FCH Parties of and from any and all debts, liabilities, obligations, actions, causes of action, suits, and claims relating to such Leasehold Assets, or the Hotel to which such Leasehold Assets relate, that are existing or incurred, or arise out of or relate to the occurrence of any act, action, omission or event, prior to the effective date of such transfer and warranting that the Leasehold Assets transferred to FCH, or its designee, are, at the time of transfer, free and clear of any liens, claims or encumbrances whatsoever, and that no person held any right or option to acquire any interest in the Leasehold Assets that are being so transferred. In the event that either the Bass Parties or the FCH Parties (as opposed to any unrelated third party purchaser) shall incur any extraordinary cost, charge or expense with respect to obtaining any necessary consent to the transfer of Leasehold Assets contemplated hereby, or any termination payment or penalty in connection with the termination of any contract, license or permit which cannot be assigned (other than liquidated damages related solely to the termination of franchise agreements due to the sale of the Hotels to which they relate), in connection with the sale of any of the Hotels to an unrelated third party, any such cost, charge, or expense, and all real estate commissions and other costs and expenses incurred by the FCH Parties in effecting such sale, shall be payable out of the proceeds of sale of such Hotel. The net proceeds of sale received by the FCH Parties, whether in cash or other property (with any non-cash property being valued as provided in Paragraph 6 below), from the sale of any such Hotel, after the deduction of all such expenses related thereto, is hereinafter referred to as the "Net Proceeds" of such sale. 3. In consideration of and in exchange for the Bass Parties transfer of the Leasehold Assets to FCH, or its designees, pursuant to Section 1 hereof, FCH agrees to issue and pay to the applicable Bass Parties, on January 2, 2001: (A) Shares of common stock, par value $0.01 per share, in FCH ("Shares") having an aggregate value, determined in the manner provided in Section 4 below, most nearly equal to the sum of (i) with respect to Hotels which have not been sold by the FCH Parties to an unrelated third party on or before December 31, 2000, the aggregate "Post 12/31/00 Minimum Exchange Values" for such Hotels, as set forth opposite the names of such Hotels on Exhibit A attached hereto and incorporated herein by reference, plus (ii) with respect to the Hampton Inn - Dallas Downtown hotel, which the FCH Parties have elected to retain and not to offer for sale, an additional $167,000, to reflect an adjusted Minimum Exchange Value for this hotel of $1,652,000, plus (iii) with respect to Hotels which have been sold by the FCH Parties to an unrelated third party on or before December 31, 2000, the greater of (a) the aggregate of the "Pre 12/31/00 Minimum Exchange Values" for such Hotels and (b) 9% of the aggregate Net Proceeds actually received by the FCH Parties from the sale of such Hotels; and (B) With respect to each Hotel sold by the FCH Parties to an unrelated third party on or prior to December 31, 2000, cash in an amount equal to the aggregate dividends, having a record date between the date of the closing of such sale and December 31, 2000, both inclusive, which would have been paid on the number of -2- Shares allocable to such Hotel; and the aggregate number of Shares to be issued to Bass pursuant to subsection 3 (A) above shall be allocated among the Hotels, for purposes hereof, in direct proportion to the dollar value ascribed to each such Hotel for purposes of subsection 3 (A) above. 4. In consideration of and in exchange for the Bass Parties transfer of the Leasehold Assets to FCH, or its designees, pursuant to Section 1 hereof, FCH agrees to issue and pay to the applicable Bass Parties, on July 5, 2001: (A) With respect to those Hotels which are sold by the FCH Parties to an unrelated third party between January 1, 2001 and June 30, 2001 (both inclusive) under and pursuant to a binding agreement entered into, and under which any right of termination (other than as a result of breach) has expired, on or before December 31, 2000 (each, a "2000 Sale Contract"), that number of Shares having an aggregate value, determined in the manner provided in Section 5 below, most nearly equal to the amount, if any, by which (i) the greater of (a) the aggregate of the "Pre 12/31/00 Minimum Exchange Values" for such Hotels and (b) 9% of the aggregate Net Proceeds actually received by the FCH Parties from the sale of all such Hotels exceeds (ii) the aggregate "Post 12/31/00 Minimum Exchange Values" for all such Hotels, as set forth opposite the names of such Hotels on Exhibit A attached hereto and incorporated herein by reference; (B) With respect to each Hotel sold by the FCH Parties to an unrelated third party between January 1, 2001 and June 30, 2001 (both inclusive) under and pursuant to a 2000 Sale Contract, cash in an amount equal to the aggregate dividends having a record date between the date of the closing of such sale and June 30, 2001, both inclusive, which would have been paid on the number of Shares allocable to such Hotel; and the aggregate number of Shares to be issued to Bass pursuant to subsection 4 (A) above shall be allocated among such Hotels, for purposes hereof, in direct proportion to the dollar amount attributable to each such Hotel for purposes of subsection 4 (A) above; and (C) With respect to the Hotels sold by the FCH Parties to unrelated third parties between the date of this Agreement and June 30,2001 (both inclusive), under and pursuant to a 2000 Sale Contract, that number of Shares having an aggregate value, determined in the manner provided in Section 5 below, most nearly equal to 6% of the amount (if any) by which (i) the aggregate Net Proceeds actually received by the FCH Parties from the sale of such Hotels, exceeds (ii) the aggregate of the "Mid Point Gross Target Price" of such Hotels, as set forth on Exhibit A attached hereto and incorporated herein by reference. 5. FCH intends to purchase shares of its outstanding common stock, par value $0.01 per share, from time to time, in the open market at prevailing prices or through privately negotiated transactions during (i) the period commencing on the date hereof and ending on December 31, 2000 (the "First Pricing Period") and (ii) the period commencing on January 1, 2001 and ending on June -3- 30, 2001 (the "Second Pricing Period," and, together with the First Pricing Period, the "Pricing Periods"). All such purchases of FCH common stock shall be made by FCH in the ordinary course of business pursuant to its publicly announced stock repurchase program. Regardless of the actual number of shares of common stock purchased by FCH during the Pricing Periods, the average per share cost (including commissions) of all shares of common stock actually purchased by FCH (i) during the First Pricing Period shall constitute the value of each Share to be issued by FCH to Bass, pursuant to this Agreement, on January 2, 2001 and (ii) during the Second Pricing Period shall constitute the value of each Share to be issued by FCH to Bass, pursuant to this Agreement, on July 5, 2001. 6. In the event the Net Proceeds actually received from the sale by the FCH Parties of any of the Hotels on or prior to June 30, 2001, includes any evidence of indebtedness or other noncash property, such non-cash property shall be retained by the FCH Parties and shall be valued, for the purpose of determining the Net Proceeds of such sale, at the fair market value thereof (i) as agreed to by Bass and FCH within thirty (30) calendar days following the closing of the sale in which such non-cash property is so received or (ii) if Bass and FCH fall for any reason to agree in writing upon the fair market value of such non-cash property within such time period, as determined by an appraisal thereof. Within ten (10) business days following the expiration of such thirty (30) day period, FCH and Bass shall each have the right, by written notice to the other party, to appoint one appraiser. If two appraisers have been so appointed by the expiration of such ten (10) business day period, then the two appraisers so appointed shall promptly appoint a third appraiser. If three appraisers are appointed as herein provided, each shall promptly submit to FCH and Bass his appraisal of the fair market value of such non-cash property, and the average of the two most nearly equal appraisals of fair market value shall constitute the fair market value of the non-cash property so appraised, for the purpose of determining the Net Proceeds of the sale in which such property was received, and shall be final and binding upon all parties. If only one appraiser has been appointed prior to the expiration of such ten (10) business day period, then the one appraiser so timely appointed shall promptly submit to FCH and Bass his appraisal of the fair market value of such noncash property, which shall be final and binding upon all parties. On or before September 1, 2001, FCH shall cause to become effective under the Securities Act of 1933, as amended, a resale registration statement covering the resale of Shares issued pursuant to this Agreement. FCH hereby agrees to report the transfer of the Leasehold Assets by the Bass Parties to FCH, or its designee, on FCH's federal and conforming state income tax returns, as one or more tax-free reorganizations pursuant to Section 368(a)(1)(C) of the Code except to the extent that (i) FCH obtains the prior written consent of Bass to report such transaction or transactions in another manner or (ii) FCH is required to report such transaction or transactions in another manner by the Internal Revenue Service or applicable state taxing authority or by applicable judicial or administrative order. -4- 9. As and when the Leasehold Asset relating to each Hotel are transferred to FCH or its designee, the following transition rules will apply with respect to the Bass Parties' hotel operations activities at each such Hotel: (a) Employees. To the extent that FCH conveys any Hotel to a third party, or engages a third party management company or operator to manage any Hotel, concurrently with the transfer of the Leasehold Assets related to such Hotel by any of the Bass Parties; then, upon such transfer of the Leasehold Assets related to such Hotel by any of the Bass Parties to FCH, FCH agrees that it shall cause the purchaser or third party management company or operator, as the case may be, to offer employment to substantially all of the employees of any of the Bass Parties working in the Hotel at the time of such transfer. In the event any of the Bass Parties are obligated by current policies or employment agreements to make a severance payment to any employee not offered employment by the purchaser or third party management company, FCH shall indemnify the Bass Parties for the cost of such severance payment unless such payment is made to the general manager of the Hotel, in which case the severance cost shall be borne by the Bass Parties. In addition, FCH shall indemnify and hold the Bass Parties harmless against any and all claims, demands, causes of action, liabilities or judgements incurred by the Bass Parties arising out of or related to the the Worker Adjustment Retraining and Notification Act. Upon the transfer of the Leasehold Assets (the "Time of Transfer") the Bass Entities shall terminate or arrange for the termination of all Hotel Employees as of the Closing Date and shall pay to Hotel employees all wages (including accrued but unused vacation pay, if any) that any Hotel employee is owed, as of the Time of Transfer, pursuant to statute, collective bargaining agreement or contract, and such Hotel employees' wages, benefits and total remuneration shall be apportioned as of the Time of Transfer. Any required adjustment in such credits or payments shall be made within thirty (30) days after the Time of Transfer. FCH's purchaser shall not be required to assume any obligations under any employee benefit plans currently maintained for Hotel employees unless otherwise required by law. FCH's Purchaser shall not be required to assume existing collective bargaining agreements between any Bass Entity and any union. (b) Pre-Transfer Reservations and Agreements. FCH will cause the transferee of any Hotel, or any third party management company or operator operating any Hotel for FCH, to honor the terms and rates of all room reservations, room allocation and banquet facility and service agreements relating to such Hotel that are confirmed or entered into by any of the Bass Parties in the ordinary and normal course of business prior to the date of the transfer to FCH, or its designee, of the Leasehold Assets relating to such Hotel and that are to be honored or performed subsequent to the date of such transfer, but only if and to the extent that such room reservations, room allocation and banquet facility and service agreements are disclosed in a schedule of all such pre-transfer reservations and copies of all such agreements, or a statement of all applicable terms and conditions (where there are no written agreements), are attached to the "Working Capital Settlement Statement," as hereinafter defined. Any deposits or other payments received by any of the Bass Parties, whether before or after a transfer, in respect of any such disclosed room reservations, room -5- allocation and banquet facility and service agreements, to be honored or performed on or after the applicable date of transfer will be delivered to FCH promptly upon receipt, or credited to FCH in the "Working Capital Settlement Statement." FCH acknowledges that none of the Bass Parties has made any representations with respect to such agreements for facilities or services, and FCH assumes the risk of non-utilization of reservations and of non-performance of such agreements. FCH agrees to indemnify, defend and hold Bass harmless from and against any claim which may be asserted against any of the Bass Parties alleging that FCH has failed to honor any of such disclosed post-transfer reservations or agreements in accordance with their disclosed terms. (c) Working Capital Settlement. As of the date of the transfer of Leasehold Assets with respect to each Hotel, Bass and FCH, or any purchaser from FCH, as the case may be, shall jointly prorate rents, revenues, other income, taxes (including, personal property taxes), expenses, utility charges, assessments and charges related to each such Hotel based upon the most current information available on the transfer date; provided, however, the Bass Parties shall receive the entire advantage of any discounts for the prepayment of any taxes, assessments or charges made by it in the ordinary and normal course of business. Notwithstanding the foregoing, (i) all revenues from the rental of guest rooms (together with any sales or other taxes thereon) for the night of the transfer ("Room Revenues"); (ii) the invoice cost of the food, beverage and alcoholic beverage inventories owned by the Bass Parties at each Hotel that are in good and useable condition and in unopened containers (the "F&B Inventories"); (iii) prepaid deposits for confirmed reservations, hotel facilities and services for periods on or after the transfer date; (iv) the amounts of any accounts receivable of any guests who have not checked out and who are occupying rooms during the evening of the transfer (the "Tray Ledger"); and (v) cash on hand for petty cash and cashiers' banks (the "House Funds"), shall be jointly determined by Bass and FCH, or any purchaser from FCH, as the case may be, and set forth in the "Working Capital Settlement Statement." Since the financial results pertaining to the evening of transfer are necessary for the completion of the Working Capital Settlement Statement, Bass shall complete the posting of all such financial activity, all schedules, credit card billings and all other activities normally associated with the daily activity at each Hotel for the evening of transfer, under the supervision of FCH, or any purchaser from FCH, as the case may be. Any amounts determined to be due and owing to Bass by FCH shall be paid for by FCH, by wire transfer of immediately available funds to a bank account designated by Bass (or in such other form and manner as Bass may reasonably designate) within two business days following the completion and joint execution of the Working Capital Settlement Statement. The term "Working Capital Settlement Statement" shall mean a final accounting jointly prepared by accountants for Bass and FCH (or its designee) during the period between 8:00 p.m. local time (as applicable to each of the Hotels) on the date immediately preceding the transfer and 8:00 a.m. local time (as applicable to each of the Hotels) on the day of the transfer, the results of which shall be incorporated into a written operations settlement statement which shall be executed by both Bass and FCH, or its purchaser, as the case may be. For purposes of this Paragraph 9(c), the following shall apply: -6- (i) Room Revenues and F&B Revenues for the night of transfer (the "night of the transfer" being defined for purposes of this Paragraph 9(c) to mean the night immediately prior to the transfer date) shall be divided equally between FCH and Bass pursuant to the Working Capital Settlement Statement. All other revenues for the night of transfer shall belong solely to Bass. (ii) FCH shall purchase the Tray Ledger, the F&B Inventories and the House Funds (exclusive of any non-cash items) from Bass pursuant to the Working Capital Settlement Statement. (iii) All accounts receivable and accounts payable shall be retained by the applicable Bass Party for collection or payment by it. FCH, or any purchaser from FCH, shall cooperate with Bass in the collection of such receivables and shall promptly remit to Bass any payments received by it that relate to accounts receivable so retained by Bass. (iv) On the Transfer date, Bass shall credit to the account of FCH, or the purchaser from FCH, the amount of any deposits then held by Bass in respect of room reservations, room allocation and banquet facility and service agreements to be honored or performed subsequent to the transfer. (d) Liquor License transfer; interim agreements. The Bass Parties will cooperate in all reasonable respects (which shall include, without limitation, supplying information known to the Bass Parties and execution of such documents as may be legally required) with FCH and any purchaser or transferee from FCH in connection with the application for transfer of any existing alcoholic beverage licenses held by the Bass Parties or its agent in connection with its operation of the Hotel (the "Liquor License") to such purchaser or purchaser's application for a new Liquor License (as the case may be, the "Liquor Application"). FCH shall cause such purchaser to diligently and in good faith proceed with the Liquor Application. Without limiting the generality of the foregoing, if the purchaser is unable to obtain the transfer of the Liquor License or to obtain a new Liquor License prior to the transfer date, then, on the date of transfer, the appropriate Bass entity(ies) and such purchaser shall enter into an interim arrangement (the "Interim Agreement") whereby the Bass entity(ies) shall operate the liquor concessions at the Hotel on behalf of purchaser pending the transfer or issuance of the Liquor License to purchaser and purchaser and FCH shall indemnify, defend and hold such Bass entity(ies) harmless from and against any and all claims, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) arising in connection with such operation. (e) Guest Property in Seller's Possession on Date of Transfer. Property of guests of the Hotel in the care, possession or control (excluding that in guest rooms) of a Bass Party on the date of transfer shall be handled in the following manner: -7- (i) Safe Deposit Boxes. On the Closing Date, the appropriate Bass Party shall cause notice to be sent to all guests of the Hotel who have safe deposit boxes advising them of the pending sale and requesting the removal and verification of the contents of such safe deposit boxes within three (3) days after the Date of Transfer. The Bass Party may have a representative present at the Hotel during such three (3) day period for the purpose of viewing such removal and verification. Boxes of guests not responding to the written notice shall be listed at the end of such three day period. Such boxes shall be opened on the following day in the presence of representatives of the Bass Party, and purchaser and the contents thereof shall be recorded. Any property contained in the safe deposit boxes and so recorded and thereafter remaining in the hands of purchaser shall be the responsibility of purchaser; and FCH shall indemnify, or cause purchaser to indemnify, Bass Party against any claim or obligation arising out of or with respect to such property. The Bass Party shall be responsible for, and shall indemnify and hold FCH and its purchaser harmless from and against, any claim for property placed in the safe deposit boxes before the time of transfer that is not listed in said inventory. (ii) Baggage Inventory. All guest baggage and other guest property checked and left in the possession, care and control of any Bass Party shall be listed in an inventory to be prepared in duplicate and signed by representatives of the Bass Party, FCH and its purchaser on the date of transfer. FCH's purchaser shall be responsible from and after the Date of Transfer for all baggage (and the contents thereof) and other guest property listed in inventory, FCH's purchaser shall indemnify and save and hold Bass harmless from and against any claim arising out of or with respect to the baggage listed in the inventory, and Bass agrees to indemnify and save and hold FCH's purchaser harmless from and against any claim arising prior to the transfer date out of or with respect to any guest baggage or other guest property not listed in the inventory. (iii) This Section 9 (e) shall survive the transfer. (f) Cooperation Pending Sale. In order to facilitate a sale or change in management of any Hotel, Bass Party(ies) will grant access to each Hotel, upon reasonable notice and at reasonable times, to any prospective purchaser or operator, and shall cooperate in the communication of information concerning hotel operations to any such third party as requested by FCH. Bass and FCH shall agree upon a mutually-acceptable method whereby FCH may request and receive from Bass lists and copies of contracts, leases, inventories, personnel lists, reservations and similar information (collectively "due diligence materials"). Pending the sale or transfer of management of any Hotel, the Bass Party(ies) shall continue to operate such Hotel in the ordinary course of business, accepting reservations and maintaining stocks and inventories at normal levels. (g) Existing Franchise Agreements; Indemnity. The parties acknowledge that each of the -8- Hotels is currently operated under license from a third party (the "Franchisor") pursuant to a license or franchise agreement ("Franchise Agreement") between such Franchisor and a Bass Entity. Notwithstanding anything to the contrary in Section 2 hereof, in the event FCH sells or contracts to sell a Hotel to any third party or in the event FCH contracts on an interim basis or otherwise for the management of any Hotel by a third party, and such purchaser or manager does not apply for or receive approval for a franchise or license agreement from the same Franchisor as currently franchises such Hotel (or does not receive the right to continue to opeate the hotel under a temporary arrangement with the Franchisor), and such sale, contemplated sale or management arrangement results ultimately in the termination of the existing Franchise Agreement for such Hotel by the Franchisor together with a demand by such Franchisor that a Bass Party pay a termination fee or penalty by reason of such termination: (1) FCH shall indemnify and reimburse the Bass Party for any termination fee or penalty paid by such Bass Party to a Franchisor; and (2) Bass and/or the Bass Parties shall cooperate with FCH to mitigate or contest any such fee or penalty, and shall allow FCH to pursue in its name(s), any dispute, claim, litigation, arbitration or mediation disputing the assessibility or calculation of such fee or penalty. 10. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, together, shall be deemed one and the same agreement. 11. Any notice required or permitted to be given hereunder shall be in writing and shall be deemed to be delivered when delivered by hand or sent by registered or certified mail (return receipt requested and postage prepaid) or by reputable overnight courier service and addressed as follows: (a) If to any of the Bass Parties, to: Bass (U.S.A.) Incorporated Three Ravinia Drive, Suite 2900 Atlanta, GA 30346-2149 Attention: General Counsel -9- (b) If to any of the FCH Parties, to: FelCor Lodging Trust Incorporated 545 E. John Carpenter Frwy., Suite 1300 Irving, TX 75062 Attention: General Counsel 12. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective subsidiaries, affiliates, successors and assigns. 13. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings among the parties with respect to the matters set forth herein. No amendment or modification of this Agreement, or of any of the provisions hereof, shall be binding upon any party unless made in writing and signed by both Bass and FCH. 14. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws provisions. [SIGNATURES ON FOLLOWING PAGE] -10- IN WITNESS WHEREOF, FCH, on its own behalf and on behalf of the FCH Parties, and Bass, on its own behalf and on behalf of the Bass Parties, have each caused this agreement to be duly executed as of the day and year first above written by an officer thereunto duly authorized. FELCOR LODGING TRUST INCORPORATED By: /s/ LARRY J. MUNDY ---------------------------- Larry J. Mundy Senior Vice President BASS (U.S.A.) INCORPORATED By: /s/ MICHAEL CORR ---------------------------- Name: Michael Corr Title: Vice President -11- EX-7 5 b687005_ex7.txt Exhibit 7 JOINDER AGREEMENT This Joinder Agreement (this "Joinder Agreement") is made as of October 1, 2002 by Six Continents Hotels Operating Corp. (the "Joining Party") in accordance with the Stockholders' and Registration Rights Agreement dated July 28, 1998 (the "Stockholder Agreement") by and among FelCor Lodging Trust Incorporated (f/k/a FelCor Suite Hotels, Inc.)(the "Company"), Six Continents PLC (f/k/a Bass PLC), certain affiliates of Six Continents PLC and certain other stockholders of the Company, as the same may be amended from time to time. Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholder Agreement. "Exchange Agreement" shall mean the Exchange Agreement, dated as of the date hereof, by and among the Company, FelCor Lodging Limited Partnership and the Joining Party. The Joining Party hereby agrees that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholder Agreement as of the date hereof and, except to the extent set forth in the Exchange Agreement, shall have all of the rights and obligations of a "Stockholder" thereunder as if it had executed the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement. IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below. Date: October 1, 2002 SIX CONTINENTS HOTELS OPERATING CORP. By: /s/ ROBERT J. CHITTY ------------------------------------- Name: Robert J. Chitty Title: Vice President Address for Notices: Three Ravinia Drive, Suite 100 Atlanta, Georgia 30346-2149 Attention: General Counsel EX-8 6 b687005_ex8.txt Exhibit 8 =============================================================================== EXCHANGE AGREEMENT BY AND AMONG FELCOR LODGING LIMITED PARTNERSHIP, a Delaware limited partnership, FELCOR LODGING TRUST INCORPORATED, a Maryland corporation AND SIX CONTINENTS HOTELS OPERATING CORP. a Delaware corporation =============================================================================== TABLE OF CONTENTS ARTICLE I. The Exchange......................................................- 1 - 1.1 Transfer of Exchanged Units............................- 1 - 1.2 Issuance of Exchanged Shares...........................- 2 - 1.3 Consent and Waiver of the Company and FLLP.............- 2 - 1.4 Registration Rights....................................- 2 - 1.5 Additional Covenants...................................- 2 - ARTICLE II. Representations and Warranties....................................- 3 - 2.1 Representations by the Company and FLLP................- 3 - 2.2 Representations by the Holder..........................- 4 - ARTICLE III. Conditions Precedent to the Closing of the Company and FLLP.......- 6 - 3.1 Holder's Obligations...................................- 6 - 3.2 Holder's Representations and Warranties................- 6 - ARTICLE IV. Conditions Precedent to the Closing of the Holder.................- 6 - 4.1 The Company's and FLLP's Obligations...................- 6 - 4.2 Representations and Warranties of the Company and FLLP......................................- 6 - ARTICLE V. Closing and Closing Documents.....................................- 7 - 5.1 Closing................................................- 7 - 5.2 Holder's Deliveries....................................- 7 - 5.3 The Company's Deliveries...............................- 7 - ARTICLE VI. Miscellaneous.....................................................- 7 - 6.1 Notices................................................- 7 - 6.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies...................................- 9 - 6.3 Exhibits...............................................- 9 - 6.4 Successors and Assigns.................................- 9 - 6.5 Article Headings.......................................- 9 - 6.6 Governing Law..........................................- 9 - 6.7 Time Periods...........................................- 9 - 6.8 Counterparts...........................................- 9 - 6.9 Survival..............................................- 10 - 6.10 Further Acts..........................................- 10 - 6.11 Severability..........................................- 10 - 6.12 Attorneys' Fees.......................................- 10 - - i - EXCHANGE AGREEMENT THIS EXCHANGE AGREEMENT (this "Agreement") is made as of October 1, 2002 by and among FelCor Lodging Limited Partnership, a Delaware limited partnership ("FLLP"), FelCor Lodging Trust Incorporated, a Maryland corporation and the sole general partner of FLLP (the "Company"), and Six Continents Hotels Operating Corp., a Delaware corporation (the "Holder"). RECITALS: A. The Holder, as successor in interest to SixCo America, Inc. (f/k/a Bass America, Inc.), is the Assignee (as such term is defined in the Partnership Agreement) of 5,713,185 units of limited partnership interest ("Units") of FLLP (the "Exchanged Units"). B. The Holder desires to exchange the Exchanged Units with the Company for 5,713,185 newly issued shares of common stock, par value $0.01 per share ("Common Stock") of the Company (the "Exchanged Shares") and the Company desires to issue to the Holder the Exchanged Shares in exchange for the Exchanged Units, in each case on the terms and conditions hereinafter set forth. C. The Holder, as successor in interest to SixCo America, Inc. (f/k/a Bass America, Inc.), has agreed to be bound by all the provisions of that certain Stockholders' and Registration Rights Agreement dated July 28, 1998 (the "Stockholders Agreement"). D. The Company and certain other persons are parties to that certain Second Amended and Restated Agreement of Limited Partnership for FLLP dated as of December 31, 2001, as amended to date (the "Partnership 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 Exchange 1.1 Transfer of Exchanged Units. Holder agrees to transfer and assign the Exchanged Units to the Company and the Company agrees to accept such transfer and assignment of the Exchanged Units pursuant to the terms and conditions set forth in this Agreement. The Exchanged Units shall be transferred to the Company at Closing (as defined below) free and clear of all liens, encumbrances, security interests, prior assignments or conveyances, conditions, restrictions (including any restriction on the right to vote, sell, or otherwise dispose of such securities), claims and other matters affecting title and voting rights ("Liens"), other than restrictions set forth in the Partnership Agreement. - 1 - 1.2 Issuance of Exchanged Shares. In consideration of the transfer and assignment of the Exchanged Units from the Holder, the Company agrees to issue the Exchanged Shares to the Holder and the Holder hereby agrees to accept the issuance of the Exchanged Shares, pursuant to the terms and conditions set forth in this Agreement. The Exchanged Shares shall be issued to the Holder at Closing free and clear of all Liens, other than restrictions set forth in the Stockholders Agreement or the Articles of Amendment and Restatement, as amended to date, of the Company (the "Company Charter"). 1.3 Consent and Waiver of the Company and FLLP. (a) FLLP hereby expressly consents to the transfer of the Exchanged Units as contemplated by this Agreement and irrevocably waives any and all rights under the Partnership Agreement or the Stockholders Agreement to object to or to fail to recognize or give effect to such transfer. (b) The Company hereby expressly consents to the transfer of the Exchanged Units as contemplated by this Agreement and irrevocably waives any and all rights under the Partnership Agreement or the Stockholders Agreement to object to or to fail to recognize or give effect to such transfer. 1.4 Registration Rights. The Company shall file with the Securities and Exchange Commission (the "SEC") (i) a registration statement under Rule 415 promulgated under the Securities Act of 1933, as amended (or any similar rule or regulation promulgated hereafter by the SEC), or (ii) an amendment to the existing registration statement (File No. 333-51588), with respect the resale of the Exchanged Shares, and use its reasonable best efforts to cause the same to become effective not later than six months following the Closing Date. In addition, (i) the Holder and its Permitted Transferees (as defined in the Stockholders Agreement) shall have the rights (other than with respect to the filing of a registration statement), and be subject to the limitations, set forth in the Stockholders Agreement, and (ii) the Exchanged Shares shall be deemed "Registrable Securities" for purposes of the Stockholders Agreement; provided, however, that upon presentation of reasonably acceptable documentation, the Holder shall pay, or reimburse the Company for, all expenses reasonably and necessarily incurred by it, up to a maximum of $20,000.00, in the fulfillment of its obligations under the first sentence of this Section 1.4 1.5 Additional Covenants. The Company hereby covenants and agrees that, in its capacity as general partner of FLLP: (a) for a period of two years after the Closing Date it shall not take any action to cause or permit FLLP to distribute or otherwise transfer any shares of Common Stock owned by FLLP to the Company; and (b) pursuant to Section 4.5(f) of the Partnership Agreement, it shall cause the allocations contained in Article V of the Partnership Agreement to be applied to reflect the varying interests of SixCo America, Inc. and the Company during the year in which the exchange contemplated by Article I hereof occurs by allocating items attributable to the Exchanged Units for - 2 - such year between SixCo America, Inc. and the Company in accordance with FLLP's usual and customary method for allocating income between a holder of Units that redeems such Units and the Company. ARTICLE II. Representations and Warranties 2.1 Representations by the Company and FLLP. The Company and FLLP hereby represent and warrant unto the Holder 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) The Company 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 the Company of its obligations under this Agreement (including, without limitation, the issuance of the Exchanged Shares to the Holder) have been approved by the Board of Directors of the Company 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 the Company. (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; that the execution and delivery of this Agreement and the performance by FLLP of its obligations under this Agreement have been approved by its general partner and require no further action or approval by 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 the Company 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, articles of incorporation, bylaws, certificate of limited partnership, partnership agreement, mortgage, indenture, loan agreement, note, contract, permit, judgment, decree, order, restrictive covenant, statute, rule or regulation applicable to the Company or FLLP, except to the extent waived by the Company as described in subparagraph (h) below. (d) The Company is acquiring the Exchanged Units 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. - 3 - (e) The Exchanged Shares, 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. The Exchanged Shares will be issued to Holder free and clear of all Liens, other than restrictions set forth in the Stockholders Agreement or the Company Charter. (f) 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 (including, without limitation, the issuance of the Exchanged Shares to the Holder by the Company) on the part of the Company or FLLP. (g) The issuance, sale and delivery by the Company of the Exchanged Shares, will not 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 articles of incorporation or bylaws of the Company or the certificate of limited partnership or the Partnership Agreement, except to the extent waived by the Company as described in subparagraph (h) below; any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the Company 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, upon any property or asset of the Company or FLLP. (h) The Company has taken all action necessary to render Sections D.(2)(a) and (b) and D.(3)(a) of Article V of the Company Charter inapplicable to (i) the issuance and transfer of the Exchanged Shares to the Holder, (ii) any transfer of shares of Common Stock by the Holder to any Affiliate (as defined in the Stockholders Agreement) of the Holder, and (iii) the ownership by the Holder and its Affiliates, in the aggregate, of the greater of (A) 10,032,428 shares of Common Stock, and (B) shares of Common Stock representing 18% of the outstanding shares of Common Stock at any time. (i) The Company and all of its controlled subsidiaries and affiliates do not hold assets with an aggregate fair market value of more than $50 million, except for assets that are exempt from the Hart-Scott-Rodino Antitrust Improvements Act of 1976 pursuant to 16 C.F.R. ss.ss. 802.2, 802.3 or 802.5. For purposes of this section, "control" has meaning ascribed to it in 16 C.F.R. ss. 801.1(b). 2.2 Representations by the Holder. The Holder hereby represents and warrants unto the Company and FLLP 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: - 4 - (a) The Holder 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; that the execution and delivery of this Agreement and the performance by the Holder of its obligations under this Agreement have been approved by the Board of Directors of the Holder and require no further action or approval of the Holder's directors or shareholders or of any other individuals or entities in order to constitute this Agreement as a binding and enforceable obligation of the Holder. (b) Neither the entry into nor the performance of, or compliance with, this Agreement by the Holder 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, mortgage indenture, loan agreement, note, contract, permit, judgment, decree, order, restrictive covenant, statute, rule or regulation applicable to the Holder. (c) (i) The Holder, as Assignee (as defined in the Partnership Agreement), is the sole owner of the Exchanged Units, (ii) the Exchanged Units are free and clear of all Liens, other than restrictions set forth in the Partnership Agreement, and (iii) the Holder has not granted any other person or entity an option to purchase or a right of first refusal upon the Exchanged Units. (d) Assuming the representation and warranty set forth in Section 2.1(i) is true and correct, 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 the Holder, other than for purposes of the Stockholders Agreement, the approval of the Board of Directors of the Company of the transactions contemplated by this Agreement. (e) The Holder is familiar with the business and financial condition of the Company, and is not relying upon any representations made to it by the Company or any of its officers, employees or agents that are not contained or referred to herein. (f) The Holder is aware of the risks involved in making an investment in the Common Stock. The Holder has had an opportunity to ask questions of, and to receive answers from, the Company or a person or persons authorized to act on their behalf, concerning the terms and conditions of the investment in the Common Stock contemplated hereby and the financial condition, affairs and business of the Company. The Holder confirms that all documents, records and information pertaining to the investment in the Common Stock contemplated hereby that have been requested by it have been made available or delivered to it prior to the date hereof. (g) The Holder understands that the Exchanged Shares have not 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 Exchanged Shares are being acquired by Holder solely for its own account, for investment, and are not being - 5 - 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 previously disclosed to the Company, Holder has no present intention to enter into any contract, undertaking, agreement or arrangement with respect to any such resale. Holder understands that the Exchanged Shares will contain appropriate legends reflecting the requirement that the Exchanged Shares not be resold by Holder without registration under such laws or the availability of an exemption from such registration. (h) The Holder is an accredited investor as that term is defined in Rule 501 of Regulation D of the SEC. (i) The Holder has obtained from its own counsel advice regarding the tax consequences of the exchange of the Exchanged Units for the Exchanged Shares. The Holder further represents and warrants that it has not relied on the Company, FLLP, or their representatives or counsel for such tax advice. ARTICLE III. Conditions Precedent to the Closing of the Company and FLLP In addition to any other conditions set forth in this Agreement, the Company's and FLLP's obligations to consummate the Closing are 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 the Company's and FLLP's obligations under this Agreement. 3.1 Holder's Obligations. The Holder shall have performed all obligations of Holder hereunder which are to be performed prior to Closing. 3.2 Holder's Representations and Warranties. The Holder'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. Conditions Precedent to the Closing of the Holder In addition to any other conditions set forth in this Agreement, the Holder'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 IV, all of which shall be conditions precedent to the Holder's obligations under this Agreement. - 6 - 4.1 The Company's and FLLP's Obligations. The Company and FLLP shall have performed all obligations of the Company and FLLP, respectively, hereunder which are to be performed prior to Closing. 4.2 Representations and Warranties of the Company and FLLP. The Company's and FLLP's representations and warranties set forth in Section 2.1 shall be true and correct in all material respects as if made again on the Closing Date. ARTICLE V. Closing and Closing Documents 5.1 Closing. The consummation and closing (the "Closing") of the transactions contemplated under this Agreement shall take place at the offices of the Holder in Atlanta, Georgia, or such other place as is mutually agreeable to the parties, at 12:00 noon on October 1, 2002 (the "Closing Date"), or as otherwise set by agreement of the parties. 5.2 Holder's Deliveries. At the Closing and at the Holder's sole cost and expense, the Holder shall deliver the following to the Company in addition to all other items required to be delivered to the Company by the Holder: (a) Certificate for Contributed Assets. Certificate(s) representing the Exchanged Units, duly endorsed for transfer. (b) Authority Documents. Evidence satisfactory to the Company that the person or persons executing the closing documents on behalf of the Holder have full right, power and authority to do so. 5.3 The Company's Deliveries. At the Closing, and at the Company's sole cost and expense, the Company shall deliver the following to the Holder: (a) Certificate for Exchanged Shares. A certificate duly issued by the Company in the name of the Holder as of the Closing Date representing the Exchanged Shares. (b) Authority Documents. Evidence satisfactory to the Holder that the person or persons executing the closing documents on behalf of the Company have full right, power and authority to do so. ARTICLE VI. Miscellaneous 6.1 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 - 7 - 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. The Company and FLLP's address for all purposes under this Agreement shall be the following: 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 The Holder's address for all purposes under this Agreement shall be the following: Six Continents Hotels Operating Corp. Three Ravinia Drive Suite 100 Atlanta, Georgia 30346-2149 Attention: General Counsel Fax No. (770) 604-8551 with a copy to: Six Continents Hotels, Inc. Three Ravinia Drive Suite 100 Atlanta, Georgia 30346-2149 Attention: Vice President-Tax Fax No. (770) 604-2090 with a further copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 - 8 - Attention: Michael Mollerus Fax No. (212) 450-4800 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. 6.2 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 the Company, FLLP or the Holder upon any breach under this Agreement shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter occurring. The waiver by the Company, FLLP or the Holder 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 the Company, FLLP or the Holder 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. 6.3 Exhibits. All exhibits referred to in this Agreement and attached hereto are hereby incorporated in this Agreement by reference. 6.4 Successors and Assigns. Except as set forth in this Article, this Agreement may not be assigned by the Company, FLLP or the Holder without the prior approval of the other parties hereto. This Agreement shall be binding upon, and inure to the benefit of, the Company, FLLP and the Holder and their respective legal representatives, successors, and permitted assigns. The rights and obligations of the Holder under Section 1.4 hereof may be assigned by the Holder to any Permitted Transferee of the Exchanged Shares. 6.5 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. 6.6 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware. - 9 - 6.7 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. 6.8 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. A facsimile copy of a signature page shall be deemed to be an original signature page. 6.9 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. 6.10 Further Acts. In addition to the acts, instruments and agreements recited herein and contemplated to be performed, executed and delivered by FLLP, the Company and the Holder, FLLP, the Company and the Holder 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 agreements and provide such further assurances as the other parties may reasonably require to consummate the transaction contemplated hereunder. 6.11 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. 6.12 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. - 10 - IN WITNESS WHEREOF, this Agreement has been entered into effective as of the date first written above. FLLP: FELCOR LODGING LIMITED PARTNERSHIP, a Delaware limited partnership By: FelCor Lodging Trust Incorporated, a Maryland corporation, its sole general partner By: /s/ LAWRENCE D. ROBINSON ---------------------------------------- Name: Lawrence D. Robinson Title: Executive Vice President & General Counsel THE COMPANY: FELCOR LODGING TRUST INCORPORATED, a Maryland corporation By: /s/ LAWRENCE D. ROBINSON --------------------------------------- Name: Lawrence D. Robinson Title: Executive Vice President & General Counsel THE HOLDER: SIX CONTINENTS HOTELS OPERATING CORP., a Delaware corporation By: /s/ ROBERT J. CHITTY --------------------------------------- Name: Robert J. Chitty Title: Vice President - 11 - EX-9 7 b687005_ex9.txt Exhibit 9 JOINDER AGREEMENT This Joinder Agreement (this "Joinder Agreement") is made as of October 1, 2002 by SCH Minority Holdings, LLC (the "Joining Party") in accordance with the Stockholders' and Registration Rights Agreement dated July 28, 1998 (the "Stockholder Agreement") by and among FelCor Lodging Trust Incorporated (f/k/a FelCor Suite Hotels, Inc.)(the "Company"), Six Continents PLC (f/k/a Bass PLC), certain affiliates of Six Continents PLC and certain other stockholders of the Company, as the same may be amended from time to time. Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholder Agreement. "Exchange Agreement" shall mean the Exchange Agreement, dated as of the date hereof, by and among the Company, FelCor Lodging Limited Partnership and Six Continents Hotels Operating Corp. The Joining Party hereby agrees that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholder Agreement as of the date hereof and, except to the extent set forth in the Exchange Agreement, shall have all of the rights and obligations of a "Stockholder" thereunder as if it had executed the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement. IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below. Date: October 1, 2002 SCH MINORITY HOLDINGS, LLC By: /s/ ROBERT J. CHITTY --------------------------------- Name: Robert J. Chitty Title: Vice President Address for Notices: Three Ravinia Drive, Suite 100 Atlanta, Georgia 30346-2149 Attention: General Counsel EX-10 8 b687005_ex10.txt Exhibit 10 POWER OF ATTORNEY By this POWER OF ATTORNEY given on Tuesday the 8th day of October, 2002, SIX CONTINENTS PLC whose registered office is situated at 20 North Audley Street, London W1K 6WN (hereinafter called "the Company"), 1. HEREBY APPOINTS Robert Chitty and Michael Goodson 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 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., as amended to date, and to execute and deliver such other documents as may be required under the U.S. Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder. 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 Six Continents PLC was hereunto affixed in the presence of: /s/ T. Clarke - ------------------------- Tim Clarke [Seal] Director /s/ R. I. Winter - ------------------------- Richard I. Winter Secretary -----END PRIVACY-ENHANCED MESSAGE-----