-----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, Ed7EMBpOgnbak/xTSjLj5ggXQ+pFprD71cT+7tz0kXK2kLnA2Rm24WYeall5XQxZ wph6MD4H+ykcq7bPWkJUhA== 0000950134-98-003503.txt : 19980424 0000950134-98-003503.hdr.sgml : 19980424 ACCESSION NUMBER: 0000950134-98-003503 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980324 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980423 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FELCOR SUITE HOTELS INC CENTRAL INDEX KEY: 0000923603 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 752541756 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-14236 FILM NUMBER: 98599859 BUSINESS ADDRESS: STREET 1: 545 E JOHN CARPENTER FREEWAY STREET 2: SUITE 1300 CITY: IRVING STATE: TX ZIP: 75062 BUSINESS PHONE: 2144444900 MAIL ADDRESS: STREET 1: 545 E JOHN CARPENTER FREEWAY STREET 2: SUITE 1300 CITY: IRVING STATE: TX ZIP: 75062 8-K 1 FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): March 24, 1998 FELCOR SUITE HOTELS, INC. (Exact name of registrant as specified in its charter) MARYLAND 1-14236 72-2541756 (State or other jurisdiction of (Commission File Number) (IRS Employer incorporation) Identification No.) 545 E. JOHN CARPENTER FREEWAY, SUITE 1300, IRVING, TEXAS 75062 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (972) 444-4900 (NOT APPLICABLE) (Former name or former address, if changed since last report) 2 ITEM 5. OTHER EVENTS On March 24, 1998, FelCor Suite Hotels, Inc. ("FelCor") announced that, on March 23, 1998, it had entered into an Agreement and Plan of Merger (the "Merger Agreement") with Bristol Hotel Company ("Bristol"). Under the Merger Agreement, Bristol will be merged with and into FelCor. The merger was unanimously approved by the boards of both companies subject to final documentation. The merger is expected to close near the end of June 1998. Bristol is one of the largest owner/operators of full-service hotels in the United States. Bristol operates 101 hotels in 22 states and Canada, of which 89 are owned or leased. Bristol's hotels are primarily full-service hotels that operate in the midscale to upscale segments of the lodging industry. Bristol is the largest franchisee of Holiday Hospitality Corporation ("Holiday Hospitality") branded of hotels, including Crowne Plaza(R), Holiday Inn Select(R) and Holiday Inn(R), and also operates 19 hotels under other brands, including Hampton Inn(R), Courtyard by Marriott(R) and Fairfield Inn(R). Bristol has also entered into an agreement with Omaha Hotel, Inc. to acquire by merger 20 hotels (the "Omaha Acquisition"), 14 of which are operated under Holiday Hospitality brands. The Omaha Acquisition is expected to close at the end of April 1998. In November 1997, Bristol commenced a $400 million renovation and rebranding program for 51 of its hotels. This program is expected to be substantially completed by the end of 1999 and to result in the rebranding of 20 hotels to the Crowne Plaza brand. In the merger, FelCor will acquire Bristol's hotel properties in return for approximately 31.1 million newly issued shares of FelCor's common stock based upon an exchange ratio of 0.685 shares of common stock of FelCor for each share of common stock of Bristol. FelCor will also assume approximately $0.8 billion in Bristol debt. When completed, FelCor is expected to have a market capitalization of approximately $3.9 billion (based upon the closing price of FelCor common stock of $36 1/8 per share on March 23, 1998, and including $1.5 billion in debt) and to own 193 hotels with more than 49,000 rooms, including announced pending acquisitions. The merger is expected to be accretive to FelCor's funds from operations for 1998 and 1999 despite the ongoing renovation program by Bristol. A special cash distribution of Bristol's accumulated earnings and profits is expected to be paid to the shareholders of the merged company at the end of 1998. Prior to the merger, Bristol will spin-off to its shareholders, as a taxable dividend, all of its hotel operating business into a separate publicly traded company named Bristol Hotels & Resorts ("BHR"). BHR will become one of FelCor's two major tenants, with leases on all of the Bristol hotels included in the merger. The initial terms of these leases will be from five to fifteen years, with optional renewals upon the same terms of up to a total term of 15 years. BHR will continue to be Holiday Hospitality's largest franchisee and will commit to add 8,700 Holiday-branded rooms over the next five years to its portfolio. It is expected that BHR and FelCor will work together in the acquisition and leasing of additional hotels. At the closing of the merger, FelCor's common stock will be owned approximately 56% by FelCor shareholders and 44% by Bristol shareholders. Affiliates of Bass plc and Hampstead Group, which each currently own 32% of Bristol, will each have an approximate 13% equity stake in FelCor. Both of these Bristol investors have agreed to vote their shares in favor of the merger. Bass plc and its subsidiaries will reduce their ownership in BHR to 9.9%, in order to ensure FelCor's compliance with REIT requirements. Outstanding Bristol options will be split into options for both FelCor and BHR shares. The existing vesting schedules will continue with no options vesting for change of control. Future service with either company will satisfy vesting requirements. Fairness opinions have been received from FelCor's investment advisor, BT Wolfensohn, and Bristol's investment advisor, Merrill Lynch. The proposed merger is subject to shareholder approval and other customary conditions. FelCor and BHR will be completely independent public companies with no overlap in managements or boards of directors. However, three current Bristol board members will become FelCor board members upon the merger and not serve on BHR's board: Donald J. McNamara, Chairman of The Hampstead Group; Richard C. North, Financial Director of Bass plc; and Robert H. Lutz, Jr. Chairman and CEO of Amresco, Inc. Both companies will maintain their existing headquarters facilities in Dallas. FelCor will continue to operate as a REIT. BHR will operate as a C-corporation and will apply for listing on the New York Stock Exchange. Under the Merger Agreement, a break-up fee of $65 million, subject to certain limitations, must be paid by either Bristol or FelCor if the Merger Agreement is terminated due to its breach of a representation, warranty or covenant that cannot be cured by September 30, 1998, if its board of directors withdraws its recommendation of the Merger or recommends a competing proposal or takes certain other actions in pursuit of a competing transaction. Pursuant to certain requirements in the Merger Agreement, on April 21, 1998, FelCor agreed to lend $120 million to Bristol, at LIBOR plus 2%, in order to fund (i) the cash portion of the purchase price and prepayment of certain debt assumed as a result of the Omaha Acquisition, (ii) the purchase of a Holiday Inn hotel, (iii) the prepayment by Bristol of $30 million of senior debt, and (iv) $33 million of Bristol's on-going renovation costs. Loan advances will be made when needed for their designated uses. The loan will be secured by mortgages on hotels, and pledges of ownership interests in entities that own hotels, valued in excess of $100 million, net of first lien debt. The loan will be due 120 days after termination of the Merger Agreement for any reason, except that if FelCor's shareholders fail to approve the Merger, up to $56.2 million of the loan would be converted to an unsecured debt of Bristol due December 31, 2003. The merger is expected to add 109 primarily full-service hotels with more than 28,000 rooms to FelCor's portfolio and create a new significant relationship for FelCor with BHR and Bass plc through Holiday Hospitality and Bass's recently announced pending acquisition of Inter-Continental. The average Bristol hotel has 266 rooms and more than 8,000 square feet of meeting space. The average cost to FelCor of the hotels to be acquired in the merger is approximately $66,000 per room. In addition to its current standing as the largest owner of hotels branded by Promus Hotels, Inc. ("Promus"), FelCor expects to become, as a result of the merger, the world's largest owner of Holiday Hospitality branded hotels. FelCor expects to change its name upon closing of the transaction to "FelCor Lodging Trust Incorporated" or a similar name. The following table sets forth certain information with respect to each of the hotels that FelCor expects to acquire from Bristol.
NUMBER HOTEL NAME LOCATION OF ROOMS ---------- -------- -------- OWNED OR LEASED HOTELS Holiday Inn -- Montgomery......................................... Montgomery, AL 213 Holiday Inn -- Texarkana I-30..................................... Texarkana, AR 210 Days Inn -- Flagstaff............................................. Flagstaff, AZ 157 Fairfield Inn -- Downtown Scottsdale.............................. Scottsdale, AZ 218 Holiday Inn -- Santa Barbara...................................... Santa Barbara, CA 160 Holiday Inn Select -- Irvine/Orange County Airport (2)............ Irvine, CA 334 Holiday Inn Select -- Pleasanton(1)............................... Pleasanton, CA 244 Holiday Inn -- San Diego on the Bay............................... San Diego, CA 600 Holiday Inn -- San Jose North..................................... San Jose, CA 305 Holiday Inn -- San Francisco Financial District(2)................ San Francisco, CA 565 Holiday Inn -- San Francisco Fisherman's Wharf.................... San Francisco, CA 584 Holiday Inn Select -- San Francisco Union Square(1)............... San Francisco, CA 400 Holiday Inn Express -- Colorado Springs Central................... Colorado Springs, CO 207 Ramada Inn -- Colorado Springs North.............................. Colorado Springs, CO 220 Holiday Inn -- Hartford Downtown(1)............................... Hartford, CT 342 Holiday Inn Select -- Stamford.................................... Stamford, CT 383 Holiday Inn -- Washington D.C. Downtown........................... Washington, D.C. 208 Holiday Inn Select -- Cocoa Beach Oceanfront Resort............... Cocoa Beach, FL 500 Holiday Inn -- Nikki Bird......................................... Kissimmee, FL 529 Holiday Inn Select -- Miami International Airport(1).............. Miami, FL 304 Holiday Inn Select -- Orlando International Airport............... Orlando, FL 288 Holiday Inn -- Orlando International Drive Resort................. Orlando, FL 652 Holiday Inn -- Orlando North/Winter Park.......................... Orlando, FL 200 Holiday Inn -- Near Busch Gardens(R) Tampa........................ Tampa, FL 395 Courtyard by Marriott -- Downtown Atlanta......................... Atlanta, GA 211 Fairfield Inn -- Downtown Atlanta................................. Atlanta, GA 242 Holiday Inn -- Atlanta Airport North.............................. Atlanta, GA 493 Harvey Hotel -- Atlanta Powers Ferry(1)........................... Atlanta, GA 296 Crowne Plaza -- Atlanta Airport................................... Atlanta, GA 378 Holiday Inn Select -- Atlanta Perimeter Dunwoody.................. Atlanta, GA 250 Holiday Inn Express -- Atlanta I-20 East.......................... Atlanta, GA 167 Holiday Inn Express -- Atlanta Northeast.......................... Atlanta, GA 199 Holiday Inn -- Atlanta South/Jonesboro............................ Atlanta, GA 180 Holiday Inn -- Columbus Airport North............................. Columbus, GA 223 Hampton Inn -- Marietta........................................... Marietta, GA 140 Allerton Hotel -- Chicago(2)...................................... Chicago, IL 378 Chateau LeMoyne -- New Orleans Holiday Inn........................ New Orleans, LA 171 Holiday Inn -- New Orleans French Quarter......................... New Orleans, LA 276 Holiday Inn Select -- Boston Government Center(2)................. Boston, MA 303 Holiday Inn -- Kansas City Northeast.............................. Kansas City, MO 167 Holiday Inn -- Westport........................................... St. Louis, MO 167 Holiday Inn -- Jackson Southwest.................................. Jackson, MS 289 Crowne Plaza -- Downtown Jackson.................................. Jackson, MS 354 Hampton Inn -- Jackson North...................................... Jackson, MS 119 Harvey Hotel & Suites -- Jackson North............................ Jackson, MS 224 Whispering Woods Hotel and Conference Center...................... Olive Branch, MS 181 Holiday Inn -- Albuquerque Mountainview........................... Albuquerque, NM 360 Holiday Inn Select -- Philadelphia Center City(1)................. Philadelphia, PA 445 Holiday Inn -- Independence Mall.................................. Philadelphia, PA 364 The Mills House Hotel -- Charleston Holiday Inn................... Charleston, SC 214 Holiday Inn -- Columbia Airport................................... Columbia, SC 148 Holiday Inn Select -- Greenville (Roper)(1)....................... Greenville, SC 208 Holiday Inn -- Spartanburg West................................... Spartanburg, SC 224 Holiday Inn -- Chattanooga Southeast I-75......................... Chattanooga, TN 230 Holiday Inn -- Knoxville West..................................... Knoxville, TX 242 Holiday Inn Select -- Nashville Opryland/Airport(2)............... Nashville, TN 384 Holiday Inn -- Amarillo I-40...................................... Amarillo, TX 247 Holiday Inn -- Austin Town Lake................................... Austin, TX 320 Holiday Inn -- Beaumont Midtown I-10.............................. Beaumont, TX 190 Bristol House -- Dallas........................................... Dallas, TX 127 Fairfield Inn -- Dallas Regal Row................................. Dallas, TX 204 Harvey Hotel -- Dallas............................................ Dallas, TX 313 Harvey Hotel -- Addison........................................... Dallas, TX 429 Crowne Plaza -- Dallas (1)........................................ Dallas, TX 295 Hampton -- Downtown Dallas/West End............................... Dallas, TX 311 Harvey Hotel -- Dallas Brookhollow(1)............................. Dallas, TX 354 Courtyard by Marriott -- Houston Near The Galleria................ Houston, TX 209 Fairfield Inn -- Houston Near The Galleria........................ Houston, TX 107 Holiday Inn Select -- Houston Near Greenway Plaza................. Houston, TX 355 Holiday Inn -- Medical Center(1).................................. Houston, TX 297 Fairfield Inn -- Houston I-10 East................................ Houston, TX 160 Holiday Inn -- Houston Intercontinental Airport................... Houston, TX 413 Hampton Inn -- Houston I-10 East.................................. Houston, TX 90 Holiday Inn Select -- Houston I-10 West(2)........................ Houston, TX 349 Harvey Suites -- Houston Medical Center(3)........................ Houston, TX 285 Harvey Suites -- DFW Airport...................................... Irving, TX 164 Harvey Hotel -- DFW Airport....................................... Irving, TX 506 Harvey Hotel -- Plano............................................. Plano, TX 279 Holiday Inn -- Plano.............................................. Plano, TX 161 Holiday Inn -- San Antonio Downtown............................... San Antonio, TX 314 Holiday Inn Select -- San Antonio International Airport........... San Antonio, TX 397 Holiday Inn -- Waco I-35.......................................... Waco, TX 171 Holiday Inn -- Salt Lake City Airport............................. Salt Lake City, UT 190 Holiday Inn -- Cambridge.......................................... Cambridge, Ontario 139 Holiday Inn Select -- Toronto Airport............................. Toronto, Ontario 444 Holiday Inn -- Kitchener Waterloo................................. Kitchener, Ontario 182 Holiday Inn -- Peterborough -- Waterfront......................... Peterborough, Ontario 154 Holiday Inn -- Sarnia............................................. Sarnia, Ontario 151 Holiday Inn -- Toronto Yorkdale................................... Toronto, Ontario 370
3
NUMBER HOTEL NAME LOCATION OF ROOMS ---------- -------- -------- PENDING OMAHA ACQUISITION HOTELS Holiday Inn -- Omaha Central I-80................................. Omaha, NE 383 Hampton Inn -- Omaha Central...................................... Omaha, NE 132 Homewood Suites -- Omaha.......................................... Omaha, NE 116 Holiday Inn -- Omaha Northwest.................................... Omaha, NE 213 Hampton Inn -- Omaha Southwest.................................... Omaha, NE 131 Holiday Inn Express & Suites -- Omaha SW.......................... Omaha, NE 78 Hampton Inn -- Moline............................................. Moline, IL 138 Holiday Inn Express -- Moline Airport............................. Moline, IL 111 Holiday Inn -- Moline Airport..................................... Moline, IL 216 Holiday Inn -- Davenport.......................................... Davenport, Iowa 287 Hampton Inn -- Davenport.......................................... Davenport, Iowa 132 Holiday Inn -- Hays............................................... Hays, KS 190 Hampton Inn -- Hays............................................... Hays, KS 116 Holiday Inn -- Salina............................................. Salina, KS 192 Holiday Inn Express & Suites -- Salina I-70....................... Salina, KS 93 Holiday Inn -- Great Bend......................................... Great Bend, KS 175 Holiday Inn Express -- Colby...................................... Colby, KS 72 Holiday Inn -- Midland Country Villa.............................. Midland, TX 250 Holiday Inn Hotel & Suites -- Odessa Centre....................... Odessa, TX 245 Holiday Inn Express & Suites -- Odessa Parkway.................... Odessa, TX 186
- --------------- (1) These hotels are expected to be converted to Crowne Plaza hotels during 1998. (2) These hotels are expected to be converted to Crowne Plaza hotels during 1999. (3) This hotel is expected to be converted to a Holiday Inn and Suites during 1998. The consolidated financial statements of Bristol as of December 31, 1997 and 1996 and for the years ended December 31, 1997 and 1996, the consolidated statements of income, of changes in stockholders' equity and of cash flows for Bristol and for the eleven months ended December 31, 1995 and the combined statements of income and cash flows for Harvey Hotel Companies for the one month ended January 31, 1995, are included in this Form 8-K, commencing on page F-1. See "Index to Financial Statements" below. Certain matters discussed herein and the information incorporated by reference herein, may constitute forward-looking statements for purposes of the Securities Act of 1933, as amended, (the "Securities Act") and the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and as such may involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements of FelCor to be materially different from future results, performance or achievements expressed or implied by such forward-looking statements. Important factors that could cause the actual results, performance or achievements of FelCor to differ materially from FelCor's expectations are disclosed in other filings of FelCor under the Securities Act and the Exchange Act ("Cautionary Statements"). All forward-looking statements attributable to FelCor are expressly qualified in their entirety by the Cautionary Statements. ITEM 7. EXHIBITS (c) Exhibits. The following exhibits are furnished in accordance with Item 601 of Regulation S-K:
Exhibit No. Description 2.1 Agreement and Plan of Merger by and between FelCor Suite Hotels, Inc. and Bristol Hotel Company dated as of March 23, 1998 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Price Waterhouse LLP
4 INDEX TO FINANCIAL STATEMENTS Page ---- Consolidated Financial Statements of Bristol Hotel Company: Report of Arthur Andersen LLP F-1 Report of Price Waterhouse LLP F-2 Consolidated balance sheets F-3 Consolidated and combined statements of income F-4 Consolidated and combined statements of changes in stockholders' equity F-5 Consolidated and combined statements of cash flows F-6 Notes to consolidated and combined financial statements F-8 5 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders of Bristol Hotel Company We have audited the accompanying consolidated balance sheets of Bristol Hotel Company (a Delaware corporation) as of December 31, 1997 and 1996, and the related consolidated statements of income, changes in stockholders' equity and cash flows for the years then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Bristol Hotel Company as of December 31, 1997 and 1996, and the results of its operations and its cash flows for the years then ended in conformity with generally accepted accounting principles. ARTHUR ANDERSEN LLP Dallas, Texas February 6, 1998 (except with respect to the matter discussed in Note 20 as to which the date is March 25, 1998) F-1 6 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Stockholders of Bristol Hotel Company In our opinion, the accompanying consolidated statements of income, of changes in stockholders' equity and of cash flows for Bristol Hotel Company and its subsidiaries ("Company") and the combined statements of income and cash flows for Harvey Hotel Companies ("Predecessor") present fairly, in all material respects, the results of operations and cash flows of the Company and its Predecessor for the eleven months ended December 31, 1995 and for the one month ended January 31, 1995, in conformity with generally accepted accounting principles. These financial statements are the responsibility of the Company and its Predecessor's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with generally accepted auditing standards which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. We have not audited the consolidated financial statements of Bristol Hotel Company and its subsidiaries for any period subsequent to December 31, 1995. PRICE WATERHOUSE LLP Dallas, Texas February 23, 1996 F-2 7 BRISTOL HOTEL COMPANY CONSOLIDATED BALANCE SHEETS (Dollars in thousands)
December 31, December 31, 1997 1996 ------------ ------------ ASSETS Current assets Cash and cash equivalents .......................................... $ 86,167 $ 4,666 Trading securities ................................................. 103 116 Accounts receivable (net of allowance of $2,259 and $344) ......... 31,305 10,501 Inventory .......................................................... 8,286 3,320 Deposits ........................................................... 7,569 5,404 Other current assets ............................................... 1,626 950 ---------- ---------- Total current assets .................................... 135,056 24,957 ---------- ---------- Property and equipment (net of accumulated depreciation of $76,172 and $31,071) ........................................... 1,439,167 552,564 Other assets Restricted cash .................................................... 9,283 3,069 Investments in joint ventures, net ................................. 12,396 -- Goodwill (net of accumulated amortization of $891) ................. 52,773 -- Deferred charges and other noncurrent assets (net of accumulated amortization of $1,965 and $2,144) ................. 17,963 12,198 ---------- ---------- Total assets ............................................ $1,666,638 $ 592,788 ========== ========== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities Current portion of long-term debt .................................. $ 8,455 $ 15,769 Accounts payable and accrued expenses .............................. 27,366 10,626 Accrued construction costs ......................................... 1,330 4,797 Accrued property, sales and use taxes .............................. 15,911 7,346 Accrued insurance reserves ......................................... 9,530 6,920 Advance deposits ................................................... 1,156 278 ---------- ---------- Total current liabilities ............................... 63,748 45,736 ---------- ---------- Long-term debt, excluding current portion ............................. 708,864 216,925 Deferred income taxes ................................................. 242,530 75,619 Other liabilities ..................................................... 2,702 2,351 ---------- ---------- Total liabilities ....................................... 1,017,844 340,631 ---------- ---------- Common stock ($.01 par value; 150,000,000 shares authorized, 45,734,472 and 24,848,760 shares issued at December 31, 1997 and 1996, respectively, and 43,641,401 and 24,848,760 shares outstanding at December 31, 1997 and 1996, respectively) ......................... 436 166 Additional paid-in capital ............................................ 606,935 231,181 Cumulative translation adjustment ..................................... 286 -- Retained earnings ..................................................... 41,137 20,810 ---------- ---------- Total stockholders' equity .............................. 648,794 252,157 ---------- ---------- Total liabilities and stockholders' equity .............. $1,666,638 $ 592,788 ========== ==========
The accompanying notes are an integral part of these consolidated balance sheets. F-3 8 BRISTOL HOTEL COMPANY CONSOLIDATED STATEMENTS OF INCOME HARVEY HOTEL COMPANIES (PREDECESSOR) COMBINED STATEMENTS OF INCOME (Dollars in thousands, except per share amounts)
HARVEY HOTEL BRISTOL HOTEL COMPANY COMPANIES ---------------------------------------------------------- ----------------- Eleven Year Ended Year Ended Months Ended Month Ended December 31, 1997 December 31, 1996 December 31, 1995 January 31, 1995 ----------------- ----------------- ----------------- ----------------- REVENUE: Rooms ......................................... $ 377,380 $ 149,794 $ 115,771 $ 4,006 Food and beverage ............................. 92,596 44,344 36,070 1,505 Management fees ............................... 4,948 2,513 1,382 34 Other ......................................... 29,594 15,189 11,972 398 ----------------- ----------------- ----------------- ----------------- Total revenue ............................... 504,518 211,840 165,195 5,943 ----------------- ----------------- ----------------- ----------------- OPERATING COSTS AND EXPENSES: Departmental expenses: Rooms ....................................... 105,063 37,706 32,692 1,124 Food and beverage ........................... 69,766 31,282 27,118 1,006 Other ....................................... 9,326 4,528 4,258 49 Undistributed operating expenses: Administrative and general .................. 44,255 18,266 16,184 186 Marketing ................................... 34,439 15,555 12,070 393 Property operating costs .................... 44,303 17,499 16,313 360 Property taxes, rent and insurance .......... 35,330 10,903 8,425 269 Depreciation and amortization ............... 39,690 18,377 13,505 309 Corporate expense ........................... 24,450 10,958 8,035 315 ----------------- ----------------- ----------------- ----------------- Operating income ................................ 97,896 46,766 26,595 1,932 ----------------- ----------------- ----------------- ----------------- Other (income) expense: Interest expense .............................. 44,591 18,616 18,374 652 Equity in income of joint ventures ............ (1,916) -- -- -- Other ......................................... -- -- 257 -- ----------------- ----------------- ----------------- ----------------- Income before minority interest, income taxes, extra-ordinary items and pro forma income taxes ........................................ 55,221 28,150 7,964 1,280 Minority interest ............................... -- -- 173 -- ----------------- ----------------- ----------------- ----------------- Income before income taxes, extraordinary items and pro forma income taxes ................... 55,218 28,150 7,791 1,280 Income taxes .................................... 22,007 10,401 2,822 -- ----------------- ----------------- ----------------- ----------------- Income before extraordinary items and pro forma income taxes ................................. 33,214 17,749 4,969 1,280 Extraordinary loss on early extinguishment of debt, net of tax .......................... (12,741) -- (1,908) -- ----------------- ----------------- ----------------- ----------------- Net income before pro forma income taxes ........ $ 20,473 $ 17,749 $ 3,061 1,280 ================= ================= ================= Pro forma income taxes (Unaudited)............... 435 ----------------- Net income after pro forma income tax expense (Unaudited) ................................. $ 845 ================= Earnings per common and common equivalent share: Income before extraordinary item: Basic ....................................... $ 0.89 $ 0.71 $ 0.28 -- Diluted ..................................... $ 0.87 $ 0.70 $ 0.28 -- Net income: Basic ....................................... $ 0.55 $ 0.71 $ 0.17 -- Diluted ..................................... $ 0.53 $ 0.70 $ 0.17 -- Weighted average number of common and common equivalent shares outstanding: Basic ......................................... 37,359,364 24,848,760 17,857,936 -- Diluted ....................................... 38,332,302 25,526,413 17,908,955 --
The accompanying notes are an integral part of these consolidated and combined financial statements. F-4 9 BRISTOL HOTEL COMPANY CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (Dollars in thousands)
COMMON STOCK ADDITIONAL UNREALIZED CUMULATIVE RETAINED ---------------------- PAID-IN GAIN (LOSS) TRANSLATION EARNINGS SHARES AMOUNT CAPITAL ON SECURITIES ADJUSTMENT (DEFICIT) TOTAL ---------- ---------- ---------- ------------- ----------- ---------- ---------- Balance at January 31, 1995 ............ 9,856,178 $ 99 $ 123,104 $ -- $ -- $ -- $ 123,203 Unrealized gain on securities, net ... -- -- -- 262 -- -- 262 Issuance of common stock ............. 6,709,662 67 109,529 -- -- -- 109,596 Net of income ........................ -- -- -- -- -- 3,061 3,061 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Balance at December 31, 1995 ........... 16,565,840 166 232,633 262 -- 3,061 236,122 Reclass securities to trading ........ -- -- -- (262) -- -- (262) Employee stock options ............... -- -- 216 -- -- -- 216 Adjustment to offering costs for 1995 common stock issuance ......... -- -- (1,668) -- -- -- (1,668) Net income ........................... -- -- -- -- -- 17,749 17,749 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Balance at December 31, 1996 ........... 16,565,840 166 231,181 -- -- 20,810 252,157 Employee stock options ............... -- -- 296 -- -- -- 296 Exercise of employee stock options ... 6,619 -- 114 -- -- -- 114 Issuance of stock in Holiday Inn Acquisition .......................... 9,361,308 93 267,874 -- -- -- 267,967 Issuance of common stock, net of costs .............................. 3,162,500 31 107,470 -- -- -- 107,501 Stock split .......................... 14,545,134 146 -- -- -- (146) -- Foreign currency translation ......... -- -- -- -- 286 -- 286 Net income ........................... -- -- -- -- -- 20,473 20,473 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Balance at December 31, 1997 ........... 43,641,401 $ 436 $ 606,935 $ -- $ 286 $ 41,137 $ 648,794 ========== ========== ========== ========== ========== ========== ==========
The accompanying notes are an integral part of these consolidated and combined financial statements. F-5 10 BRISTOL HOTEL COMPANY CONSOLIDATED STATEMENTS OF CASH FLOWS HARVEY HOTEL COMPANIES (PREDECESSOR) COMBINED STATEMENTS OF CASH FLOWS (Dollars in thousands)
HARVEY HOTEL BRISTOL HOTEL COMPANY COMPANIES --------------------------------------------------------- ------------------ Eleven Year Ended Year Ended Months Ended Month Ended December 31, 1997 December 31, 1996 December 31, 1995 January 31, 1995 ----------------- ----------------- ----------------- ----------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net income ..................................... $ 20,473 $ 17,749 $ 3,061 $ 1,280 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization ................ 39,690 18,377 13,505 309 Amortization of deferred financing fees ...... 2,749 2,062 -- -- Other ........................................ -- -- 602 -- Equity in earnings of joint ventures ......... (1,399) -- -- -- Compensation expense recognized for employee stock options ..................... 410 216 -- -- Unrealized gain on marketable securities ..... -- (378) -- -- Non-cash portion of extraordinary item, net of tax ................................. 11,009 -- 1,908 -- Changes in assets and liabilities: Changes in working capital ................... 1,645 (684) (714) 641 Decrease (increase) in restricted cash ....... (6,214) (2,449) 2,860 (84) Distributions from joint ventures ............ 650 -- -- -- Increase (decrease) in other liabilities ..... 217 (460) (4,260) 421 Deferred tax provision ....................... 5,805 6,171 (326) -- ----------------- ----------------- ----------------- ----------------- Net cash provided by operating activities .............................. 75,035 40,604 16,636 2,567 ----------------- ----------------- ----------------- ----------------- CASH FLOWS FROM INVESTING ACTIVITIES: Improvements to property and equipment ......... (54,071) (93,936) (60,941) (721) Purchases of property and equipment, net of associated debt ....................... (86,977) (6,300) (20,000) -- Sales of property and equipment ................ -- -- 4,711 -- Holiday Inn Acquisition, net of costs .......... (400,159) -- -- -- Sales of marketable securities ................. -- 726 -- 1,928 ----------------- ----------------- ----------------- ----------------- Net cash provided by (used in) investing activities .................... (541,207) (99,510) (76,230) 1,207 ----------------- ----------------- ----------------- ----------------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from Refinancing ...................... 600,000 -- -- -- Proceeds from New Credit Facility .............. 560,000 -- -- -- Repayment of New Credit Facility ............... (560,000) -- -- -- Paydown of Senior Notes ........................ (40,000) -- -- -- Proceeds from Offering, net of costs ........... 107,852 -- -- -- Early extinguishment of long-term debt ......... (133,540) -- -- -- Distributions to predecessor equity holders .... -- -- (4,140) (8,009) Additions to notes receivable - partners ....... -- -- -- 488 Principal payments and extinguishment of long-term debt ............................... (7,058) (4,826) (156,612) (121) Proceeds from issuance of long-term debt ....... 43,410 66,976 123,387 -- Payment of offering costs ...................... -- (1,342) -- -- Proceeds from affiliate ........................ -- -- 19,900 -- Proceeds from initial public offering, net of offering costs ........................ -- -- 88,557 -- Dividend paid to minority partner .............. -- -- (335) -- Decrease in accounts receivable affiliate ...... -- -- 542 -- Decrease (increase) in deferred charges and other non-current assets .................. (22,991) (5,142) (9,212) 316 ----------------- ----------------- ----------------- ----------------- Net cash provided by (used in) financing activities .................... 547,673 55,666 62,087 (7,326) ----------------- ----------------- ----------------- -----------------
The accompanying notes are an integral part of these consolidated and combined financial statements. F-6 11 BRISTOL HOTEL COMPANY CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED) HARVEY HOTEL COMPANIES (PREDECESSOR) COMBINED STATEMENTS OF CASH FLOWS (CONTINUED) (Dollars in thousands)
HARVEY HOTEL BRISTOL HOTEL COMPANY COMPANIES ------------------------------------------------------- ----------------- Eleven Year Ended Year Ended Months Ended Month Ended December 31, 1997 December 31, 1996 December 31, 1995 January 31, 1995 ----------------- ----------------- ----------------- ----------------- Net increase (decrease) in cash and cash equivalents ................................. $ 81,501 $ (3,240) $ 2,493 $ (3,552) Cash and cash equivalents at beginning of period ... 4,666 7,906 5,413 4,118 ----------------- ----------------- ----------------- ----------------- Cash and cash equivalents at end of period ......... $ 86,167 $ 4,666 $ 7,906 $ 566 ================= ================= ================= ================= Supplemental cash flow information: Interest paid .................................... $ 39,706 $ 17,696 $ 17,111 $ 330 ================= ================= ================= ================= Income taxes paid ................................ $ 10,942 $ 3,543 $ 2,685 $ -- ================= ================= ================= ================= Non-cash investing and financing activities: Debt assumed to acquire property and equipment .................................. $ 21,813 $ -- $ 12,100 $ -- ================= ================= ================= ================= Sale of non-hotel properties for assumption of liabilities ................................. $ -- $ -- $ 4,723 $ -- ================= ================= ================= ================= Purchase of minority interest for common stock ... $ -- $ -- $ 1,110 $ -- ================= ================= ================= ================= Common stock issued in Holiday Inn Acquisition ..... $ 267,967 $ -- $ -- $ -- ================= ================= ================= =================
The accompanying notes are an integral part of these consolidated and combined financial statements. F-7 12 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS 1. ORGANIZATION Bristol Hotel Company (the "Company") is a Delaware corporation which was incorporated in November 1994 and began operations after the acquisitions of Harvey Hotel Company, Ltd. and its subsidiaries (together, "Harvey Hotel Companies" or "Predecessor") and United Inns, Inc. ("United Inns") (collectively, the "Combination"). The Company owns 86 hotels and manages 15 additional hotels, two of which are owned by joint ventures in which the Company owns a 50% interest. The properties, which contain approximately 28,800 rooms, are located in 22 states, the District of Columbia and Canada. The Company acquired the ownership and/or management of 60 of these properties on April 28, 1997 (the "Holiday Inn Acquisition"). The Combination and the Holiday Inn Acquisition are more fully described in Note 3. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES PRINCIPLES OF CONSOLIDATION The accompanying consolidated financial statements include the accounts of the Company and its subsidiaries. The combined financial statements of the Predecessor include the accounts of Harvey Hotel Company and related entities, all of which were under common control. The owners of these entities combined their interests for the purpose of forming a new entity which was acquired by the Company. The accounts of United Inns and its subsidiaries are included from February 1, 1995, the date of acquisition. The results of operations of the hotels acquired in the Holiday Inn Acquisition have been included in the Company's financial statements since April 28, 1997. All significant intercompany accounts and transactions have been eliminated. CASH AND CASH EQUIVALENTS Cash and cash equivalents include unrestricted cash in banks and cash on hand. Liquid investments purchased with an original maturity of three months or less are considered to be cash equivalents. TRADING SECURITIES Marketable securities consist primarily of equity securities and mutual fund shares. Equity securities have been classified as either: (i) available-for-sale, which are reported at fair value, with net unrealized gains and losses excluded from earnings and reported as a separate component of changes in equity; or (ii) trading securities, which are reported at fair value, with unrealized holding gains and losses for trading securities included in earnings. At December 31, 1997 and 1996, all marketable securities owned by the Company were classified as trading securities. ACCOUNTS RECEIVABLE Accounts receivable in the balance sheets are expected to be collected within one year and are net of estimated uncollectible amounts of $2,259,000 and $344,000, at December 31, 1997 and 1996, respectively. Valuation and qualifying accounts consist of allowance for doubtful accounts as follows (in thousands):
Write-Off of Balance at Charged to Amounts Balance at Beginning Costs and Previously End of of Period Expenses Reserved Period ---------- ---------- ------------ ---------- Company Year ended December 31, 1997 ................. $ 344 $ 2,306 $ (391) $ 2,259 Year ended December 31, 1996 ................. 620 251 (527) 344 Eleven months ended December 31, 1995 ........ 221 796 (397) 620
F-8 13 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) INVENTORY Inventory, consisting primarily of food and beverage products as well as consumable supplies, is carried at the lower of cost or market. Cost is determined on the first-in, first-out basis. DEFERRED CHARGES AND OTHER NONCURRENT ASSETS Deferred charges and other noncurrent assets consist primarily of financing costs which are amortized over the life of the related loan. The amounts reported in the balance sheets at December 31, 1997 and 1996, are net of accumulated amortization of $1,965,000 and $2,144,000, respectively. PROPERTY AND EQUIPMENT The Company recorded the Combination and the Holiday Inn Acquisition on the basis of an allocation of the purchase price based on the fair market value of the assets acquired at the date of acquisition. Subsequent additions and improvements are capitalized at their cost, including interest costs associated with the renovation of certain hotels. Interest capitalized during the years ended December 31, 1997 and 1996 was $1,628,000 and $2,100,000, respectively. The cost of normal repairs and maintenance that does not significantly extend the life of the property and equipment is expensed as incurred. Depreciation is computed on a straight-line method over the estimated useful lives of the assets, as follows:
BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES --------------------- ---------------------- Buildings 35-40 years 31-35 years Furniture, fixtures and equipment 3-15 years 7 years Automobiles and trucks 3 years 3 years Leasehold improvements Lease term or useful Lease term or useful life, whichever is less life, whichever is less
Depreciation and amortization expense recorded for the years ended December 31, 1997 and 1996, and the eleven months ended December 31, 1995 was $39.7 million, $18.4 million, and $13.5 million, respectively. The Company has adopted Statement of Financial Accounting Standards No. 121, "Accounting for Impairment of Long- Lived Assets and for Long-Lived Assets to be Disposed of" ("SFAS 121"). As of December 31, 1997 and 1996, no impairment losses have been incurred. The assets, which were classified as available for sale as of December 31, 1996, were reclassified to held and used in the second quarter of 1997. RESTRICTED CASH Restricted cash consists of (i) funds placed in reserve for the replacement of furniture, fixtures and equipment, and (ii) tax and insurance reserves. The Company is required to deposit monthly with various lenders amounts of three to four percent of hotel revenues for replacement reserves plus the tax and insurance escrow. As tax and insurance payments are made and improvements are completed, the Company is reimbursed from the reserves. F-9 14 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) ADOPTION OF RECENT ACCOUNTING PRONOUNCEMENTS In February 1997, Statement of Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128") was issued. Under SFAS 128, basic earnings per share ("EPS") is computed by dividing net earnings by the weighted average number of shares of common stock outstanding during the period. SFAS 128 replaces fully diluted EPS, which the Company was not previously required to report, with EPS, assuming dilution ("diluted EPS"). The Company calculates diluted EPS assuming all outstanding options to purchase common stock have been exercised at the beginning of the year (or the time of issuance, if later). The dilutive effect of the outstanding options is reflected by application of the treasury stock method, whereby the proceeds from the exercised options are assumed to be used to purchase common stock at the average market price during the period. The Company adopted SFAS 128 effective December 15, 1997. All prior period EPS data have been restated. The effect of this accounting change on previously reported EPS data is not significant. The following table reconciles the computation of basic EPS to diluted EPS:
PER SHARE NET EARNINGS SHARES AMOUNT ------------ ---------- --------- ($ in thousands) For the year ended December 31, 1997: Income before extraordinary item per share ............................... $ 33,214 37,359,364 $ 0.89 Effect of options .......................... -- 972,938 ---------- ---------- Income before extraordinary item per share, assuming dilution ................ $ 33,214 38,332,302 $ 0.87 ========== ========== Net income per share ....................... $ 20,473 37,359,364 $ 0.55 Effect of options .......................... -- 972,938 ---------- ---------- Net income per share, assuming dilution .... $ 20,473 38,332,302 $ 0.53 ========== ========== For the year ended December 31, 1996: Income before extraordinary item per share ............................... $ 17,749 24,848,760 $ 0.71 Effect of options .......................... -- 677,653 ---------- ---------- Income before extraordinary item per share, assuming dilution ................ $ 17,749 25,526,413 $ 0.70 ========== ========== Net income per share ....................... $ 17,749 24,848,760 $ 0.71 Effect of options .......................... -- 677,653 ---------- ---------- Net income per share, assuming dilution .... $ 17,749 25,526,413 $ 0.70 ========== ========== For the 11 months ended December 31, 1995: Income before extraordinary item per share ............................... $ 4,969 17,857,936 $ 0.28 Effect of options .......................... -- 51,019 ---------- ---------- Income before extraordinary item per share, assuming dilution ................ $ 4,969 17,908,955 $ 0.28 ========== ========== Net income per share ....................... $ 3,061 17,857,936 $ 0.17 Effect of options .......................... -- 51,019 ---------- ---------- Net income per share, assuming dilution .... $ 3,061 17,908,955 $ 0.17 ========== ==========
Earnings per share have been retroactively adjusted for the effect of stock splits. F-10 15 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) FOREIGN CURRENCY TRANSACTIONS As part of the Holiday Inn Acquisition, the Company acquired six hotels in Canada. Results of operations for those hotels are maintained in Canadian dollars and translated using average exchange rates during the period. Currency transaction losses are included in net income and were $303,000 for the year ended December 31, 1997. Assets and liabilities are translated to U.S. dollars using the exchange rate in effect at the balance sheet date. Resulting translation adjustments are reflected in stockholders' equity as a cumulative foreign currency translation adjustment. Cumulative currency translation gains included in stockholders' equity at December 31, 1997 were $286,000. INCOME TAXES Company The Company accounts for income taxes under the Statement of Financial Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS 109"). SFAS 109 requires the recognition of deferred tax liabilities and assets for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred tax liabilities and assets are determined based on the difference between the financial statement and tax basis of assets and liabilities using currently enacted tax rates in effect for the years in which the differences are expected to reverse. Predecessor Harvey Hotel Company and related entities are partnership or S-Corporation entities, and income or loss for federal income tax purposes is allocated to the individual partners or shareholders. Accordingly, no recognition has been given to income taxes in the combined financial statements. However, pro forma income tax expense, at an effective rate of 34%, has been included in the combined statements of income in order to reflect the impact on the income of Harvey Hotel Companies. Harvey Hotel Corporation accounted for the tax effect of net income or loss in accordance with SFAS 109. However, because of the changes in ownership (see Note 1), realization of the benefit of the accumulated losses is uncertain and, therefore, has not been recorded in the combined financial statements. EARNINGS PER SHARE Earnings per share is determined by dividing net income by the weighted average number of common and common equivalent shares outstanding during the year. The 1995 weighted average shares outstanding has been calculated using the treasury stock method and as if Holdings' shares of 1,768,000 (see Note 3) had been outstanding since February 1, 1995. The 1997 and 1996 weighted average shares is calculated using the treasury stock method, giving effect to the common equivalent shares outstanding as of December 31, 1997 and 1996. The common equivalent shares include officer and director stock options which have been deemed exercised at the issue date using the treasury method for the purposes of computing earnings per share. The Company has no other potentially dilutive securities. All weighted average share and per share data presented are calculated in accordance with SFAS 128, which calls for both basic and diluted weighted average share presentation. All prior period amounts have been restated in accordance with SFAS 128. The Company believes that there has been no impact on its financial statements from the implementation of SFAS 128, as the weighted average shares previously used in calculating earnings per share are the same as the diluted weighted average shares calculated under SFAS 128. F-11 16 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) EARNINGS PER SHARE (continued) On June 23, 1997, the Company's Board of Directors declared a three-for-two stock split, effective in the form of a stock dividend for shareholders of record June 30, 1997, which was distributed July 15, 1997 (the "Stock Split"). All per share data and the average common and common equivalent shares issued and outstanding have been adjusted to reflect the Stock Split for all periods presented. USE OF ESTIMATES The Company has made a number of estimates and assumptions relating to the reporting of assets and liabilities, the disclosure of contingent assets and liabilities and the reported amounts of revenues and expenses to prepare these financial statements in conformity with generally accepted accounting principles. Actual results could differ from those estimates. RECLASSIFICATIONS Certain financial statement items from the prior years for the Company and the Predecessor have been reclassified to conform with the current presentation. 3. ACQUISITIONS UNITED INNS ACQUISITION On January 27, 1995, United/Harvey Holdings L.P. ("Holdings") acquired the common stock of United Inns for an aggregate purchase price of $67 million plus the assumption of United Inns' liabilities. The acquisition was accounted for as a purchase and the purchase price was allocated to the net assets acquired. Under the acquisition agreement, Holdings, Harvey Hotel Companies, H. K. Huie, Jr., the Harvey Management Equity Holders and the other parties thereto, the following occurred: (1) Holdings contributed to the Company all of the outstanding capital stock of United Inns, approximately $15.1 million in cash and certain cash advances previously made for the benefit of Harvey Hotel Companies in exchange for an aggregate of 68.1% of the Company's Common Stock; (2) the Harvey Management Equity Holders collectively contributed to the Company 46.4% of the outstanding partnership interests in Harvey Hotel Companies in exchange for an aggregate of 20.6% of the Company's Common Stock; and (3) Mr. Huie contributed 25.3% of his 50.6% outstanding partnership interest in Harvey Hotel Companies for 11.3% of the Company's Common Stock. In addition, Mr. Huie and two of his daughters sold to the Company approximately 27.3% of the outstanding partnership interests in Harvey Hotel Companies for approximately $15.1 million in cash plus interest. As a result of these transactions, Holdings, Mr. Huie and the Harvey Management Equity Holders became the stockholders of the Company, the Company became the sole stockholder of United Inns, the Company became the indirect owner of 99% of the outstanding partnership interests in Harvey Hotel Companies, and in connection therewith, a wholly owned subsidiary of the Company became the managing general partner of Harvey Hotel Companies. Subsequently, one of Mr. Huie's daughters, who did not participate in the Combination, sold her 1.0% limited partnership interest in Harvey Hotel Companies (See Note 15). The aggregate purchase price for Harvey Hotel Companies of $55 million in stock and cash including the interests contributed by the Harvey Management Equity Holders and Mr. Huie has been allocated, along with acquisition costs of $1 million, to the net assets acquired. The net assets contributed were valued at their estimated fair value on the basis of an independent valuation performed by Holdings and as a result of the cash paid for the 27.3% owned by Mr. Huie and his two daughters. The excess of the purchase price over the net assets acquired of $71.5 million was principally allocated to land and buildings in accordance with the purchase method of accounting. F-12 17 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 3. ACQUISITIONS (CONTINUED) UNITED INNS ACQUISITION (continued) The consolidated statements of income for the Company includes the results of operations for United Inns from February 1, 1995. The following unaudited pro forma summary presents the combined results of Harvey Hotel Companies as if United Inns had been acquired at the beginning of 1995. The pro forma results have been prepared for comparative purposes only and do not purport to be indicative of the results of operations that would actually have resulted had the acquisition been in effect on the date indicated (in thousands):
(Unaudited) Month Ended January 31, 1995 ---------------- Total revenues ................................. $13,142 Net income after extraordinary gain and pro forma income tax expense ................ $ 1,111
HOLIDAY INN ACQUISITION On April 28, 1997, the Company acquired the ownership of 45 full-service Holiday Inns and the management of an additional 15 Holiday Inn properties, three of which were owned by joint ventures in which the Company acquired a 50% interest (the owned hotels, management contracts and joint venture interests, collectively referred to as the "Holiday Inn Assets"). As consideration for the Holiday Inn Acquisition, the Company paid $398 million in cash and issued 9,381,308 shares (pre-Stock Split) of its common stock. The acquisition has been accounted for as a purchase and the results of operations of the Holiday Inn Assets have been included in the consolidated financial statements since April 28, 1997. The purchase price, including liabilities assumed in the acquisition (principally deferred tax liabilities) was allocated to the assets acquired, based upon their fair market values. The excess of the purchase price over the estimated fair market value of the net assets acquired was recorded as goodwill and is being amortized over 40 years. The following unaudited pro forma summary presents the results of the Company as if the Holiday Inn Acquisition and related refinancing pursuant to the New Credit Facility (see Note 6) had occurred at the beginning of 1996. The pro forma results have been prepared for comparative purposes only and are not indicative of the results of operations that would have occurred had the Holiday Inn Acquisition occurred on the date indicated.
(Unaudited) 1997 1996 -------- -------- (in thousands) Total revenues ................................. $626,047 $571,876 Income before extraordinary item ............... $ 41,165 $ 31,981 Net income ..................................... $ 29,762 $ 31,981
F-13 18 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 3. ACQUISITIONS (CONTINUED) OTHER ACQUISITIONS In addition to the Holiday Inn Acquisition, the Company completed the following single-asset acquisitions in 1997 and 1996:
Mortgage Date Number Purchase Debt Acquired Location of Rooms Price Assumed -------- -------- -------- -------- -------- December 1997 Milpitas (San Jose), CA 305 $ 4.25 million(1) $ -- December 1997 Philadelphia, PA 364 $25.50 million $13.4 million October 1997 St. Louis, MO 318 $18.00 million $ 8.4 million January 1997 Chicago, IL 378 $35.00 million $ -- May 1996 Plano, TX 161 $ 6.30 million $ --
(1) The Holiday Inn - Milpitas was previously owned by a joint venture in which the Company owned a 50% interest. The Company purchased the remaining 50% interest in the venture for $4.25 million and, concurrently with the acquisition, repaid all outstanding debt associated with the property of $25.7 million. 4. PROPERTY AND EQUIPMENT Property and equipment consists of the following (in thousands):
December 31, 1997 December 31, 1996 ----------------- ----------------- Land ....................................... $ 169,611 $ 50,528 Buildings .................................. 1,152,383 406,682 Furniture, fixtures and equipment .......... 162,045 74,827 ----------- ----------- 1,484,039 532,037 Less accumulated depreciation .......... (76,172) (26,091) ----------- ----------- 1,407,867 505,946 Assets held for sale (net of accumulated depreciation of $0 and $4,980) ....... -- 38,279 Construction in progress ................... 31,300 8,339 ----------- ----------- $ 1,439,167 $ 552,564 =========== ===========
The Company's properties are predominantly full-service hotels that operate in the upscale and mid-price with food and beverage segments of the lodging industry under franchise agreements primarily with Holiday Inn. The Company seeks to maintain a geographically diverse portfolio of hotels to offset the effects of regional economic cycles. The Company operates properties in 22 states, the District of Columbia and Canada, including 13 hotels in California, 11 in Georgia, 27 in Texas, seven in Florida, and six in Canada. During fiscal year 1996, the Company classified certain limited-service hotels as assets held for sale pursuant to the provisions of SFAS 121. During 1997, the Company reclassified these assets as held and used, therefore recording depreciation expense on these assets. The results of operations for these limited-service properties included in the income statement for the years ended December 31, 1997, 1996 and 1995 were (in thousands):
Year Ended December 31, ---------------------------- 1997 1996 1995 -------- -------- -------- Total revenues ......................... $ 13,464 $ 16,398 $ 14,552 Operating income ....................... 2,186 5,580 4,020
F-14 19 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 5. MARKETABLE SECURITIES In 1995, the Company classified certain equity securities as Available-for-Sale Securities (per Statement of Financial Accounting Standard No. 115, "Accounting for Certain Investments in Debt and Equity Securities"). Unrealized gains were reported as a separate component of stockholders' equity. In May 1996, management resolved to sell the equity securities, and accordingly, the securities were reclassified as Trading Securities and an unrealized gain of approximately $450,000 was recorded in earnings in 1996. These securities were sold in August 1996. 6. LONG-TERM DEBT Long-term debt consists of the following (in thousands):
December 31, 1997 December 31, 1996 ----------------- ----------------- Senior Notes 11.22% due December 18, 2000 (net of discount) ........ $ 29,469 $ 68,340 Mortgage loans Fixed rate: 7.66% due October 27, 2009 ......................... 455,000 -- 7.458% due November 11, 2007 ....................... 144,834 -- 8% due December 31, 2002 ........................... 40,263 42,126 8.55% due January 11, 2016 ......................... 14,324 14,626 9% due October 1, 2005 ............................. 13,401 -- 9.5% due August 1, 2005 ............................ 8,366 -- Non-interest bearing due December 31, 2002 ......... 7,950 9,086 7.25% due September 30, 1997 ....................... -- 8,110 Variable rate: 7.75% Senior Term Facility due December 18, 1998 ... -- 66,976 10.26% due January 31, 2000 ........................ -- 9,300 10.25% due December 31, 1999 ....................... -- 6,899 8.5% due September 30, 1997 ........................ -- 1,500 Other long-term debt ...................................... 345 4,329 Capital leases ............................................ 3,367 1,402 ----------------- ----------------- 717,319 232,694 Less current portion .................................. (8,455) (15,769) ----------------- ----------------- Long-term debt, excluding current portion ... $ 708,864 $ 216,925 ================= =================
The mortgages are amortized using varying methods as provided in the individual debt agreements. Substantially all of the Company's properties and equipment are pledged as collateral on mortgage obligations. The Company obtained the financing for the Holiday Inn Acquisition under a new senior term facility which provided for up to $560 million aggregate amount of term loan borrowings (the "New Credit Facility"). The New Credit Facility was utilized to repay existing debt of approximately $134 million, to fund the cash portion of the Holiday Inn Acquisition and related closing costs. The Company repaid $108 million of borrowings from the New Credit Facility in May 1997 with proceeds from the Offering (as defined in Note 10). The treatment of the extraordinary costs related to the repayment of debt is more fully described in Note 8. On October 28, 1997, the Company completed the refinancing of the existing $560 million New Credit Facility. The new financing (the "Refinancing") has two tranches: (a) $145 million at a fixed interest rate of 7.458%, a term of 10 years, and secured by 15 hotel properties; and, (b) $455 million at a fixed interest rate of 7.66%, a term of 12 years, and secured by 62 hotel properties. F-15 20 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 6. LONG-TERM DEBT (CONTINUED) The Company prepaid $40 million of its 11.22% Senior Secured Notes (the "Senior Notes") in December 1997. In conjunction with the prepayment, the Company amended the Senior Note indenture to allow for a more flexible prepayment schedule. In connection with the Refinancing, Bristol Hotel Operating Company, a wholly owned subsidiary of the Company, became a joint and several guarantor of the Senior Notes along with Bristol Hotel Asset Company. As discussed in Note 15, portions of the mortgage loans associated with three of the Company's properties have been allocated to a third party. The aggregate maturities of long-term debt for the five years subsequent to December 31, 1997, are as follows (in thousands):
Year ended December 31, 1998 ........................ $ 8,455 1999 ........................ 8,387 2000 ........................ 38,421 2001 ........................ 9,146 2002 ........................ 34,230 Thereafter ............. 618,680 -------- $717,319 ========
7. INCOME TAXES Components of income tax expense from continuing operations for the years ended December 31, 1997 and 1996 and the eleven months ended December 31, 1995, consist of the following (in thousands):
1997 1996 1995 -------- -------- -------- Federal: Current......... $ 12,683 $ 4,486 $ 3,245 Deferred........ 4,637 5,301 (579) State: Current......... 1,837 282 190 Deferred........ 509 332 (34) Canada: Current......... 1,618 -- -- Deferred........ 723 -- -- -------- -------- -------- $ 22,007 $ 10,401 $ 2,822 ======== ======== ========
Components of income tax benefit from extraordinary items for the years ended December 31, 1997 and 1996, consist of the following (in thousands):
1997 1996 -------- -------- Federal: Current ............................ $ 7,358 $ -- Deferred ........................... -- -- State: Current ............................ 1,098 -- Deferred ........................... -- -- -------- -------- $ 8,456 $ -- ======== ========
F-16 21 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 7. INCOME TAXES (CONTINUED) The Company estimates that its effective tax rate for 1997 approximated 39.9%. The actual income tax expense for the year ended December 31, 1997, is computed by applying the U. S. federal statutory income tax rate, adjusted as follows: Income tax expense at the U. S. federal statutory rate ................... 35.0% State income taxes, net of federal benefit ............................... 3.6% Permanent differences and effect of higher Canadian tax rates ............ 1.3% ---- 39.9% ====
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and liabilities at December 31, 1997 and December 31, 1996, are as follows (in thousands):
1997 1996 -------- -------- Purchase accounting adjustments to land and building ............................... $248,866 $ 85,134 Other .............................................. 994 -- -------- -------- Gross deferred tax liabilities ................. 249,860 85,134 -------- -------- Tax credit and NOL carryforwards ................... 4,011 5,502 Accrued reserves ................................... 1,823 2,192 Other .............................................. 1,496 1,821 -------- -------- Gross deferred tax asset ........................... 7,330 9,515 Valuation allowance ................................ -- -- -------- -------- Deferred tax asset ................................. 7,330 9,515 -------- -------- Net deferred tax liability ..................... $242,530 $ 75,619 ======== ========
The gross deferred tax liabilities relate principally to the temporary differences caused by the purchase accounting adjustments recorded as a result of the Combination and the Holiday Inn Acquisition. For financial reporting purposes, the transactions were recorded under the principles of purchase accounting and, accordingly, the basis of the assets have been adjusted to fair market value. For tax reporting purposes, the transactions resulted in the bases of the assets and liabilities being carried forward at their adjusted bases with some adjustment for certain gains recognized on the acquisition. This differing treatment has created book bases in excess of tax bases and, accordingly, the related deferred tax liabilities associated with these differences have been recorded. As the Company depreciates and amortizes the bases of its assets for book and tax purposes, it will record an expense for depreciation and amortization in excess of that claimed for tax purposes. This reversal of the temporary differences established through purchase accounting will result in the Company recording a credit to deferred tax expense for the tax effect of these differences. The remaining deferred tax assets are expected to be realized in future periods through use of existing tax NOL and tax credit carryforwards. F-17 22 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 7. INCOME TAXES (CONTINUED) For federal tax reporting purposes, net operating losses of $8,988,000 and tax credits of $657,000 generated by United Inns and Harvey Hotel Corporation in prior years are available to be carried forward to periods expiring as follows (in thousands):
Year of Expiration Federal NOL Tax Credits ------------------ ----------- ----------- 2001 ................... $ -- $ 142 2002 ................... -- 154 2003 ................... -- 158 2004 ................... -- 103 2005 ................... 3,924 58 2006 to 2010 ............... 5,064 42 ----------- ----------- $ 8,988 $ 657 =========== ===========
The losses and credits are subject to an annual loss limitation equivalent of approximately $4.8 million due to the changes in ownership of United Inns and Harvey Hotel Corporation which occurred in 1995. These carryforwards are further limited as they were incurred prior to the ownership of United Inns and Harvey Hotel Corporation by the Company. Accordingly, these carryforwards are available only to offset income and taxes associated with the operations of the hotels that generated them. 8. EXTRAORDINARY ITEMS On April 28, 1997, the Company recognized an extraordinary loss of $2.2 million ($1.3 million, net of tax) related to the early extinguishment of debt with proceeds from the New Credit Facility. The Company incurred $479,000 of prepayment penalties and wrote off $1.7 million in deferred financing costs. The Company refinanced the New Credit Facility in October 1997 and recognized an extraordinary loss of $14.0 million ($8.4 million, net of tax) related to the early extinguishment of the New Credit Facility. The loss on extinguishment reflects the write-off of deferred financing fees related to the New Credit Facility. The Company prepaid a portion of its Senior Notes on December 16, 1997. The Company prepaid $40 million of principal, and recognized an extraordinary loss of $5.0 million ($3.0 million, net of tax). The extraordinary loss reflects the $2.4 million in prepayment penalties paid by the Company for the Senior Notes, as well as the write-off of approximately $2.6 million of deferred financing fees and discount on the Senior Notes. 9. ACCOUNTS PAYABLE AND ACCRUED EXPENSES Accounts payable and accrued expenses consist of the following (in thousands):
DECEMBER 31, 1997 DECEMBER 31, 1996 ----------------- ----------------- Accounts payable ..................................... $ 2,921 $ 1,689 Accrued payroll, payroll taxes and benefits .......... 15,480 5,208 Accrued interest ..................................... 3,738 993 Accrued hotel operating expenses ..................... 1,405 858 Accrued Holiday Inn Acquisition costs/conversion costs ........................... 1,104 -- Other ................................................ 2,718 1,878 ----------------- ----------------- $ 27,366 $ 10,626 ================= =================
F-18 23 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 10. STOCKHOLDERS' EQUITY On April 28, 1997, the Company's shareholders voted to amend the Company's certificate of incorporation to increase the number of authorized shares of common stock from 75,000,000 to 150,000,000. As part of the consideration for the Holiday Inn Acquisition, the Company issued 9,381,308 shares (pre-split) of its common stock. On May 16, 1997, the Company issued 2,750,000 (pre-Stock Split) shares of its common stock at a price of $36 per share (the "Offering"). The Company issued an additional 412,500 shares (pre-Stock Split) on May 28, 1997, pursuant to an over-allotment agreement with the underwriters of the Offering. Proceeds from the issuances were approximately $108 million (net of costs of $6.3 million). NON-EMPLOYEE DIRECTOR OPTIONS The Company instituted a Stock Option Plan for Non-Employee Directors (the "Director Plan") in 1995. Only members of the board who are not employees of the Company or an employee of a 10% beneficial owner or an affiliate thereof will be eligible for option grants thereunder (an "Eligible Director"). An Eligible Director receives an option to purchase 7,500 shares of Common Stock at an exercise price equal to the market value on the date the individual becomes a director, and those options shall become exercisable 34% at the first next annual shareholders' meeting at which the individual is a director, and 33% at each of the next two consecutive years during which the individual is a director. In addition, the Eligible Director will receive options to purchase 7,500 shares at each annual meeting during which the individual is a director, exercisable on the date of the next annual shareholders' meeting at which the individual is a director. As of December 31, 1997, a total of 52,500 options had been granted to the three Eligible Directors on the board, 25,050 of which are currently exercisable. EMPLOYEE OPTIONS Under the Amended and Restated 1995 Equity Incentive Plan, the Company may award to participating officers and employees, options to purchase the Company's stock. Employee stock options may be granted to officers and employees with an exercise price generally not less than the fair market value of the common stock at the date of grant. Options expire at 10 years from date of grant. Options issued prior to December 31, 1995, have cliff vesting from 1998 - 2000 and options issued on or after January 1, 1996, vest ratably over a four- or five-year period from the date of the grant. There were 2,069,441 employee options outstanding at December 31, 1997, of which 82,800 were exercisable. SFAS 123 DISCLOSURE In October 1995, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123"), effective for fiscal years beginning after December 15, 1995. SFAS 123 encourages, but does not require, companies to record compensation cost for stock-based employee compensation plans at fair value. The Company has chosen to continue to account for stock-based compensation using the intrinsic value method prescribed in Accounting Pronouncement Bulletin Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25"). Accordingly, compensation cost for stock options is measured as the excess, if any, of the market price of the Company's stock at the date of the grant over the amount the employee must pay to acquire the stock. The Company, therefore, does not believe that the implementation of SFAS 123 has had a material adverse impact on the Company's financial position or results of operations. F-19 24 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 10. STOCKHOLDERS' EQUITY (CONTINUED) SFAS 123 DISCLOSURE (continued) However, had compensation cost for these plans been determined consistent with the method of SFAS No. 123, the Company's net income and earnings per share would have been reduced to the following pro forma amounts (dollars in thousands):
YEAR ENDED YEAR ENDED ELEVEN MONTHS ENDED DECEMBER 31, 1997 DECEMBER 31, 1996 DECEMBER 31, 1995 ----------------- ----------------- ------------------- Net Income As Reported $ 20,473 $ 17,749 $ 3,061 Pro Forma 19,060 16,865 2,621 Basic EPS As Reported 0.55 0.71 0.17 Pro Forma 0.51 0.68 0.15 Diluted EPS As Reported 0.53 0.70 0.17 Pro Forma 0.50 0.67 0.15
A summary of the status of the Company's stock option plan at December 31, 1997, 1996 and 1995, (adjusted for Stock Split) and changes during the years then ended is presented in the table and narrative below:
1997 1996 1995 --------------------------- --------------------------- ---------------------------- WEIGHTED AVERAGE WEIGHTED AVERAGE WEIGHTED AVERAGE SHARES EXERCISE PRICE SHARES EXERCISE PRICE SHARES EXERCISE PRICE ---------- ---------------- ---------- ---------------- ---------- ---------------- Outstanding at January 1 ... 1,613,363 $ 10.57 1,190,766 $ 8.41 -- $ -- Options granted ............ 520,400 25.06 435,000 16.39 1,190,766 8.41 Options exercised .......... (6,929) 16.47 -- -- -- Options expired ............ (4,893) 9.78 (12,403) 8.33 -- -- ---------- ---------- ---------- ---------- ---------- ---------- Options outstanding at December 31 ............. 2,121,941 $ 14.10 1,613,363 $ 10.57 1,190,766 $ 8.41 ========== ========== ========== ========== ========== ========== Options exercisable at December 31 ............. 107,850 $ 16.60 5,100 $ 15.00 -- -- ========== ========== ========== ========== ========== ========== Weighted average fair value of options .............. $ 7.82 $ 5.76 $ 4.11 ========== ========== ==========
The 2,121,941 options outstanding at December 31, 1997, have exercise prices between $8.33 and $28.25 with a weighted average exercise price of $14.10 and a weighted average remaining contractual life of 8.1 years. At December 31, 1997, 107,850 of these options (with a weighted average exercise price of $16.60) are exercisable. The fair value of each option grant is estimated on the date of grant using the Black-Scholes option pricing model with the following weighted-average assumptions used for grants in 1997, 1996 and 1995; risk-free interest rates from 5.30% to 7.04%; no expected dividend yields; expected lives of one to seven years; expected volatility of 33.37%. F-20 25 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 11. OPERATING LEASES The Company leases certain land, office space and equipment under noncancellable operating lease commitments. Minimum rentals due under these agreements for the next five years and thereafter are as follows (in thousands):
Year Ended December 31, 1998 ..................... $ 11,933 1999 ..................... 11,976 2000 ..................... 12,046 2001 ..................... 12,029 2002 ..................... 11,887 Thereafter .................. 216,075 --------- $ 275,946 =========
Leases include long-term ground leases for certain hotels, generally with renewal options. Certain leases contain provisions for the payment of contingent rentals based on a percentage of sales. The Company leases certain hotel space to third-party vendors. Future minimum rentals to be received under noncancellable operating leases that have initial or remaining lease terms in excess of one year are as follows (in thousands):
Year Ended December 31, 1998 ..................... $ 3,582 1999 ..................... 3,562 2000 ..................... 3,289 2001 ..................... 3,116 2002 ..................... 2,720 Thereafter .................. 13,868 ---------- $ 30,137 ==========
12. MANAGEMENT CONTRACTS The Company acquired the management of 15 hotels in the Holiday Inn Acquisition, three of which were owned by joint ventures in which the Company owned a 50% interest. The purchase price allocated to these contracts at April 28, 1997 was $4.4 million and is being amortized on a straight-line basis over the remaining lives of the agreements, which range from one to 11 years. The amortization of the purchase price recorded in 1997 was $878,000. Management fee income was $4.9 million in 1997, $2.5 million in 1996, and $1.4 million in 1995. These management contracts may contain provisions which allow the third- party owner to terminate the contract for such reasons as sale of the property, for cause or without cause. Therefore, the Company cannot guarantee that it will continue to manage these properties to the contract expiration date. The Company acquired the remaining 50% interest in one of the joint ventures in which it was a partner in December 1997. (See Note 13.) 13. INVESTMENTS IN JOINT VENTURES The Company acquired 50% interests in three joint ventures in the Holiday Inn Acquisition. The purchase price allocated to these joint ventures was approximately $12 million and is being amortized on a straight-line basis over the estimated life of the assets acquired. Amortization expense of $308,000 was recorded in 1997. F-21 26 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 13. INVESTMENTS IN JOINT VENTURES (CONTINUED) On December 11, 1997, the Company acquired the remaining 50% interest in the Milpitas Joint Venture for $4.25 million. Concurrently with the acquisition, the Company paid off all outstanding debt related to the property of $25.7 million. None of the original $12 million purchase price allocated to the joint ventures in the Holiday Inn Acquisition was attributed to the Milpitas Joint Venture. 14. BENEFITS Health (including fully insured term life and accidental death and dismemberment), dental and disability coverage is provided to the Company's employees through the Welfare Benefit Trust (the "Trust"). The Company maintains varying levels of stop-loss and umbrella insurance policies to limit the Company's per occurrence and aggregate liability in any given year. Actual claims and premiums on stop-loss insurance, medical and disability policies are paid from the Trust. The Trust is funded through a combination of employer and employee contributions. The Trust also pays work-related injury claims which are funded by the employer for its employees in Texas. Since April 1, 1995, all employees have been eligible for participation in the benefits provided through the Trust. The Company provided $6.1 million and $2.9 million related to these benefits for the years ended December 31, 1997 and 1996, respectively. The Company offers a Profit Sharing Plan and Trust ("401(k) Plan") to certain employees. The 401(k) Plan is designed to be a qualified trust under Section 401(a) of the Internal Revenue Code. Under the 401(k) Plan, eligible employees are allowed to defer up to 16% of their income on a pretax basis through contributions to the Plan; however, only the first 6% of pretax income is subject to matching by the Company. The Company may elect to make matching contributions of up to 50% of the employees' matchable contributions subject to certain performance measures of the Company. The Company provided for matching contributions for the years ended December 31, 1997 and 1996 totaling $1.5 million and $135,000, respectively. 15. COMMITMENTS AND CONTINGENCIES Substantially all of the Company's hotel properties are (or will be in the next year) operated pursuant to franchise or license agreements ("Franchise Agreements"), primarily with Holiday Inn Franchising, Inc. or its affiliates. The Company also operates hotels under franchise agreements with Marriott International, Inc., Hampton Inn (a division of Promus Hotels, Inc.), Ramada Franchise Systems, Inc. and Days Inn Inc. of America Franchising Inc. The Franchise Agreements generally require the payment of a monthly royalty fee based on gross room revenue and various other fees associated with certain marketing or advertising and centralized reservation services, also generally based on gross room revenues. The Franchise Agreements have various durations through the year 2017, and generally may not be terminated without the payment of substantial fees. Franchise fees of $19.5 million and $4.1 million were paid during the years ending December 31, 1997 and 1996, respectively. The Franchise Agreements generally contain specific standards for, and restrictions and limitations on, the operation and maintenance of the hotels which are established by the franchisors to maintain uniformity in the system created by each such franchisor. Such standards generally regulate the appearance of the hotel, quality and type of goods and services offered, signage and protection of trademarks. Compliance with such standards may from time to time require significant expenditures for capital improvements. The Company is currently involved in certain guest and customer claims, employee wage claims and other disputes arising in the ordinary course of business. In the opinion of management, the pending litigation will not have a materially adverse effect on the Company's financial position or results of operations. In connection with the administration of the Dallas County Probate Court of the estate of the deceased wife of H.K. Huie, Jr., one of Mr. Huie's daughters (the "Plaintiff"), alleged self dealing and breach of duty and F-22 27 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 15. COMMITMENTS AND CONTINGENCIES (CONTINUED) trust by Mr. Huie as executor and testamentary trustee under his wife's will and in connection with his actions as the managing general partner of Harvey Hotel Company and related partnerships and ventures (the "Probate Proceeding"). Several of the Company's officers and certain subsidiaries were also named defendants in the Probate Proceeding. In November 1995, the Company and the Plaintiff entered into a settlement agreement and release (the "Settlement Agreement") pursuant to which Plaintiff agreed to release the Company, including its subsidiaries, from the lawsuit. Pursuant to the Settlement Agreement, the Company paid an aggregate of $2.4 million for the Plaintiff's 1% interest in Harvey Hotel Company and a full release from all claims and causes of action. However, at that time, the named officers remained defendants in the Probate Proceeding. In the summer of 1996, during continuing mediation with the officers, the Plaintiff threatened the Company with further action, claiming fraud and misrepresentation in the negotiation of the November 1995 Settlement Agreement. In August 1996, there was a final resolution of the Probate Proceeding, a result of which the Company paid an additional $0.75 million for the full satisfaction of all claims and causes of action which could be asserted against the Company, its subsidiaries or its officers. The Company had reserved $1.65 million for this litigation. As a result, the Company recognized $0.9 million ($0.6 million after tax) as other income during the third quarter of 1996. On March 28, 1997, the Company paid approximately $663,000 to the State of Tennessee Department of Revenue in full settlement of all claims for franchise and excise tax related to United Inns, Inc. All of the owned hotels of the Company have undergone Phase I environmental assessments which generally provide a physical inspection and data base search but not soil or groundwater analysis. In addition, most of the Company's hotels have been inspected to determine the presence of asbestos-containing materials ("ACM's"). While ACM's are present in certain of the Company's properties, operations and maintenance programs for maintaining such ACM's have been implemented, or the ACM's have been scheduled to be or have been abated, at such hotels. None of the environmental assessments conducted to date have revealed any environmental condition that management believes would have a material adverse effect on the Company's business, assets or results of operations, nor is management aware of any such condition. However, it is possible that these assessments have not revealed all potential environmental liabilities or that there are material environmental liabilities of which management is not aware. In September 1995, the Company disposed of certain of its non-hotel properties to HH Land Company, L.P. ("HH Land Company"). Upon acquisition of the non-hotel properties, HH Land Company assumed all liabilities associated with the non-hotel properties through a formal indemnification agreement, including environmental liabilities associated with the properties. The Company remains contingently liable for the environmental costs associated with the properties. At such time that the Company determines that it is not probable that HH Land Company will fully pay the remediation costs related to the disposed properties, the Company will recognize such liabilities. The Company leases the land underlying several of its hotels under various long-term leases through the year 2063. Lease payments under the agreements were $11.0 million and $2.6 million in 1997 and 1996, respectively. F-23 28 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 15. COMMITMENTS AND CONTINGENCIES (CONTINUED) The Company and Mr. Huie, representing various land ventures, are co-borrowers of funds secured by Harvey Hotel - DFW Airport, Harvey Hotel - Dallas, Bristol Suites, and the various related land parcels. The Company and Mr. Huie agreed to an assignment of the debt to the various unrelated land ventures resulting in the assignment of 23.73%, 24.24% and 22.18% of the debt associated with the borrowings for each property, respectively. The related land parcels underlying each hotel are owned by Mr. Huie through the land ventures. The total debt and the amount allocated to Mr. Huie are as follows (in thousands):
1997 1996 -------------------- -------------------- Total Allocated Total Allocated Debt to Huie Debt to Huie --------- --------- --------- --------- Harvey Hotel - DFW Airport ......... $ 24,275 $ 5,762 $ 25,581 $ 6,071 Harvey Hotel - Dallas .............. 7,442 1,802 7,600 1,843 Bristol Suites ..................... 19,378 4,298 20,756 4,604
The Company is jointly and severally liable in the event of nonpayment by Mr. Huie of the debt allocated. For December 31, 1997 and 1996, the allocated amounts have not been reflected in the consolidated financial statements of the Company. However, the Company does not record interest expense on the allocated debt because payments made to Mr. Huie are appropriately recorded as rental expense under the related land leases. The land parcels at the respective hotels are security for the additional liability. 16. RELATED PARTY TRANSACTIONS HOTEL PROPERTIES AGREEMENT Concurrently with the Holiday Inn Acquisition, the Company, and Holiday Corporation and its affiliates (collectively, "HC") entered into a hotel properties agreement (the "Hotel Properties Agreement"). Pursuant to the Hotel Properties Agreement, the Company will offer to HC the opportunity to enter into a standard HC franchise agreement for each hotel that Bristol acquires, manages or develops that meets specified criteria. The Hotel Properties Agreement requires that 85% of the rooms in the Company's owned, leased and managed hotels be operated under a Holiday Inn brand, subject to certain limitations and approvals. The above provisions of the Hotel Properties Agreement will expire the earlier of (i) the date that HC terminates its obligation at any time following 24 months after the Holiday Inn Acquisition (the "Holiday Notice") or (ii) the date that HC no longer holds a controlling interest in the franchisor of the Holiday Inn brands. Additionally, the Company has a right of first refusal on any entity or other interest meeting certain criteria that HC wishes to acquire or develop, subject to certain limitations. HC can terminate its obligation under this provision in accordance with the Holiday Notice. The Company has agreed to enter into Franchise Agreements with HC pursuant to which certain Bristol properties will be rebranded to Holiday Inn brands, subject to normal franchising procedures. Franchise fees for these rebranded hotels will equal 0% of room revenue for 1997, 1% in 1998, 3% in 1999 and 5% in 2000. Amounts paid to HC pursuant to Franchise Agreements and related marketing, advertising and reservation services were $21.8 million in 1997, including $13.1 million for franchise royalty fees and $4.5 million of franchise marketing fees. F-24 29 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 16. RELATED PARTY TRANSACTIONS (CONTINUED) INTERIM SERVICES AGREEMENT The Company entered into an interim services agreement (the "ISA Agreement") with Holiday Hospitality Corporation ("HHC") for HHC to provide certain accounting, payroll, employee benefit, training, treasury, management information and construction and design services to Bristol for a transition period following the Holiday Inn Acquisition. In consideration for such services, the Company reimbursed HHC for the estimated cost incurred in connection with providing the services, totaling $1.3 million for the year ended December 31, 1997. The ISA Agreement expired in October 1997. 17. FAIR VALUE The Company has estimated the fair value of its financial instruments at December 31, 1997 and 1996, as required by Statement of Financial Accounting Standards No. 107, "Disclosure about Fair Value of Financial Instruments." The carrying values of cash and cash equivalents, accounts receivable, accounts payable and accrued expenses are reasonable estimates of their fair values. Marketable securities are carried at fair value, which is determined based upon quoted market prices. The carrying values of variable and fixed rate debt are reasonable estimates of their fair values. 18. QUARTERLY FINANCIAL DATA (UNAUDITED) The unaudited consolidated quarterly results of operations for the Company and the unaudited combined quarterly results of operations for the Predecessor are as follows (in thousands):
1995 --------------------------------------------------------------------- HARVEY HOTEL BRISTOL HOTEL COMPANY COMPANIES FEBRUARY TO SECOND THIRD FOURTH JANUARY 1995 MARCH QUARTER QUARTER QUARTER ------------ ------------- ------------ ------------ ------------ Revenues ...................................... $ 5,943 $ 29,910 $ 43,040 $ 46,205 $ 46,040 Operating income .............................. 1,932 6,221 8,016 5,484 6,874 Income (loss) before extraordinary item ....... 1,280 2,268 2,056 (290) 935 Net income (loss) ............................. 1,280 2,268 2,056 (290) (973) Earnings per common share: Income (loss) before extraordinary item: Basic .................................. -- $ 0.13 $ 0.12 $ (0.02) $ 0.05 Diluted ................................ -- $ 0.13 $ 0.12 $ (0.02) $ 0.05 Net income (loss): Basic .................................. -- $ 0.13 $ 0.12 $ (0.02) $ (0.05) Diluted ................................ -- $ 0.13 $ 0.12 $ (0.02) $ (0.05) Weighted average number of common and common equivalent shares: Basic .................................. -- 17,436,267 17,436,267 17,436,267 18,967,108 Diluted ................................ . -- 17,460,202 17,479,061 17,479,953 19,050,967
F-25 30 BRISTOL HOTEL COMPANY HARVEY HOTEL COMPANIES (PREDECESSOR) NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED) 18. QUARTERLY FINANCIAL DATA (UNAUDITED)
1996 -------------------------------------------------- BRISTOL HOTEL COMPANY FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER ----------- ----------- ----------- ----------- Revenues ..................................... $ 49,677 $ 51,237 $ 58,571 $ 52,355 Operating income ............................. 10,318 11,282 16,073 9,093 Income before extraordinary item ............. 3,863 4,375 6,835 2,676 Net income ................................... 3,863 4,375 6,835 2,676 Earnings per common share: Income before extraordinary item: Basic .................................. $ 0.16 $ 0.18 $ 0.28 $ 0.11 Diluted ................................ $ 0.15 $ 0.17 $ 0.27 $ 0.10 Net income: Basic .................................. $ 0.16 $ 0.18 $ 0.28 $ 0.11 Diluted ................................ $ 0.15 $ 0.17 $ 0.27 $ 0.10 Weighted average number of common and common equivalent shares: Basic ..................................... 24,848,760 24,848,760 24,848,760 24,848,760 Diluted ................................... 25,511,455 25,552,515 25,530,737 25,524,361
1997 ------------------------------------------------------ BRISTOL HOTEL COMPANY FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER ------------ ------------ ------------ ------------ Revenues ..................................... $ 58,261 $ 131,615 $ 163,005 $ 151,637 Operating income ............................. 13,301 26,909 32,252 25,434 Income before extraordinary item ............. 4,410 9,622 12,066 7,116 Net income (loss) ............................ 4,410 8,284 12,066 (4,287) Earnings per common share: Income (loss) before extraordinary item: Basic .................................. $ 0.18 $ 0.26 $ 0.28 $ 0.16 Diluted ................................ $ 0.17 $ 0.25 $ 0.27 $ 0.16 Net income (loss): Basic .................................. $ 0.18 $ 0.22 $ 0.28 $ (0.10) Diluted ................................ $ 0.17 $ 0.22 $ 0.27 $ (0.10) Weighted average number of common and common equivalent shares: Basic ..................................... 24,848,760 37,041,425 43,635,401 43,636,444 Diluted ................................... 25,796,808 37,997,744 44,643,133 44,629,022
Earnings per common share amounts and weighted average number of common and common equivalent shares have been retroactively adjusted to reflect the July 15, 1997 Stock Split and calculated in accordance with Statement of Financial Accounting Standards No. 128, "Earnings Per Share." The sum of the earnings (loss) per common share for the four quarters differs from the annual earnings per common share due to the required method of computing the weighted average number of shares in the respective periods. 19. SUBSEQUENT EVENT - OMAHA ACQUISITION On February 2, 1998, the Company announced that it had entered into a definitive agreement to acquire 20 midwestern hotels. Under the transaction, the Company will acquire by merger Omaha Hotel, Inc. and will purchase an individual hotel. The total consideration for these assets is as follows: $19.1 million in cash, $40.9 million of assumed debt and 1.43 million shares of the Company's common stock. The portfolio consists of nine full-service Holiday Inns, five Holiday Inns Express hotels, five Hampton Inns and one Homewood Suites with locations in Omaha, Nebraska; Moline, Illinois; Davenport, Iowa; central Kansas and Midland/Odessa, Texas. The acquisition is anticipated to close in April 1998. 20. SUBSEQUENT EVENT - PROPOSED MERGER On March 24, 1998, the Company announced a proposed merger with FelCor Suite Hotels, Inc. ("FelCor"), subject to approval by shareholders of both companies and final documentation. Under the terms of the proposed merger, FelCor will acquire the real estate holdings and associated debt of the Company in return for 31.7 million shares of newly issued FelCor stock. Prior to the merger, the Company will spin off, as a taxable dividend, all of its non-real estate holdings into a newly formed public company to be known as Bristol Hotels & Resorts, Inc. ("New Bristol"). Each of the Company's outstanding common shares will be exchanged for .685 shares of FelCor common stock. In addition, Bristol shareholders will receive a taxable distribution of one share of New Bristol common stock for each share of Bristol. The merger is expected to close by the end of June 1998. F-26 31 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. FELCOR SUITE HOTELS INC. Date: April 21, 1998 By: /s/ Lawrence D. Robinson ------------------------------ Lawrence D. Robinson Senior Vice President, General Counsel and Secretary 32 INDEX TO EXHIBITS
EXHIBIT NO. EXHIBITS ------- -------- 2.1 Agreement and Plan of Merger by and between FelCor Suite Hotels, Inc. and Bristol Hotel Company dated as of March 23, 1998 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Price Waterhouse LLP
EX-2.1 2 AGREEMENT AND PLAN OF MERGER DATED 3/23/98 1 EXHIBIT 2.1 ================================================================================ AGREEMENT AND PLAN OF MERGER BETWEEN BRISTOL HOTEL COMPANY AND FELCOR SUITE HOTELS, INC. DATED MARCH 23, 1998 ================================================================================ 2 TABLE OF CONTENTS (NOT A PART OF THE AGREEMENT)
PAGE ---- I. THE MERGER AND CERTAIN RELATED TRANSACTIONS....................... 1 1.1. The Merger.................................................. 1 1.2. Pre-Merger Transactions..................................... 2 1.3. Closing..................................................... 2 1.4. Effective Time.............................................. 2 1.5. Articles of Amendment and Restatement of Surviving Corporation................................................. 2 1.6. Bylaws of Surviving Corporation............................. 2 1.7. Directors and Officers of Surviving Corporation............. 2 1.8. Effect of the Merger on the Capital Stock of FelCor and Bristol..................................................... 3 1.9. Exchange of Certificates.................................... 4 1.10. Bristol Stock Options....................................... 5 II. REPRESENTATIONS AND WARRANTIES OF FELCOR......................... 6 2.1. Organization, Standing and Power of FelCor.................. 6 2.2. FelCor Subsidiaries......................................... 7 2.3. Capital Structures.......................................... 7 2.4. Authority; Noncontravention; Consents....................... 8 2.5. SEC Documents; Financial Statements; Undisclosed Liabilities................................................. 9 2.6. Absence of Certain Changes or Events........................ 10 2.7. Litigation.................................................. 10 2.8. Properties.................................................. 10 2.9. Environmental Matters....................................... 12 2.10. Absence of Changes in Benefit Plans; ERISA Compliance....... 12 2.11. Taxes....................................................... 12 2.12. Brokers..................................................... 13 2.13. Compliance with Laws........................................ 13 2.14. Labor Matters............................................... 13 2.15. Compliance with Agreements.................................. 14 2.16. Opinion of Financial Advisor................................ 14 2.17. State Takeover Statutes..................................... 14 2.18. Proxy and Registration Statement............................ 14 2.19. Definition of Knowledge of FelCor........................... 14 III. REPRESENTATIONS AND WARRANTIES OF BRISTOL....................... 14 3.1. Organization, Standing and Power of Bristol................. 14 3.2. Bristol Subsidiaries........................................ 15 3.3. Capital Structure........................................... 15 3.4. Authority; Noncontravention; Consents....................... 16 3.5. SEC Documents; Financial Statements; Undisclosed Liabilities................................................. 17 3.6. Absence of Certain Changes or Events........................ 18 3.7. Litigation.................................................. 18 3.8. Properties.................................................. 18 3.9. Environmental Matters....................................... 19 3.10. Absence of Changes in Benefit Plans; ERISA Compliance....... 20 3.11. Taxes....................................................... 20 3.12. No Payments to Employees, Officers or Directors............. 21 3.13. Brokers..................................................... 21 3.14. Compliance with Laws........................................ 21 3.15. Labor Matters............................................... 21 3.16. Compliance with Agreements.................................. 21
i 3 TABLE OF CONTENTS -- (CONTINUED) (NOT A PART OF THE AGREEMENT)
PAGE ---- 3.17. Opinion of Financial Advisor................................ 21 3.18. State Takeover Statutes..................................... 22 3.19. Proxy and Registration Statement............................ 22 3.20. Definition of Knowledge of Bristol.......................... 22 IV. COVENANTS........................................................ 22 4.1. Acquisition Proposals....................................... 22 4.2. Conduct of FelCor's and Bristol's Business Pending Merger... 23 4.3. Other Actions............................................... 25 V. ADDITIONAL COVENANTS.............................................. 26 5.1. Preparation of the Registration Statements and the Proxy Statement; FelCor Stockholders Meeting and Bristol Stockholders Meeting........................................ 26 5.2. Access to Information; Confidentiality...................... 27 5.3. Consents; Notifications; Other Actions...................... 27 5.4. Tax Treatment............................................... 27 5.5. Public Announcements........................................ 27 5.6. Listing..................................................... 28 5.7. Transfer and Gains Taxes.................................... 28 5.8. Indemnification............................................. 28 5.9. Spin-Off Transactions....................................... 28 5.10. Declaration of Dividends and Distributions.................. 29 5.11. Affiliates; Etc. ........................................... 29 5.12. Bristol's Accumulated and Current Earnings and Profits...... 29 5.13. REIT-Related Matters........................................ 29 5.14 Interim Credit Facility..................................... 29 VI. CONDITIONS....................................................... 30 6.1. Conditions To Each Party's Obligation To Effect the Merger...................................................... 30 6.2. Conditions To Obligations of FelCor......................... 31 6.3. Conditions To Obligations of Bristol........................ 32 6.4. Frustration of Closing Conditions........................... 32 VII. TERMINATION, AMENDMENT AND WAIVER........................... 32 7.1. Termination................................................. 32 7.2. Certain Fees and Expenses................................... 33 7.3. Effect of Termination....................................... 35 7.4. Amendment................................................... 35 7.5. Extension; Waiver........................................... 35 VIII. GENERAL PROVISIONS............................................. 35 8.1. Nonsurvival of Representations and Warranties............... 35 8.2. Notices..................................................... 35 8.3. Certain Definitions......................................... 36 8.4. Interpretation.............................................. 37 8.5. Counterparts................................................ 37 8.6. Entire Agreement; No Third-party Beneficiaries.............. 37 8.7. Governing Law............................................... 37 8.8. Assignment.................................................. 38 8.9. Enforcement................................................. 38 8.10. Severability................................................ 38
ii 4 LIST OF EXHIBITS (NOT A PART OF THE AGREEMENT)
EXHIBIT ------- Form of Affiliate's Agreement............................... A Form of Tax Letters......................................... B Form of REIT Opinion........................................ C
LIST OF SCHEDULES (NOT A PART OF THE AGREEMENT)
SCHEDULE -------- Modifications to Articles of Amendment and Restatement of FelCor.................................................... 1.5 Directors and Officers...................................... 1.7 Joint Operating Committee................................... 4.2 Form of Bristol E&P Statement............................... 5.12
LIST OF SCHEDULES TO FELCOR DISCLOSURE LETTER (NOT A PART OF THE AGREEMENT)
SCHEDULE -------- Name, Formation Jurisdiction and Ownership of Subsidiaries.............................................. 2.2 Outstanding Securities...................................... 2.3 Conflicts with Laws or Agreements and Necessary Consents.... 2.4 SEC Filings................................................. 2.5 Material Changes............................................ 2.6 Material Legal Proceedings.................................. 2.7 Properties.................................................. 2.8 Changes in Benefit Plans and Compliance with ERISA.......... 2.10 Tax Liabilities; Qualified REIT Subsidiaries................ 2.11 Union Contracts............................................. 2.14 Defaults in Agreements...................................... 2.15 Individuals Having "Knowledge".............................. 2.19 Acquisition Proposals....................................... 4.1 Exceptions to Pre-Closing Covenants......................... 4.2
LIST OF SCHEDULES TO BRISTOL DISCLOSURE LETTER (NOT A PART OF THE AGREEMENT)
SCHEDULE -------- Bristol Subsidiaries........................................ 3.2 Capital Structure........................................... 3.3 Authority; Noncontravention; Consents....................... 3.4 SEC Documents............................................... 3.5 Absence of Certain Changes or Events........................ 3.6 Litigation.................................................. 3.7 Properties.................................................. 3.8 Environmental Issues........................................ 3.9 Absence of Changes in Benefit Plans; ERISA Compliance....... 3.10 Taxes....................................................... 3.11 No Payments to Employees, Officers or Directors............. 3.12
iii 5
SCHEDULE -------- Labor Matters............................................... 3.15 Compliance with Agreements.................................. 3.16 Definition of Knowledge of Bristol.......................... 3.20 Acquisition Proposals....................................... 4.1 Conduct of Bristol's Business Pending Merger................ 4.2
iv 6 INDEX OF DEFINED TERMS (NOT A PART OF THE AGREEMENT)
PAGE ---- Acquisition Agreement....................................... 22 Acquisition Proposal........................................ 22 Affiliate................................................... 36 Agreement................................................... 1 Amended Bristol Exercise Price.............................. 6 Amended Bristol Option...................................... 5 Articles of Merger.......................................... 2 Bankruptcy Exception........................................ 8 Base Amount................................................. 33 BHMC........................................................ 1 BHR......................................................... 1 BHR Common Shares........................................... 1 BHR Option.................................................. 5 Break-Up Expenses........................................... 34 Break-Up Fee................................................ 33 Break-Up Fee Tax Opinion.................................... 33 Bristol..................................................... 1 Bristol Benefit Plans....................................... 20 Bristol Board............................................... 1 Bristol Bylaws.............................................. 15 Bristol Certificate......................................... 15 Bristol Certificates........................................ 4 Bristol Common Shares....................................... 1 Bristol Corporate Subsidiaries.............................. 1 Bristol Director Plan....................................... 5 Bristol Disclosure Letter................................... 14 Bristol Filed SEC Documents................................. 17 Bristol Financial Statement Date............................ 18 Bristol Hotel............................................... 36 Bristol Hotel Subsidiaries.................................. 36 Bristol Incentive Plan...................................... 5 Bristol Material Adverse Change............................. 18 Bristol Material Adverse Effect............................. 14 Bristol Preferred Shares.................................... 15 Bristol Properties.......................................... 18 Bristol SEC Documents....................................... 17 Bristol Stockholder Approval................................ 16 Bristol Stockholders Meeting................................ 26 Bristol Subsidiaries........................................ 15 Business Day................................................ 36 Cash Distribution........................................... 34 Certificate of Merger....................................... 2 Closing..................................................... 2 Closing Date................................................ 2 Closing Price............................................... 3 Code........................................................ 1 Confidentiality Agreements.................................. 27 Department.................................................. 2 DGCL........................................................ 1
v 7 INDEX OF DEFINED TERMS (NOT A PART OF THE AGREEMENT) -- (CONTINUED)
PAGE ---- Drop Dead Date.............................................. 32 E&P......................................................... 29 Effective Time.............................................. 2 Encumbrances................................................ 10 Environmental Law........................................... 36 ERISA....................................................... 12 Excess Shares............................................... 3 Exchange Act................................................ 9 Exchange Agent.............................................. 4 Exchange Ratio.............................................. 3 Exemptions.................................................. 29 Expense Fee................................................. 34 Federal Legislative or Regulatory Change.................... 30 FelCor...................................................... 1 FelCor 1994 Option Plan..................................... 7 FelCor 1995 Option Plan..................................... 7 FelCor 1998 Option Plan..................................... 7 FelCor Articles............................................. 7 FelCor Benefit Plans........................................ 12 FelCor Board................................................ 1 FelCor Bylaws............................................... 7 FelCor Common Shares........................................ 7 FelCor Disclosure Letter.................................... 6 FelCor Filed SEC Documents.................................. 9 FelCor Financial Statement Date............................. 10 FelCor Hotel................................................ 36 FelCor Material Adverse Change.............................. 10 FelCor Material Adverse Effect.............................. 6 FelCor OP Units............................................. 7 FelCor Operating Partnership................................ 6 FelCor Operating Partnership Agreement...................... 7 FelCor Option Plans......................................... 7 FelCor Properties........................................... 10 FelCor SEC Documents........................................ 9 FelCor Series A Preferred Shares............................ 7 FelCor Stockholder Approval................................. 8 FelCor Stockholders Meeting................................. 26 FelCor Subsidiaries......................................... 7 First Dividend Date......................................... 4 GAAP........................................................ 9 Governmental Entity......................................... 9 Hazardous Material.......................................... 36 HSR Act..................................................... 17 Indebtedness................................................ 36 Indemnified Parties......................................... 28 IRS......................................................... 33 Joint Operating Committee................................... 23 Knowledge................................................... 25 Knowledge of Bristol........................................ 21
vi 8 INDEX OF DEFINED TERMS (NOT A PART OF THE AGREEMENT) -- (CONTINUED)
PAGE ---- Knowledge of FelCor......................................... 14 Laws........................................................ 9 Leasing Transactions........................................ 1 Liens....................................................... 7 Measurement Date............................................ 7 Merger...................................................... 1 Merrill..................................................... 21 MGCL........................................................ 1 Non-Corporate Bristol Hotel Subsidiaries.................... 36 NYSE........................................................ 3 Original Bristol Option..................................... 5 Payor....................................................... 34 Permits..................................................... 13 Person...................................................... 36 Preliminary E&P Statement................................... 29 Principal Stockholders...................................... 1 Property Restrictions....................................... 11 Proxy Statement............................................. 9 Qualifying Income........................................... 33 REA Agreement............................................... 11 Recipient................................................... 34 Record Date................................................. 36 Registration Statements..................................... 9 REIT........................................................ 13 REIT Requirements........................................... 33 SEC......................................................... 9 Securities Act.............................................. 5 Spin-Off Agreement.......................................... 1 Spin-Off Transactions....................................... 37 Stockholder Approvals....................................... 16 Subsidiary.................................................. 37 Superior Proposal........................................... 23 Superior Proposal Transaction Notice........................ 23 Surviving Certificates...................................... 4 Surviving Corporation....................................... 1 Surviving Corporation Common Shares......................... 3 Taxes....................................................... 37 Trading Day................................................. 3 Transaction Documents....................................... 37 Transfer and Gains Taxes.................................... 28 Valuation Ratio............................................. 5 Volume Weighted Average Trading Price....................... 37 Voting Agreement............................................ 1
vii 9 AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated March 23, 1998, is by and between Bristol Hotel Company, a Delaware corporation ("Bristol"), and FelCor Suite Hotels, Inc., a Maryland corporation ("FelCor"). RECITALS: A. The Board of Directors of Bristol (the "Bristol Board") and the Board of Directors of FelCor (the "FelCor Board") deem it advisable and in the best interests of their respective companies that, subject to the conditions and other provisions contained herein, Bristol merge with and into FelCor (the "Merger"), with FelCor as the surviving corporation in the Merger (as such, the "Surviving Corporation"); B. For federal income tax purposes, it is intended that the Merger qualify as a tax-free reorganization within the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code"); C. FelCor has advised Bristol that, in order for FelCor to maintain its status as a real estate investment trust following the Merger, FelCor must not acquire certain assets and liabilities of the hotel management and operation business of Bristol and the Bristol Subsidiaries as a result of the Merger. Accordingly, prior to and as a condition precedent to the Merger, (i) Bristol will, or will cause the Bristol Subsidiaries to, (a) reorganize internally and contribute to Bristol Hotel Management Corporation, a Delaware corporation ("BHMC"), or another subsidiary of BHR certain of the assets and liabilities of Bristol and the Bristol Subsidiaries and contribute to Bristol Hotels & Resorts, Inc., a Delaware corporation ("BHR"), all the capital stock of BHMC, and (b) distribute to the holders of common stock, par value of $0.01 per share, of Bristol ("Bristol Common Shares") all of the outstanding shares of common stock, par value of $0.01 per share, of BHR (the "BHR Common Shares") in a transaction expected to be treated for federal income tax purposes as a taxable dividend of Bristol's earnings and profits, (ii) Bristol and/or the Bristol Hotel Subsidiaries, as the case may be, will enter into leases with one or more wholly owned subsidiaries of BHR and will cancel certain existing management contracts (the "Leasing Transactions"), and (iii) Bristol will cause those Bristol Hotel Subsidiaries that are taxable as corporations under the Code ("Bristol Corporate Subsidiaries") to merge with and into one or more Non-Corporate Bristol Hotel Subsidiaries, all as provided in the Spin-Off Agreement entered into by Bristol, BHMC and BHR contemporaneously with this Agreement (the "Spin-Off Agreement"); D. Contemporaneously with the execution of this Agreement, Bristol, FelCor and certain other Persons (such other Persons, collectively, the "Principal Stockholders") have entered into a Voting and Cooperation Agreement (the "Voting Agreement") pursuant to which the Principal Stockholders have agreed to vote their capital stock holdings for adoption of the Merger Agreement and to refrain from taking certain actions; and E. In connection with the transactions contemplated hereby, (i) the Bristol Board has approved the Voting Agreement and other transactions contemplated hereby so as to render inapplicable the special stockholder voting requirements of Section 203 of the DGCL and (ii) the FelCor Board has adopted resolutions relating to ownership of FelCor Common Shares by the Principal Stockholders. Now, therefore, in consideration of the foregoing and the representations, warranties and covenants contained herein, the parties hereto hereby agree as follows: I. THE MERGER AND CERTAIN RELATED TRANSACTIONS 1.1. The Merger. (a) On the terms and subject to the conditions of this Agreement, and in accordance with the Maryland General Corporation Law (the "MGCL") and the Delaware General Corporation Law (the "DGCL"), at the Effective Time, Bristol will be merged with and into FelCor, whereupon the separate corporate existence of Bristol will cease and FelCor will be the Surviving Corporation. 1 10 (b) From and after the Effective Time, the Surviving Corporation will possess all the rights, privileges and powers and will assume all of the liabilities, obligations and duties of Bristol and FelCor, all as provided under the MGCL and the DGCL. 1.2. Pre-Merger Transactions. Prior to the Effective Time, Bristol will cause BHMC, BHR and the Bristol Subsidiaries to consummate the transactions contemplated by the Spin-Off Agreement and take such actions as are required under the Spin-Off Agreement to be taken by it. 1.3. Closing. The closing of the Merger (the "Closing") will take place at a date and time to be specified by the parties, which (subject to satisfaction or waiver of the conditions set forth in Article VI) will be no later than the third Business Day after satisfaction or waiver of the conditions set forth in Article VI (the "Closing Date") at the offices of Jones, Day, Reavis & Pogue, 2300 Trammell Crow Center, 2001 Ross Avenue, Dallas, Texas, unless another time, date or place is agreed to in writing by the parties. 1.4. Effective Time. As soon as practicable following the satisfaction or waiver of the conditions set forth in Article VI, (i) the parties will execute and file articles of merger (the "Articles of Merger") with the State Department of Assessments and Taxation of the State of Maryland (the "Department") in accordance with the MGCL, (ii) the Surviving Corporation will execute and file a certificate of merger (the "Certificate of Merger") with the Secretary of State of the State of Delaware in accordance with the DGCL, and (iii) the parties will make any other filings and recordings required under the MGCL and the DGCL. The Merger will become effective (the "Effective Time") at 9:00 a.m., New York City time, on the Trading Day immediately following the Closing Date or, if later, such date and time as the Department accepts the Articles of Merger for recording and the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such other time as Bristol and FelCor agree should be specified in the Articles of Merger and Certificate of Merger (not to exceed 30 calendar days after the Articles of Merger are accepted for recording by the Department and the Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware). Unless otherwise agreed, the parties will cause the Effective Time to occur at 9:00 a.m., New York City time, on the Trading Day immediately following the Closing Date. 1.5. Articles of Amendment and Restatement of Surviving Corporation. The Articles of Amendment and Restatement of FelCor will be amended and restated at the Effective Time in the manner specified in Schedule 1.5 or as otherwise agreed between FelCor and Bristol, and will be the Articles of Amendment and Restatement of the Surviving Corporation from and after the Effective Time until further amended or restated in accordance therewith and the MGCL. 1.6. Bylaws of Surviving Corporation. From and after the Effective Time, the Bylaws of the Surviving Corporation will be the Bylaws of FelCor as in effect immediately prior to the Effective Time, until further amended or restated in accordance therewith and the MGCL. 1.7. Directors and Officers of Surviving Corporation. From and after the Effective Time, the individuals identified on or determined in accordance with Schedule 1.7 will serve as directors of the Surviving Corporation and will be divided into "Class I", "Class II" and "Class III" directors as specified on Schedule 1.7 until the earlier of the resignation or removal of any such individual or until their respective successors are duly elected and qualified, as the case may be. In the event that any such person is unable or unwilling to serve as a director at the Effective Time, the party that designated such individual will have the right to designate a replacement for such individual, which right of replacement will terminate at the Effective Time and is subject to approval of the other party hereto, which approval may not be unreasonably withheld or delayed. Upon such replacement, Schedule 1.7 will be, without further action, deemed to have been amended to reflect such selection. The officers of FelCor immediately prior to the Effective Time will be the officers of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. 2 11 1.8. Effect of the Merger on the Capital Stock of FelCor and Bristol. At the Effective Time, by virtue of the Merger and without any action by the holder of any Bristol Common Shares, FelCor Common Shares or FelCor Series A Preferred Shares: (a) Each FelCor Common Share and FelCor Series A Preferred Share outstanding immediately prior to the Effective Time will remain outstanding, and each certificate representing outstanding FelCor Common Shares and FelCor Series A Preferred Shares will thereafter represent an equal number of Surviving Corporation Common Shares and Surviving Corporation Series A Preferred Shares, as the case may be; (b) Subject to the provisions of Sections 1.8(c) and 1.8(d), each Bristol Common Share outstanding immediately prior to the Effective Time will be converted into the right to receive 0.685 (the "Exchange Ratio") of a validly issued, fully paid and nonassessable share of common stock, par value of $0.01 per share, of the Surviving Corporation ("Surviving Corporation Common Shares"), and each Bristol Common Share theretofore outstanding will cease to be outstanding and will cease to exist, and each holder of a Bristol Certificate will thereafter cease to have any rights with respect to such shares, except the right to receive, without interest, the Surviving Corporation Common Shares as calculated pursuant to this Section 1.8(b) and cash in lieu of fractional Surviving Corporation Common Shares in accordance with Section 1.8(c) or Section 1.8(d), upon the surrender of such Bristol Certificate in accordance with Section 1.9; (c) Notwithstanding any other provision hereof, no fractional Surviving Corporation Common Shares will be issued in connection with the Merger. No such holder will be entitled to dividends, voting rights or any other stockholder rights in respect of any fractional share. Instead, as soon as practicable after the Effective Time, the Exchange Agent will determine the excess of (i) the number of whole Surviving Corporation Common Shares delivered to the Exchange Agent by FelCor pursuant to Section 1.9(a) over (ii) the aggregate number of whole Surviving Corporation Common Shares to be distributed to holders of Bristol Common Shares pursuant to Section 1.8(b) (such excess, the "Excess Shares"). FelCor will instruct the Exchange Agent (i) to sell the Excess Shares at then-prevailing prices on the New York Stock Exchange (the "NYSE") through one or more member firms of the NYSE and (ii) to use reasonable efforts to complete the sale of the Excess Shares as promptly following the Effective Time as, in the Exchange Agent's sole judgment, is practicable consistent with obtaining the best execution of such sales in light of prevailing market conditions, and in any event, within 90 calendar days following the Effective Time. The Exchange Agent will hold such proceeds in trust for the holders of Bristol Common Shares who would otherwise be entitled to receive a fraction of a Surviving Corporation Common Share, and will determine the portion of the proceeds to which each such holder is entitled, if any, by multiplying the amount of the aggregate net proceeds of such sale by a fraction, the numerator of which is the amount of the fractional share interest to which such holder is entitled, and the denominator of which is the aggregate amount of fractional share interests to which all such holders of Bristol Common Shares are entitled. The Surviving Corporation will pay all commissions, transfer taxes, Exchange Agent's fees and other out-of-pocket transaction costs incurred in connection with the sale of such Excess Shares; (d) Notwithstanding the provisions of Section 1.8(c), FelCor may elect at its option, exercised prior to the Effective Time, in lieu of the issuance and sale of Excess Shares and the making of payments pursuant to Section 1.8(c), to pay each holder of Bristol Common Shares who would otherwise be entitled to receive a fraction of a Surviving Corporation Common Share, an amount in cash equal to the Closing Price immediately preceding the Effective Time multiplied by the fraction of a Surviving Corporation Common Share to which such holder would otherwise be entitled. For purposes of this Agreement, "Closing Price" means the closing price of the FelCor Common Shares (as reported in the New York Stock Exchange, Inc. Composite Tape) on the Closing Date and "Trading Day" means any day on which the NYSE is open for trading; and 3 12 (e) Each Bristol Common Share issued and held in Bristol's treasury or by FelCor or any wholly owned FelCor Subsidiary at the Effective Time, if any, will cease to be outstanding and will be canceled and retired and will cease to exist without payment of any consideration therefor. 1.9. Exchange of Certificates. (a) As of the Effective Time, FelCor will deposit with FelCor's transfer agent (the "Exchange Agent"), for the benefit of the holders of certificates (the "Bristol Certificates") representing Bristol Common Shares for exchange in accordance with this Section 1.9, certificates (the "Surviving Certificates") representing Surviving Corporation Common Shares to be issued pursuant to Article I. (b) Promptly after the Effective Time, the Surviving Corporation will cause the Exchange Agent to mail to each holder of record of Bristol Common Shares as of the Effective Time a letter of transmittal which will specify (i) that delivery will be effected, and risk of loss and title to Bristol Certificates will pass, only upon delivery of such Bristol Certificates to the Exchange Agent, and will be in such form and have such other provisions as the Surviving Corporation may reasonably specify, and (ii) instructions for use in effecting the surrender of such Bristol Certificates in exchange for Surviving Certificates and cash in lieu of fractional shares. In addition, the Surviving Corporation will enter into such other arrangements as Bristol may reasonably request prior to the Effective Time to permit hand delivery of Bristol Certificates in exchange for Surviving Certificates at the office of the Exchange Agent maintained for such purposes in New York City commencing promptly after the Effective Time. Upon surrender of a Bristol Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such Bristol Certificate will be entitled to receive in exchange therefor (A) a Surviving Certificate representing the number of whole Surviving Corporation Common Shares, (B) a check representing the amount of unpaid dividends and distributions, if any, which such holder has the right to receive pursuant to the provisions of Section 1.9(c) in respect of the Bristol Certificate surrendered, and (C) a check or the right to receive a check representing the amount of cash in lieu of a fractional Surviving Corporation Common Share, if any, which such holder has the right to receive pursuant to the provisions of Section 1.8 in respect of the Bristol Certificate surrendered, in each case, after giving effect to any required withholding Tax, and the Bristol Certificates so surrendered will forthwith be canceled. No interest will be paid or accrued on the cash in lieu of fractional Surviving Corporation Common Shares and unpaid dividends and distributions, if any, payable to holders of Bristol Certificates. In the event of a transfer of rights to receive the consideration provided herein with respect to Bristol Common Shares which is not registered in the transfer records of Bristol, a Surviving Certificate representing the proper number of Surviving Corporation Common Shares, together with a check for the cash to be paid in lieu of any fractional Surviving Corporation Common Shares, if any, and unpaid dividends and distributions, if any, which such holder has the right to receive pursuant to the provisions of Section 1.8 and Section 1.9(c), respectively, in respect of the Bristol Certificate so surrendered, after giving effect to any required withholding Tax, may be issued to such transferee if the Bristol Certificate is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid. All Bristol Certificates so surrendered will be canceled forthwith. (c) Notwithstanding any other provisions of this Agreement, no dividends or other distributions on Surviving Corporation Common Shares will be paid with respect to any Bristol Common Shares represented by a Bristol Certificate until the Bristol Certificate is surrendered for exchange as provided herein. Subject to the effect of applicable escheat and other Laws, following surrender of any Bristol Certificate, there will be paid to the holder of the Surviving Certificate issued in exchange therefor, without interest, (i) at the time of such surrender, the amount of dividends or other distributions with a record date after July 15, 1998 (the "First Dividend Date") theretofore payable with respect to such whole Surviving Corporation Common Shares and not paid, less the amount of withholding Taxes, if any, which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the First Dividend Date but prior to surrender and a payment date subsequent to surrender payable with respect to such whole Surviving Corporation Common Shares, less the amount of withholding Taxes, if any, which may be required thereon. 4 13 (d) From and after the Effective Time, there will be no transfers on the stock transfer books of Bristol of the Bristol Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Bristol Certificates are presented to the Surviving Corporation, they will be canceled and exchanged for certificates for Surviving Corporation Common Shares and cash in lieu of fractional Surviving Corporation Common Shares, if any, and unpaid dividends and distributions deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in Section 1.8 and this Section 1.9. Bristol Certificates surrendered for exchange by any Person constituting an "affiliate" of Bristol for purposes of Rule 145(c) under the Securities Act of 1933, as amended (the "Securities Act"), will not be exchanged until the Surviving Corporation has received a written agreement from such Person as contemplated by Section 5.11. (e) Any portion of the Surviving Certificates made available to the Exchange Agent pursuant to Section 1.9(a) which remains unclaimed by the holders of Bristol Common Shares for 180 calendar days after the Effective Time will be delivered to the Surviving Corporation, upon demand of the Surviving Corporation, and any former Bristol stockholders who have not theretofore complied with this Section 1.9 may look only to the Surviving Corporation for payment of their Surviving Corporation Common Shares, cash in lieu of fractional shares and unpaid dividends and distributions on the Surviving Corporation Common Shares deliverable in respect of each Bristol Common Share such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. (f) None of FelCor, Bristol, the Exchange Agent or any other Person will be liable to any former holder of Bristol Common Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. (g) In the event any Bristol Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent or the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Bristol Certificate the Surviving Corporation Common Shares and cash in lieu of fractional Surviving Corporation Common Shares, and unpaid dividends and distributions on Surviving Corporation Common Shares as provided in Section 1.8 and Section 1.9(c), respectively, deliverable in respect thereof pursuant to this Agreement. 1.10. Bristol Stock Options. (a) At the Spin-Off Time (as defined in the Spin-Off Agreement), each outstanding option (each, an "Original Bristol Option") to purchase Bristol Common Shares under Bristol's Amended and Restated 1995 Equity Incentive Plan (the "Bristol Incentive Plan") or Stock Option Plan for Non-Employee Directors (the "Bristol Director Plan"), whether or not then exercisable or vested, all of which Original Bristol Options that are outstanding as of the Measurement Date are listed in Schedule 3.3 to the Bristol Disclosure Letter, will continue to have, and be subject to, the same terms and conditions as set forth in the Bristol Incentive Plan or the Bristol Director Plan (as the case may be) and related option agreements pursuant to which the Original Bristol Options were granted, provided that each Original Bristol Option will be redenominated into two options which will be continuations of the Original Bristol Options, effected through amendment of Original Bristol Options to an "Amended Bristol Option" and a "BHR Option," each having identical terms and conditions to the Original Bristol Options except: (i) the BHR Option will be an option to purchase that number of BHR Common Shares equal to the product of the number of Bristol Common Shares covered by such Original Bristol Option immediately prior to the Spin-Off Time and the Spin-Off Conversion Ratio (as defined in the Spin-Off Agreement), rounded to the nearest whole number of BHR Common Shares, (ii) service with either Bristol, BHR or their respective Subsidiaries following the Effective Time will satisfy the vesting requirements and termination terms thereof, (iii) the per share exercise price for each BHR Option will be an amount equal to the quotient of (A) the product of (x) 0.11385, subject to adjustment if and to the extent necessary to ensure that no additional compensation expense results as specified in accordance with Emerging Issues Task Force 90-9 (the "Valuation Ratio"), and (y) the exercise price for the Original Bristol Options, divided by (B) the Spin-Off Conversion Ratio, (iv) the per share exercise price for the Amended Bristol Options will be the product of (x) 1 minus the Valuation Ratio and 5 14 (y) the exercise price for the Original Bristol Options (the "Amended Bristol Exercise Price"), and (v) all references to the Bristol Board or Bristol will, with respect to the BHR Options, be deemed to be references to the Board of Directors of BHR and BHR, respectively. Effective as of the Spin-Off Time, (A) BHR will assume all obligations with respect to each BHR Option, (B) BHR will reserve for issuance the number of BHR Common Shares that become issuable upon the exercise of such BHR Options, and (C) Bristol will have no obligations with respect to any BHR Options. Not later than the Spin-Off Time, Bristol and BHR will amend (and each may restate) the Bristol Incentive Plan and the Bristol Director Plan to effect the foregoing changes to such Plans. (b) At the Effective Time, the Surviving Corporation will expressly assume the Bristol Incentive Plan and the Bristol Director Plan and Bristol's obligations under the Amended Bristol Options on and after the Effective Time. Each Amended Bristol Option will continue to have, and be subject to, the same terms and conditions as set forth in the Bristol Incentive Plan or the Bristol Director Plan (as the case may be) and related option agreements as modified by Section 1.10(a), provided that the Amended Bristol Options will be further amended to provide that, (i) all references to Bristol Common Shares will be deemed to be references to Surviving Corporation Common Shares, (ii) service with either BHR, the Surviving Corporation or their respective Subsidiaries following the Effective Time will satisfy the vesting requirements and termination terms thereof, (iii) each Amended Bristol Option will be exercisable for that number of whole Surviving Corporation Common Shares equal to the product of the number of Bristol Common Shares covered by the Amended Bristol Option immediately prior to the Effective Time and the Exchange Ratio, rounded to the nearest whole number of Surviving Corporation Common Shares, (iv) the exercise price per Surviving Corporation Common Share under each Amended Bristol Option will be equal to the Amended Bristol Exercise Price divided by the Exchange Ratio, rounded to the nearest cent, and (v) all references to the Bristol Board or Bristol will be deemed to be references to the Board of Directors of the Surviving Corporation and the Surviving Corporation, respectively; provided, however that all decisions relating to the interpretation or amendment of the Amended Bristol Options will require the approval of the Compensation Committee of BHR, except for adjustments to the exercise price or nature of securities to be awarded upon exercise of an Amended Bristol Option in connection with a transaction in which the Amended Bristol Options are treated in the same manner as options under other FelCor Option Plans. The Surviving Corporation will reserve for issuance the number of Surviving Corporation Common Shares that become issuable upon the exercise of such Amended Bristol Options. As soon as practicable, the Surviving Corporation will (i) amend (and each may restate) the Bristol Incentive Plan and the Bristol Director Plan to effect the foregoing changes to such Plans, effective as of the Effective Time and (ii) file with the SEC a registration statement on Form S-8 or other appropriate form with respect to the Surviving Corporation Common Shares issuable pursuant to the Amended Bristol Options. II. REPRESENTATIONS AND WARRANTIES OF FELCOR Except as set forth in the letter of even date herewith signed by the President or Vice President of FelCor in his capacity as such and delivered to Bristol simultaneously with the execution and delivery of this Agreement (the "FelCor Disclosure Letter"), FelCor represents and warrants to Bristol as follows: 2.1. Organization, Standing and Power of FelCor. FelCor is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Maryland and has the requisite corporate power and authority to carry on its business as now being conducted. FelCor is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, could not be reasonably expected to have a material adverse effect on the business, financial condition or results of operations of FelCor and the FelCor Subsidiaries, taken as a whole (a "FelCor Material Adverse Effect"). FelCor has delivered to Bristol complete and correct copies of its Articles of Amendment and Restatement, its Bylaws and the Amended and Restated Agreement of Limited Partnership of FelCor Suites Limited Partnership, a Delaware limited partnership (the "FelCor Operating Partnership"), in each case as amended 6 15 or supplemented to the date of this Agreement and currently in force and effect (respectively, the "FelCor Articles", the "FelCor Bylaws" and the "FelCor Operating Partnership Agreement"). 2.2. FelCor Subsidiaries. (a) Schedule 2.2 to the FelCor Disclosure Letter sets forth (i) the name and jurisdiction of incorporation or formation of each Subsidiary of FelCor and of each other Person in which FelCor owns, directly or indirectly, an equity or ownership interest (collectively, the "FelCor Subsidiaries"), (ii) the name of the FelCor Hotel, if any, in which any FelCor Subsidiary owns or holds an interest and the nature of that ownership or other interest, and (iii) if such FelCor Subsidiary is not wholly owned (directly or indirectly) by FelCor, (A) the percentage of capital stock or other equity interests held by FelCor, and (B) the record owners (or class of owners with respect to the FelCor Operating Partnership) of outstanding shares of its capital stock or other equity interests. (b) All the outstanding shares of capital stock of each FelCor Subsidiary that is a corporation have been validly issued and are fully paid and nonassessable. Except as set forth in Schedule 2.2 to the FelCor Disclosure Letter, (i) all the outstanding shares of capital stock of each FelCor Subsidiary that is a corporation are owned by FelCor or by another FelCor Subsidiary free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, "Liens"), and (ii) all equity interests of each FelCor Subsidiary that is a partnership, joint venture, limited liability company or trust are owned by FelCor or by another FelCor Subsidiary free and clear of all Liens. Each FelCor Subsidiary that is a corporation is duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has the requisite corporate power and authority to carry on its business as now being conducted, and each FelCor Subsidiary that is a partnership, limited liability company or trust is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has the requisite partnership, limited liability company or trust power and authority to carry on its business as now being conducted. Each FelCor Subsidiary is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, could not reasonably be expected to have a FelCor Material Adverse Effect. FelCor has delivered or made available to Bristol complete and correct copies of the articles or certificate of incorporation, bylaws, partnership, joint venture and operating agreements and other organizational documents of each FelCor Subsidiary, in each case, as amended or supplemented to the date of this Agreement and currently in force and effect. 2.3. Capital Structures. (a) The authorized capital stock of FelCor consists of 110,000,000 shares of capital stock, of which 100,000,000 are shares of Common Stock, par value $0.01 per share ("FelCor Common Shares"), and 10,000,000 are FelCor Preferred Shares, 6,050,000 of which have been designated as $1.95 Series A Cumulative Convertible Preferred Stock, par value of $0.01 per share (the "FelCor Series A Preferred Shares"). As of the close of business on March 20, 1998 (the "Measurement Date"), (i) 36,591,080 FelCor Common Shares and 6,050,000 FelCor Series A Preferred Shares were issued and outstanding, (ii) 1,212,500 FelCor Common Shares and no FelCor Series A Preferred Shares were held in the treasury of FelCor, (iii) no more than 400,000 FelCor Common Shares were reserved for issuance pursuant to FelCor's 1994 Restricted Stock and Stock Option Plan (the "FelCor 1994 Option Plan"), (iv) no more than 1,400,000 FelCor Common Shares were reserved for issuance pursuant to FelCor's 1995 Restricted Stock and Stock Option Plan (the "FelCor 1995 Option Plan"), (v) no more than 1,000,000 FelCor Common Shares were reserved for issuance pursuant to FelCor's 1998 Restricted Stock and Stock Option Plan (the "FelCor 1998 Option Plan", and together with the FelCor 1995 Option Plan and the FelCor 1994 Option Plan, the "FelCor Option Plans"), (vi) since December 31, 1997, FelCor has not granted options to purchase more than 400,000 FelCor Common Shares pursuant to the FelCor Option Plans and (vii) a sufficient number of FelCor Common Shares were reserved for issuance to permit the conversion of the then-outstanding FelCor Series A Preferred Shares and the redemption of the then-outstanding units of limited partner interest ("FelCor OP Units") of the FelCor Operating Partnership. As of the Measurement Date, except as set forth in this Section 2.3, no shares of capital stock or other voting securities of FelCor were issued, reserved for issuance or outstanding and during the period from and following the Measurement Date to the Effective Time, there will be no change in the issued and outstanding FelCor Common Shares and FelCor Series A 7 16 Preferred Shares other than pursuant to (A) the exercise of options to purchase FelCor Common Shares issued pursuant to the FelCor Option Plans and referred to in this Section 2.3, (B) the exercise of conversion or redemption rights with respect to the FelCor Series A Preferred Shares and the FelCor OP Units referred to in this Section 2.3, or (C) the issuance of FelCor OP Units in connection with transactions referred to on Schedule 4.2 to the FelCor Disclosure Letter. Without limiting the generality or effect of any other provision hereof, neither the Merger nor any other transaction contemplated hereby will accelerate the vesting of or have any other effect under any options or other rights relating to the acquisition of equity or other securities of FelCor or the FelCor Operating Partnership. (b) All of the issued and outstanding shares of capital stock of FelCor are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights. Except as set forth in this Section 2.3 or in Schedule 2.3 to the FelCor Disclosure Letter, as of the date of this Agreement, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which FelCor or any FelCor Subsidiary is a party or by which such entity is bound obligating FelCor or any FelCor Subsidiary to issue, deliver, sell, repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold, repurchased, redeemed or acquired, additional shares of capital stock, voting securities or other ownership interests of FelCor or any FelCor Subsidiary (or securities convertible into or exchangeable for such ownership interests) or obligating FelCor or any FelCor Subsidiary to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking (other than to FelCor or a FelCor Subsidiary). There are no bonds, debentures, notes or other Indebtedness of FelCor having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of FelCor may vote. (c) As of the Measurement Date, the partnership interests in the FelCor Operating Partnership consist of (i) the 36,591,080 units of general partner interest and (ii) 2,897,019 FelCor OP Units. All of the units of general partner interest in FelCor Operating Partnership are owned by FelCor, free and clear of all Liens. 2.4. Authority; Noncontravention; Consents. (a) FelCor has the requisite corporate power and authority (i) to enter into this Agreement and each Transaction Document to which FelCor is a party, (ii) to perform its obligations hereunder and thereunder, and (iii) subject to the requisite approval of the Merger by the holders of a majority of the FelCor Common Shares outstanding as of the Record Date (the "FelCor Stockholder Approval"), to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by FelCor of this Agreement and each Transaction Document to which FelCor is a party and the consummation by FelCor of the transactions contemplated hereunder and thereunder have been duly authorized by the FelCor Board, the FelCor Board has recommended adoption of this Agreement by its stockholders and directed that this Agreement be submitted to a meeting of its stockholders for their consideration, and no other corporate proceedings on the part of FelCor or its stockholders are necessary to authorize any of the foregoing, other than the FelCor Stockholder Approval. This Agreement and each Transaction Document to which FelCor is a party have been duly executed and delivered by FelCor and constitute valid and binding obligations of FelCor, enforceable against FelCor in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to the enforcement of creditors' rights and by general principles of equity (the foregoing exception, the "Bankruptcy Exception"). (b) Except as set forth in Schedule 2.4 to the FelCor Disclosure Letter, the execution and delivery by FelCor of this Agreement and each Transaction Document to which FelCor is a party do not, and the consummation of the transactions contemplated hereunder and thereunder and compliance by FelCor with the provisions hereof and thereof will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of FelCor or any FelCor Subsidiary under (i) the FelCor Articles or the FelCor Bylaws or the comparable charter or organizational documents or partnership or similar agreement (as the case may be) of any FelCor Subsidiary, including without limitation the FelCor Operating Partnership, each as amended or supplemented, (ii) any loan or credit agreement, note, bond, mortgage, indenture or any other agreement evidencing, Indebtedness, reciprocal easement agreement, lease, management or other agreement, instrument 8 17 or Permit applicable to FelCor or any FelCor Subsidiary or their respective properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule or regulation (collectively, "Laws") applicable to FelCor or any FelCor Subsidiary or their respective properties or assets, other than, in the case of clause (ii) or (iii), any such conflicts, violations, defaults, rights, loss or Liens that, individually or in the aggregate, could not reasonably be expected to (A) have a FelCor Material Adverse Effect or (B) prevent or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Transaction Documents or otherwise prevent FelCor from performing its obligations hereunder or thereunder in any material respect. No consent, approval, order or authorization of, or registration, declaration or filing with, any federal, state or local government or any court, administrative or regulatory agency or commission or other governmental authority or agency, domestic or foreign (a "Governmental Entity"), is required by or with respect to FelCor or any FelCor Subsidiary, including without limitation the FelCor Operating Partnership, in connection with the execution and delivery by FelCor of this Agreement or any of the Transaction Documents to which FelCor is a party or the consummation by FelCor of the transactions contemplated hereunder or thereunder, except for (i) the filing with the Securities and Exchange Commission (the "SEC") of (A) a joint proxy statement relating to the approval by FelCor's stockholders and Bristol's stockholders of the transactions contemplated by this Agreement (as amended or supplemented from time to time, the "Proxy Statement"), (B) registration statements on appropriate forms under the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act") (as amended or supplemented from time to time, the "Registration Statements"), and (C) such reports under the Exchange Act as may be required in connection with this Agreement and the Transaction Documents and the transactions contemplated hereunder and thereunder, (ii) the filing of listing applications with the NYSE with respect to the Surviving Corporation Common Shares to be issued in the Merger, (iii) the filing of the Articles of Merger with the Department, the Certificate of Merger with the Secretary of State of the State of Delaware and other appropriate merger documents and filings with any local recording office or authorities of other states in which FelCor or Bristol is qualified to do business, and (iv) such other consents, approvals, orders, authorizations, registrations, declarations and filings (A) as are set forth in Schedule 2.4 to the FelCor Disclosure Letter or (B) which, if not obtained or made, could not reasonably be expected to prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents or otherwise prevent FelCor from performing its obligations hereunder or thereunder in any material respect or have, individually or in the aggregate, a FelCor Material Adverse Effect or a Bristol Material Adverse Effect. 2.5. SEC Documents; Financial Statements; Undisclosed Liabilities. (a) FelCor and the FelCor Subsidiaries have filed all required reports, schedules, forms, statements and other documents with the SEC from July 28, 1994 through the date hereof (the "FelCor SEC Documents"). Schedule 2.5 to the FelCor Disclosure Letter contains a complete list of all FelCor SEC Documents filed by FelCor and the FelCor Subsidiaries with the SEC since January 1, 1996 and on or prior to the date of this Agreement (the "FelCor Filed SEC Documents"). All of the FelCor SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act and, in each case, the rules and regulations promulgated thereunder applicable to such FelCor SEC Documents. None of the FelCor SEC Documents at the time of filing contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by later FelCor Filed SEC Documents. (b) The consolidated financial statements of FelCor and the FelCor Subsidiaries included in the FelCor SEC Documents (i) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) have been prepared in accordance with United States generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto included in or incorporated into any FelCor Filed SEC Documents), and (iii) present fairly, in all material respects, the consolidated financial 9 18 position of FelCor and the FelCor Subsidiaries as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal and immaterial year-end audit adjustments). Except as set forth in Schedule 2.5 to the FelCor Disclosure Letter, FelCor has no Subsidiaries which are not consolidated for accounting purposes. (c) Except for liabilities and obligations set forth in the FelCor Filed SEC Documents or in Schedule 2.5 to the FelCor Disclosure Letter or for liabilities and obligations specifically contemplated to be incurred in connection with this Agreement, neither FelCor nor any of the FelCor Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a consolidated balance sheet of FelCor or in the notes thereto and which, individually or in the aggregate, could be reasonably expected to have a FelCor Material Adverse Effect. (d) Each of the operating statements for the FelCor Hotels provided or to be provided by FelCor to Bristol or its advisors was prepared in the ordinary course of business consistent with past practice and was derived from the books and records for the applicable FelCor Hotel. 2.6. Absence of Certain Changes or Events. Except as disclosed in (i) the FelCor Filed SEC Documents or (ii) Schedule 2.6 to the FelCor Disclosure Letter, since December 31, 1997 (the "FelCor Financial Statement Date"), FelCor and the FelCor Subsidiaries have conducted their business only in the ordinary course thereof, and there has not been (a) any material adverse change, event or development in the business, financial condition or results of operations of FelCor and the FelCor Subsidiaries, taken as a whole (a "FelCor Material Adverse Change"), nor has there been any occurrence or circumstance that with the passage of time could reasonably be expected to result in a FelCor Material Adverse Change, (b) except for regular quarterly distributions (in the case of FelCor) not in excess of $0.55 per FelCor Common Share, $0.55 per FelCor OP Unit and $.4875 per FelCor Series A Preferred Share, in each case with customary record and payment dates, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of FelCor's capital stock, (c) any split, combination or reclassification of any of FelCor's capital stock, (d) any damage, destruction or loss, whether or not covered by insurance, that, individually or in the aggregate, could be reasonably expected to have a FelCor Material Adverse Effect, or (e) any change in accounting methods, principles or practices by FelCor or any FelCor Subsidiary materially affecting its assets, liabilities or business, except insofar as may have been disclosed in the FelCor Filed SEC Documents or required by a change in GAAP. There are no accrued and unpaid dividends on the FelCor Series A Preferred Shares that have not been paid on the date such payment is due. 2.7. Litigation. Except as disclosed in the FelCor Filed SEC Documents or in Schedule 2.7 to the FelCor Disclosure Letter, and other than personal injury and other routine personal injury litigation arising from the ordinary course of operations of FelCor and the FelCor Subsidiaries and which are covered by adequate insurance, there is no suit, action, proceeding or investigation pending or, to the Knowledge of FelCor, threatened against or affecting FelCor or any FelCor Subsidiary that, individually or in the aggregate, if decided adversely to FelCor, could be reasonably expected to (i) have a FelCor Material Adverse Effect or (ii) prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents or otherwise prevent FelCor from performing its obligations hereunder or thereunder in any material respect, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against FelCor or any FelCor Subsidiary which, individually or in the aggregate, could reasonably be expected to have any such effect. 2.8. Properties. (a) All of the real estate properties owned or leased by FelCor and the FelCor Subsidiaries are listed on Schedule 2.8 to the FelCor Disclosure Letter (the "FelCor Properties"). FelCor has no direct or indirect ownership interest in any real property as of the date hereof other than the FelCor Properties. (b) Except as disclosed on Schedule 2.8 to the FelCor Disclosure Letter, FelCor or one of the FelCor Subsidiaries owns fee simple title to, or a valid leasehold or joint venture interest in, each of the FelCor Properties, free and clear of all Liens, security interests or other encumbrances on title ("Encumbrances"), except for such Encumbrances which, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect. Except as disclosed on Schedule 2.8 to the FelCor Disclosure Letter, 10 19 the FelCor Properties are not subject to any easements, rights of way, covenants, conditions, restrictions or other written agreements or Laws affecting building use or occupancy, or reservations of an interest in title (collectively, "Property Restrictions") or Encumbrances, except for (i) Property Restrictions imposed or promulgated by Law or any Governmental Entity with respect to real property, including zoning regulations, that do not adversely affect the current use of the property, materially detract from the value of or materially interfere with the present use of the property, (ii) Encumbrances and Property Restrictions disclosed on existing title policies, commitments (and the documents listed as exceptions therein) or surveys (in each case copies of which title policies, commitments (and the documents listed as exceptions therein) and surveys have been delivered or made available to Bristol), (iii) leases between FelCor and DJONT Operations, L.L.C., a Delaware limited liability company and its subsidiaries, which are described on Schedule 2.8 to the FelCor Disclosure Letter, (iv) retail leases, including restaurant, gift shop and roof top leases, and (v) mechanics', carriers', supplier's, workmen's or repairmen's Liens and other Encumbrances, Property Restrictions and other limitations of any kind, if any, which, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect. (c) Except for such matters as, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect, valid policies of title insurance have been issued insuring FelCor's or the applicable FelCor Subsidiary's title to or interest in each of the FelCor Properties, and such policies are, at the date hereof, in full force and effect and no claim has been made against any such policy and FelCor has no Knowledge of any facts or circumstances which would constitute the valid basis for such a claim. (d) Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect, to the Knowledge of FelCor, (i) no certificate, Permit or license from any Governmental Entity having jurisdiction over any of the FelCor Properties or any agreement, easement or other right which is necessary to permit the lawful use and operation of the buildings and improvements on any of the FelCor Properties as currently operated or which is necessary to permit the lawful use and operation of all driveways, roads and other means of egress and ingress to and from any of the FelCor Properties (an "REA Agreement") has not been obtained and is not in full force and effect, and there is no pending threat of modification or cancellation of any of the same, nor is FelCor or any of the FelCor Subsidiaries currently in default under any REA Agreement and the FelCor Properties are in full compliance with all Permits; (ii) no written notice of any violation of any Law affecting any portion of any of the FelCor Properties has been issued by any Governmental Entity; (iii) there are no material structural defects relating to any of the FelCor Properties; (iv) there is no FelCor Property whose building systems are not in working order; and (v) there is no physical damage to any FelCor Property in excess of $500,000 for which there is no insurance in effect (other than reasonable and customary deductibles) covering the full cost of the restoration. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect, the use and occupancy of each of the FelCor Properties complies in all material respects with all applicable Laws, and FelCor has no Knowledge of any pending or threatened proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to any of the FelCor Properties, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such FelCor Properties. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect, neither FelCor nor any of the FelCor Subsidiaries has received any written notice to the effect that (x) any betterment assessments have been levied against, or any condemnation or rezoning proceedings are pending or threatened with respect to any of the FelCor Properties or (y) any zoning, building or similar Law is or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the FelCor Properties or by the continued maintenance, operation or use of the parking areas. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect, following a casualty, each of the FelCor Properties could be reconstructed and used for hotel purposes under applicable zoning laws and regulations, except that in certain circumstances such reconstruction would have to comply with the dimensional requirements of applicable zoning Laws and regulations in effect at the time of reconstruction. 11 20 (e) Except as otherwise could not be reasonably expected to have a FelCor Material Adverse Effect, there are no outstanding abatement proceedings or appeals with respect to the assessment of any FelCor Property for the purpose of real property Taxes, and there are no agreements with any Governmental Entity with respect to such assessments or Tax rates on any FelCor Property. 2.9. Environmental Matters. None of FelCor, any of the FelCor Subsidiaries or, to FelCor's Knowledge, any other Person has caused or permitted (a) the unlawful presence of any Hazardous Materials on any of the FelCor Properties or (b) any unlawful spills, releases, discharges or disposal of Hazardous Materials to have occurred or be presently occurring on or from the FelCor Properties, which presence or occurrence, individually or in the aggregate, could reasonably be expected to have a FelCor Material Adverse Effect; and, in connection with the construction on or operation and use of the FelCor Properties, FelCor and the FelCor Subsidiaries have not failed to comply in any material respect with all applicable Environmental Laws, except to the extent such failure to comply, individually or in the aggregate, could not be reasonably expected to have a FelCor Material Adverse Effect. No notice, notification, demand, request for information, citation, summons, complaint or order has been received by or is pending, or to the Knowledge of FelCor, is threatened by, any Person against FelCor or any FelCor Subsidiary, other than where such notice, notification, demand, request for information, citation, summons, complaint or order has been fully resolved, or where such resolution, individually and in the aggregate, could not be reasonably expected to result in a FelCor Material Adverse Effect. FelCor has previously delivered or made available to Bristol or its counsel true and complete copies of all internally prepared or commissioned environmental studies, assessments and reports in the possession or under the control of FelCor that relate to the FelCor Properties and/or FelCor's compliance with Environmental Laws. 2.10. Absence of Changes in Benefit Plans; ERISA Compliance. (a) Except as disclosed in the FelCor Filed SEC Documents or in Schedule 2.10 to the FelCor Disclosure Letter and except as specifically contemplated by this Agreement, since the FelCor Financial Statement Date, there has not been any adoption or amendment in any material respect by FelCor or any FelCor Subsidiary of any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of FelCor, any FelCor Subsidiary or any Person Affiliated with FelCor under Section 414(b), (c), (m) or (o) of the Code (collectively, "FelCor Benefit Plans"). (b) Except as described in the FelCor Filed SEC Documents or in Schedule 2.10 to the FelCor Disclosure Letter, (i) all FelCor Benefit Plans, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), are in compliance in all material respects with all applicable requirements of Law, including without limitation ERISA and the Code, and (ii) neither FelCor nor any FelCor Subsidiary has any material liabilities or obligations with respect to any such FelCor Benefit Plan, whether accrued, contingent or otherwise, except for any such noncompliance or liabilities that could not be reasonably expected to have a FelCor Material Adverse Effect. Except as set forth in Schedule 2.10 to the FelCor Disclosure Letter, the execution of, and performance of the transactions contemplated in, this Agreement and the Transaction Documents to which FelCor is a party will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any FelCor Benefit Plan, policy, arrangement or agreement or any trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee, officer or director of FelCor or any FelCor Subsidiary. The only severance agreements or severance policies applicable to officers or directors of FelCor or any of the FelCor Subsidiaries are the agreements and policies specifically referred to in Schedule 2.10 to the FelCor Disclosure Letter. 2.11. Taxes. (a) Each of FelCor and the FelCor Subsidiaries has timely filed all Tax returns and reports required to be filed by it and for any partnerships for which any of them is a general partner (after giving effect to any filing extension properly granted by a Governmental Entity having authority to do so) and has paid (or FelCor has paid on its behalf) all Taxes shown on such returns and reports as required to be paid by it and all such Tax returns and reports are complete and accurate in all material respects, except where the failure to file 12 21 such Tax returns or reports, the failure to pay such Taxes and the failure to be complete and accurate in all material respects could not be reasonably expected to have a FelCor Material Adverse Effect. The most recent audited financial statements contained in the FelCor Filed SEC Documents reflect in accordance with GAAP an adequate accrual for Taxes and for all deferred Taxes payable by FelCor and the FelCor Subsidiaries for all taxable periods and portions thereof through the date of such financial statements. Since the FelCor Financial Statement Date, FelCor has incurred no liability for Taxes under Sections 857(b), 860(c) or 4981 of the Code, including without limitation any Tax arising from a prohibited transaction described in Section 857(b)(6) of the Code, and neither FelCor nor any FelCor Subsidiary has incurred any liability for Taxes other than in the ordinary course of business. No event has occurred, and no condition or circumstance exists, which presents a material risk that any material Tax described in the preceding sentence will be imposed upon FelCor. To the Knowledge of FelCor, (i) no deficiencies for any Taxes have been proposed, asserted or assessed against FelCor or any of the FelCor Subsidiaries, (ii) no requests for waivers of the time to assess any such Taxes are pending, and (iii) no Tax returns of FelCor or any of the FelCor Subsidiaries are currently being audited by any applicable taxing authority or threatened with any such audit. There are no Tax Liens on any assets of FelCor or the FelCor Subsidiaries other than Liens for current Taxes not past due. All payments for withholding Taxes, unemployment insurance and other amounts required to be withheld and deposited or paid to all taxing authorities have been so deposited or paid by FelCor and the FelCor Subsidiaries. (b) FelCor (and its predecessors) (i) for all taxable years commencing with its taxable year beginning July 28, 1994 and ended December 31, 1994, and through the most recent December 31, has been subject to taxation as a real estate investment trust (a "REIT") within the meaning of Section 856 of the Code and has satisfied all requirements to qualify as a REIT for such years, (ii) has operated, and will continue to operate, in such a manner as to qualify as a REIT for the taxable year ending December 31, 1998, and (iii) to FelCor's Knowledge, no action, proceeding or investigation that could reasonably be expected to result in the termination of FelCor's status as a REIT is pending or threatened. No FelCor Subsidiary has since its formation owned any assets (including without limitation securities) that would cause FelCor to incur tax under Section 857(b)(4) of the Code. Except as set forth in Schedule 2.11 to the FelCor Disclosure Letter, each FelCor Subsidiary which is a corporation has been since its formation a qualified REIT subsidiary under Section 856(i) of the Code. (c) Neither FelCor nor any of its Subsidiaries has taken any action that would create a material risk that the Merger would not qualify as a tax-free reorganization within the meaning of Section 368(a)(1)(A) of the Code. 2.12. Brokers. No broker, investment banker, financial advisor or other Person, other than BT Wolfensohn, the fees and expenses of which will be paid by FelCor, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of FelCor or any FelCor Subsidiary. FelCor has furnished to Bristol true and complete copies of all agreements under which any such fees or expenses are payable and all indemnification and other agreements related to the engagement of BT Wolfensohn. 2.13. Compliance with Laws. Except as disclosed in the FelCor Filed SEC Documents, neither FelCor nor any of the FelCor Subsidiaries has violated or failed to comply with any Law, Permit, judgment, decree or order of any Governmental Entity applicable to its business, properties or operations, except to the extent that such violation or failure could not be reasonably expected to have a FelCor Material Adverse Effect. Each of FelCor and each FelCor Subsidiary has all licenses, franchises, permits, concessions, orders, approvals or registrations from, of or with any applicable Governmental Entity (collectively, "Permits") that are required in order to permit it to carry on its business as it is presently conducted, except those Permits which the failure to have could not, individually or in the aggregate, reasonably be expected to have a FelCor Material Adverse Effect. All such Permits are in full force and effect, except for any such Permit as to which the failure so to be in full force and effect could not, individually or in the aggregate, reasonably be expected to have a FelCor Material Adverse Effect. 2.14. Labor Matters. Schedule 2.14 to the FelCor Disclosure Letter sets forth a true and complete list as of the Measurement Date of each labor union or collective bargaining agreement to which FelCor or any of 13 22 the FelCor Subsidiaries is a party or which governs the terms of employment of any of their respective employees. There is no labor strike or work stoppage pending or, to the Knowledge of FelCor, threatened against FelCor, any FelCor Subsidiary or any of the FelCor Properties, except as could not reasonably be expected to have a FelCor Material Adverse Effect. 2.15. Compliance with Agreements. Neither FelCor nor any FelCor Subsidiary has received a written notice that FelCor or any FelCor Subsidiary is in violation of or in default under (nor to the Knowledge of FelCor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any material loan or credit agreement, note, bond, mortgage, indenture or other agreement evidencing Indebtedness, lease, Permit, concession, franchise, management, license or any other material contract, agreement, arrangement or understanding, to which it is a party or by which it or any of its properties or assets is bound, except to the extent that such violation or default, individually or in the aggregate, could not reasonably be expected to have a FelCor Material Adverse Effect or as set forth in Schedule 2.15 to the FelCor Disclosure Letter. 2.16. Opinion of Financial Advisor. FelCor has received the opinion of BT Wolfensohn, dated as of the date hereof, a copy of which has been provided to Bristol, to the effect that, as of the date hereof, the consideration to be paid by FelCor pursuant to the Merger is fair, from a financial point of view, to FelCor. 2.17. State Takeover Statutes. FelCor has taken all action necessary to exempt the transactions contemplated by this Agreement from the operation of any "fair price," "moratorium," "control share acquisition" or any other anti-takeover requirement existing under the Laws of the State of Maryland. 2.18. Proxy and Registration Statements. None of the information supplied or to be supplied by FelCor or any of its representatives for inclusion or incorporation by reference in the Proxy Statement or the Registration Statements will at the time such Proxy Statement or Registration Statements are filed with the SEC and at the time of the mailing of the Proxy Statement or Registration Statements to the stockholders of FelCor and Bristol contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation is made by FelCor with respect to statements made in the Proxy Statement or Registration Statements based on information supplied by Bristol or any of its Affiliates for inclusion therein, or with respect to information concerning Bristol or any of its Subsidiaries incorporated by reference therein. 2.19. Definition of Knowledge of FelCor. As used in this Agreement, the phrase to the "Knowledge of FelCor" (or words of similar import) means the actual knowledge of those individuals identified in Schedule 2.19 to the FelCor Disclosure Letter. III. REPRESENTATIONS AND WARRANTIES OF BRISTOL Except as set forth in the letter of even date herewith signed by the President of Bristol in his capacity as such and delivered to FelCor simultaneously with the execution and delivery of this Agreement (the "Bristol Disclosure Letter"), Bristol represents and warrants to FelCor as follows: 3.1. Organization, Standing and Power of Bristol. Bristol is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and has the requisite corporate power and authority to carry on its business as now being conducted. Bristol is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of Bristol and the Bristol Subsidiaries, taken as a whole; provided, however, that any determination of whether any state of facts, event, change or event would have a Bristol Material Adverse Effect will be made after giving pro-forma effect to the Spin-Off (a "Bristol Material Adverse Effect"). Bristol has delivered to FelCor complete and correct copies of its Fourth Amended and Restated Certificate of Incorporation and 14 23 its Amended and Restated Bylaws, in each case as amended or supplemented to the date of this Agreement and currently in force and effect (respectively, the "Bristol Certificate" and the "Bristol Bylaws"). 3.2. Bristol Subsidiaries. (a) Schedule 3.2 to the Bristol Disclosure Letter sets forth (i) the name and jurisdiction of incorporation or formation of each Subsidiary of Bristol and of each other Person in which Bristol owns, directly or indirectly, an equity or ownership interest (collectively, the "Bristol Subsidiaries"), (ii) the name of the Bristol Hotel, if any, in which any Bristol Subsidiary owns or holds an interest and the nature of that ownership or other interest, and (iii) if such Bristol Subsidiary is not wholly owned (directly or indirectly) by Bristol, (A) its authorized capital stock or other equity interests, (B) the number of issued and outstanding shares of its capital stock or other equity interests, and (C) the record owners of outstanding shares of its capital stock or other equity interests. (b) All the outstanding shares of capital stock of each Bristol Subsidiary that is a corporation have been validly issued and are fully paid and nonassessable. Except as set forth in Schedule 3.2 to the Bristol Disclosure Letter, (i) all the outstanding shares of capital stock of each Bristol Subsidiary that is a corporation are owned by Bristol or by another Bristol Subsidiary free and clear of all Liens, and (ii) all equity interests of each Bristol Subsidiary that is a partnership, joint venture, limited liability company or trust are owned by Bristol or by another Bristol Subsidiary free and clear of all Liens. Each Bristol Subsidiary that is a corporation is duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has the requisite corporate power and authority to carry on its business as now being conducted, and each Bristol Subsidiary that is a partnership, limited liability company or trust is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has the requisite partnership, limited liability company or trust power and authority to carry on its business as now being conducted. Each Bristol Subsidiary is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, could not reasonably be expected to have a Bristol Material Adverse Effect. Bristol has delivered to FelCor complete and correct copies of the articles or certificate of incorporation, bylaws, partnership, joint venture and operating agreements and other organizational documents of each Bristol Subsidiary, in each case, as amended or supplemented to the date of this Agreement and currently in force and effect. (c) Following completion of the Spin-Off Transactions and immediately prior to the Effective Time, except for interests in the Non-Corporate Bristol Hotel Subsidiaries, Bristol will not own, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, trust or other entity. 3.3. Capital Structure. (a) The authorized capital stock of Bristol consists of 200,000,000 shares of capital stock, of which 150,000,000 are Bristol Common Shares and 50,000,000 are preferred shares, par value of $0.01 per share ("Bristol Preferred Shares"). As of the Measurement Date, (i) 43,800,401 Bristol Common Shares and no Bristol Preferred Shares were issued and outstanding, (ii) no Bristol Common Shares were held in the treasury of Bristol, (iii) 1,950,000 Bristol Common Shares were reserved for issuance pursuant to the Bristol Incentive Plan, (iv) 150,000 Bristol Common Shares were reserved for issuance pursuant to the Bristol Director Plan, and (v) 1,869,941 Bristol Common Shares were issuable upon the exercise of outstanding Bristol Options. As of the Measurement Date, except as set forth in this Section 3.3, no shares of capital stock or other voting securities of Bristol were issued, reserved for issuance or outstanding, and during the period from and following the Measurement Date to the Effective Time, there will be no change in the issued and outstanding Bristol Common Shares and Bristol Preferred Shares other than pursuant to the exercise of outstanding Bristol Options referred to in this Section 3.3 or Schedule 3.3 to the Bristol Disclosure Letter. Without limiting the generality or effect of any other provision hereof, except as described in this Section 3.3 or Schedule 3.3 to the Bristol Disclosure Letter, neither the Merger nor any other transaction contemplated hereby will accelerate the vesting of or have any other effect under any options or other rights relating to the acquisition of equity or other securities of Bristol. (b) All of the issued and outstanding shares of capital stock of Bristol are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights. Except as set forth in this Section 3.3 or 15 24 in Schedule 3.3 to the Bristol Disclosure Letter, as of the date of this Agreement, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Bristol or any Bristol Subsidiary is a party or by which such entity is bound obligating Bristol or any Bristol Subsidiary to issue, deliver, sell, repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold, repurchased, redeemed or acquired, additional shares of capital stock, voting securities or other ownership interests of Bristol or of any Bristol Subsidiary (or securities convertible into or exchangeable for such ownership interests) or obligating Bristol or any Bristol Subsidiary to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking (other than to Bristol or a Bristol Subsidiary). There are no bonds, debentures, notes or other Indebtedness of Bristol having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Bristol may vote. 3.4. Authority; Noncontravention; Consents. (a) Bristol has the requisite corporate power and authority (i) to enter into this Agreement and each Transaction Document to which Bristol is a party, (ii) to perform its obligations hereunder and thereunder, and (iii) subject to the adoption of the Merger Agreement by the holders of a majority of the Bristol Common Shares outstanding as of the Record Date (the "Bristol Stockholder Approval" and, together with the FelCor Stockholder Approval, the "Stockholder Approvals"), to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by Bristol of this Agreement and each Transaction Document to which Bristol is a party and the consummation by Bristol of the transactions contemplated hereunder and thereunder have been duly authorized by the Bristol Board, the Bristol Board has recommended adoption of this Agreement by its stockholders and directed that this Agreement be submitted to a meeting of its stockholders for their consideration, and no other corporate proceedings on the part of Bristol or its stockholders are necessary to authorize any of the foregoing, other than the Bristol Stockholder Approval. This Agreement and each Transaction Document to which Bristol is a party have been duly executed and delivered by Bristol and constitute valid and binding obligations of Bristol, enforceable against Bristol in accordance with their respective terms, except as enforceability may be limited by the Bankruptcy Exception. (b) Except as set forth in Schedule 3.4 to the Bristol Disclosure Letter, the execution and delivery by Bristol of this Agreement and each Transaction Document to which Bristol is a party do not, and the consummation of the transactions contemplated hereunder and thereunder and compliance by Bristol with the provisions hereof and thereof will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of Bristol or any Bristol Subsidiary under (i) the Bristol Certificate or the Bristol Bylaws or the comparable charter or organizational documents or partnership or similar agreement (as the case may be) of any Bristol Subsidiary, each as amended or supplemented to the date of this Agreement, (ii) any loan or credit agreement, note, bond, mortgage, indenture or any other agreement evidencing, Indebtedness, reciprocal easement agreement, lease, management or other agreement, instrument or Permit applicable to Bristol or any Bristol Subsidiary or their respective properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any Laws applicable to Bristol or any Bristol Subsidiary or their respective properties or assets, other than, in the case of clause (ii) or (iii), any such conflicts, violations, defaults, rights, loss or Liens that, individually or in the aggregate, could not reasonably be expected to (A) have a Bristol Material Adverse Effect or (B) prevent or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Transaction Documents or otherwise prevent Bristol from performing its obligations hereunder or thereunder in any material respect. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to Bristol or any Bristol Subsidiary in connection with the execution and delivery by Bristol of this Agreement or any of the Transaction Documents to which Bristol is a party or the consummation by Bristol of any of the transactions contemplated hereunder or thereunder, except for (i) the filing with the SEC of (A) the Proxy Statement, (B) the Registration Statements, and (C) such reports under the Exchange Act as may be required in connection with this Agreement and the Transaction Documents and the transactions contemplated hereunder and thereunder, (ii) the filing of listing applications with the NYSE with respect to the BHR Common Shares to be distributed in the Spin-Off, (iii) the filing of 16 25 the Certificate of Merger with the Secretary of State of the State of Delaware and other appropriate merger documents and filings with any local recording office or authorities of other states in which FelCor or Bristol is qualified to do business, (iv) the filing of a premerger notification and report form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") with respect to the Spin-Off, and (v) such other consents, approvals, orders, authorizations, registrations, declarations and filings (A) as are set forth in Schedule 3.4 to the Bristol Disclosure Letter or (B) which, if not obtained or made, could not reasonably be expected to prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents or otherwise prevent Bristol from performing its obligations hereunder or thereunder in any material respect or have, individually or in the aggregate, a Bristol Material Adverse Effect or a FelCor Material Adverse Effect. (c) Each of the Bristol Corporate Subsidiaries will, at the time of its merger with and into one of the Non-Corporate Bristol Hotel Subsidiaries, be duly authorized and empowered to enter into such merger, and except as set forth on Schedule 3.4 to the Bristol Disclosure Letter, none of such mergers will conflict with or violate the terms of (i) any charter or bylaws of such Bristol Corporate Subsidiary or (ii) any material agreement, mortgage, note, material contract, deed of trust or security interest by which the Bristol Corporate Subsidiary or its assets or properties are bound. 3.5. SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Bristol and the Bristol Subsidiaries have filed all required reports, schedules, forms, statements and other documents with the SEC from December 13, 1995 through the date hereof (the "Bristol SEC Documents"). Schedule 3.5 to the Bristol Disclosure Letter contains a complete list of all Bristol SEC Documents filed by Bristol and the Bristol Subsidiaries with the SEC since January 1, 1996 and on or prior to the date of this Agreement (the "Bristol Filed SEC Documents"). All of the Bristol SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act and, in each case, the rules and regulations promulgated thereunder applicable to such Bristol SEC Documents. None of the Bristol SEC Documents at the time of filing contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by later Bristol Filed SEC Documents. (b) The consolidated financial statements of Bristol and the Bristol Subsidiaries included in the Bristol SEC Documents (i) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto included in or incorporated into any Bristol Filed SEC Documents), and (iii) present fairly, in all material respects, the consolidated financial position of Bristol and the Bristol Subsidiaries as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal and immaterial year-end audit adjustments). Bristol has no Subsidiaries which are not consolidated for accounting purposes. (c) Except for liabilities and obligations set forth in (i) the Bristol Filed SEC Documents, (ii) the draft copy of Bristol's Annual Report on Form 10-K for the year ended December 31, 1997 provided to FelCor on the date of this Agreement, or (iii) in Schedule 3.5 to the Bristol Disclosure Letter or for liabilities and obligations specifically contemplated to be incurred in connection with this Agreement, neither Bristol nor any Bristol Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a consolidated balance sheet of Bristol or in the notes thereto and which, individually or in the aggregate, could be reasonably expected to have a Bristol Material Adverse Effect. (d) Each of the operating statements for the Bristol Hotels provided or to be provided by Bristol to FelCor or its advisors was prepared in the ordinary course of business consistent with past practice and was derived from the books and records for the applicable Bristol Hotel. 17 26 3.6. Absence of Certain Changes or Events. Except as disclosed in (i) the Bristol Filed SEC Documents, (ii) Schedule 3.6 to the Bristol Disclosure Letter, or (iii) the draft copy of Bristol's Annual Report on Form 10-K for the year ended December 31, 1997 provided to FelCor on the date of this Agreement, since December 31, 1997 (the "Bristol Financial Statement Date"), Bristol and the Bristol Subsidiaries have conducted their business only in the ordinary course thereof and there has not been (a) any material adverse change, event or development in the business, financial condition or results of operations of Bristol and the Bristol Subsidiaries, taken as a whole (a "Bristol Material Adverse Change"), nor has there been any occurrence or circumstance that with the passage of time could reasonably be expected to result in a Bristol Material Adverse Change, (b) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of Bristol's capital stock, (c) any split, combination or reclassification of any of Bristol's capital stock, (d) any damage, destruction or loss, whether or not covered by insurance, that, individually or in the aggregate, could be reasonably expected to have a Bristol Material Adverse Effect, or (e) any change in accounting methods, principles or practices by Bristol or any Bristol Subsidiary materially affecting its assets, liabilities or business, except insofar as may have been disclosed in the Bristol Filed SEC Documents or required by a change in GAAP. 3.7. Litigation. Except as disclosed in (i) the Bristol Filed SEC Documents, (ii) the draft copy of Bristol's Annual Report on Form 10-K for the year ended December 31, 1997 provided to FelCor on the date of this Agreement, or (iii) in Schedule 3.7 to the Bristol Disclosure Letter, and other than personal injury and other routine personal injury litigation arising from the ordinary course of operations of Bristol and the Bristol Subsidiaries and which are covered by adequate insurance, there is no suit, action, proceeding or investigation pending or, to the Knowledge of Bristol, threatened against or affecting Bristol or any Bristol Subsidiary that, individually or in the aggregate, if determined adversely to Bristol, could be reasonably expected to (i) have a Bristol Material Adverse Effect or (ii) prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents or otherwise prevent Bristol from performing its obligations hereunder or thereunder in any material respect, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against Bristol or any Bristol Subsidiary which, individually or in the aggregate, could reasonably be expected to have any such effect. 3.8. Properties. (a) All of the real estate properties owned or leased by Bristol and the Bristol Subsidiaries are listed on Schedule 3.8 to the Bristol Disclosure Letter (the "Bristol Properties"). Bristol has no direct or indirect ownership interest in any real property as of the date hereof other than the Bristol Properties. (b) Except as disclosed on Schedule 3.8 to the Bristol Disclosure Letter, Bristol or one of the Bristol Subsidiaries owns fee simple title to, or a valid leasehold interest or joint venture interest in, each of the Bristol Properties, free and clear of all Encumbrances, except for such Encumbrances which, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect. Except as disclosed on Schedule 3.8 to the Bristol Disclosure Letter, the Bristol Properties are not subject to any Encumbrances or Property Restrictions, except for (i) Property Restrictions imposed or promulgated by Law or any Governmental Entity with respect to real property, including zoning regulations, that do not adversely affect the current use of the property, materially detract from the value of or materially interfere with the present use of the property, (ii) Encumbrances and Property Restrictions disclosed on existing title policies, commitments (and the documents listed as exceptions therein) or surveys (in each case copies of which title policies, commitments (and the documents listed as exceptions therein) and surveys have been delivered or made available to FelCor), (iii) retail leases, including restaurant, gift shop and roof top leases, and (iv) mechanics', carriers', supplier's, workmen's or repairmen's Liens and other Encumbrances, Property Restrictions and other limitations of any kind, if any, which, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect. (c) Except for such matters as, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect, valid policies of title insurance have been issued insuring Bristol's or the applicable Bristol Subsidiary's title to or interest in each of the Bristol Properties, and such policies are, at 18 27 the date hereof, in full force and effect and no claim has been made against any such policy and Bristol has no Knowledge of any facts or circumstances which would constitute the valid basis for such a claim. (d) Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect, to the Knowledge of Bristol, (i) no REA Agreement has not been obtained and is not in full force and effect, and there is no pending threat of modification or cancellation of any of the same, nor is Bristol or any of the Bristol Subsidiaries currently in default under any REA Agreement and the Bristol Properties are in full compliance with all Permits; (ii) no written notice of any violation of any Law affecting any portion of any of the Bristol Properties has been issued by any Governmental Entity; (iii) there are no material structural defects relating to any of the Bristol Properties; (iv) except as set forth on Schedule 3.8 to the Bristol Disclosure Letter, there is no Bristol Property whose building systems are not in working order; and (v) there is no physical damage to any Bristol Property in excess of $500,000 for which there is no insurance in effect (other than reasonable and customary deductibles) covering the full cost of the restoration. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect, the use and occupancy of each of the Bristol Properties complies in all material respects with all applicable Laws, and Bristol has no Knowledge of any pending or threatened proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to any of the Bristol Properties, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such Bristol Properties. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect, neither Bristol nor any of the Bristol Subsidiaries has received any written notice to the effect that (x) any betterment assessments have been levied against, or any condemnation or rezoning proceedings are pending or threatened with respect to any of the Bristol Properties or (y) any zoning, building or similar Law is or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Bristol Properties or by the continued maintenance, operation or use of the parking areas. Except for such of the following as, individually and in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect, following a casualty, each of the Bristol Properties could be reconstructed and used for hotel purposes under applicable zoning laws and regulations, except that in certain circumstances such reconstruction would have to comply with the dimensional requirements of applicable zoning Laws and regulations in effect at the time of reconstruction. (e) Except as otherwise could not be reasonably expected to have a Bristol Material Adverse Effect, there are no outstanding abatement proceedings or appeals with respect to the assessment of any Bristol Property for the purpose of real property Taxes, and there are no agreements with any Governmental Entity with respect to such assessments or Tax rates on any Bristol Property. 3.9. Environmental Matters. Except as disclosed in Schedule 3.9 to the Bristol Disclosure Letter, none of Bristol, any of the Bristol Subsidiaries or, to Bristol's Knowledge, any other Person has caused or permitted (a) the unlawful presence of any Hazardous Materials on any of the Bristol Properties or (b) any unlawful spills, releases, discharges or disposal of Hazardous Materials to have occurred or be presently occurring on or from the Bristol Properties, which presence or occurrence could, individually or in the aggregate, be reasonably expected to have a Bristol Material Adverse Effect; and, in connection with the construction on or operation and use of the Bristol Properties, Bristol and the Bristol Subsidiaries have not failed to comply in any material respect with all applicable Environmental Laws, except to the extent such failure to comply, individually or in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect. No notice, notification, demand, request for information, citation, summons, complaint or order has been received by or is pending, or to the Knowledge of Bristol, is threatened by, any Person against Bristol or any Bristol Subsidiary, other than where such notice, notification, demand, request for information, citation, summons, complaint or order has been fully resolved, or where such resolution, individually and in the aggregate, could not be reasonably expected to result in a Bristol Material Adverse Effect. Bristol has previously delivered or made available to FelCor or its counsel true and complete copies of all internally prepared or commissioned environmental studies, assessments and reports in the possession or under the control of Bristol that relate to the Bristol Properties and/or Bristol's compliance with Environmental Laws. 19 28 3.10. Absence of Changes in Benefit Plans; ERISA Compliance. (a) Except as disclosed in the Bristol Filed SEC Documents or in Schedule 3.10 to the Bristol Disclosure Letter and except as specifically contemplated by this Agreement, since the Bristol Financial Statement Date, there has not been any adoption or amendment in any material respect by Bristol or any Bristol Subsidiary of any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of Bristol, any Bristol Subsidiary or any Person Affiliated with Bristol under Section 414(b), (c), (m) or (o) of the Code (collectively, "Bristol Benefit Plans"). (b) Except as described in the Bristol Filed SEC Documents or in Schedule 3.10 to the Bristol Disclosure Letter, (i) all Bristol Benefit Plans, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of the ERISA, are in compliance in all material respects with all applicable requirements of Law, including without limitation ERISA and the Code, and (ii) neither Bristol nor any Bristol Subsidiary has any material liabilities or obligations with respect to any such Bristol Benefit Plan, whether accrued, contingent or otherwise, except for any such noncompliance or liabilities that could not be reasonably expected to have a Bristol Material Adverse Effect. Except as set forth in Schedule 3.10 to the Bristol Disclosure Letter, the execution of, and performance of the transactions contemplated in, this Agreement and the Transaction Documents to which Bristol is a party will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Bristol Benefit Plan, policy, arrangement or agreement or any trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee, officer or director of Bristol or any Bristol Subsidiary. The only severance agreements or severance policies applicable to officers or directors of Bristol or any of the Bristol Subsidiaries are the agreements and policies specifically referred to in Schedule 3.10 to the Bristol Disclosure Letter. 3.11. Taxes. (a) Each of Bristol and the Bristol Subsidiaries has timely filed all Tax returns and reports required to be filed by it and for any partnerships for which any of them is a general partner (after giving effect to any filing extension properly granted by a Governmental Entity having authority to do so) and has paid (or Bristol has paid on its behalf) all Taxes shown on such returns and reports as required to be paid by it and all such Tax returns and reports are complete and accurate in all material respects, except where the failure to file such Tax returns or reports, the failure to pay such Taxes and the failure to be complete and accurate in all material respects could not be reasonably expected to have a Bristol Material Adverse Effect. The most recent audited financial statements contained in the Bristol Filed SEC Documents reflect in accordance with GAAP an adequate accrual for Taxes and for all deferred Taxes payable by Bristol and the Bristol Subsidiaries for all taxable periods and portions thereof through the date of such financial statements. To the Knowledge of Bristol, (i) no deficiencies for any Taxes have been proposed, asserted or assessed against Bristol or any of the Bristol Subsidiaries, (ii) no requests for waivers of the time to assess any such Taxes are pending, and (iii) no Tax returns of Bristol or any of the Bristol Subsidiaries are currently being audited by any applicable taxing authority or threatened with any such audit. There are no Tax Liens on any assets of Bristol or the Bristol Subsidiaries other than Liens for current Taxes not past due. All payments for withholding Taxes, unemployment insurance and other amounts required to be withheld and deposited or paid to all taxing authorities have been so deposited or paid by Bristol and the Bristol Subsidiaries. (b) Bristol (i) has not made or entered into, and does not own any asset subject to, a consent filed pursuant to Section 341(f) of the Code or a "safe harbor lease" subject to Section 168(f)(8) of the Internal Revenue Code of 1954, as amended before the Tax Reform Act of 1984, (ii) is not required to include in income any amount for an adjustment pursuant to Section 481 of the Code, and (iii) is neither a party to nor obligated under any agreement or other arrangement providing for the payment of any amount that would be an "excess parachute payment" under Section 280G of the Code. (c) Neither Bristol nor any of its Subsidiaries has taken any action that would create a material risk that the Merger would not qualify as a tax-free reorganization within the meaning of Section 368(a)(1)(A) of the Code. 20 29 (d) Assuming that the Spin-Off had been completed prior to the date hereof and the Effective Time occurred on the date hereof, Bristol's E&P (excluding E&P adjustments relating to the distribution of BHR stock, the taxable gain to Bristol upon such distribution and the resulting income tax liability with respect to such gain) would not be materially in excess of $125.0 million. 3.12. No Payments to Employees, Officers or Directors. Schedule 3.12 to the Bristol Disclosure Letter sets forth a true and complete list of all cash and non-cash payments which will become payable to each employee, officer or director of Bristol or any Bristol Subsidiary as a result of the Merger, other than the distribution of BHR Common Shares in the Spin-Off. Except as described in Schedule 3.12 to the Bristol Disclosure Letter, or as otherwise provided for in this Agreement, there is no employment or severance contract, or other agreement requiring payments, cancellation of indebtedness or other obligation to be made on a change of control or otherwise as a result of the consummation of any of the transactions contemplated by this Agreement and the Transaction Documents, with respect to any employee, officer or director of Bristol or any Bristol Subsidiary. 3.13. Brokers. No broker, investment banker, financial advisor or other Person, other than Merrill, Lynch, Pierce, Fenner & Smith Incorporated ("Merrill"), the fees and expenses of which will be paid by Bristol, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Bristol or any Bristol Subsidiary. Bristol has furnished to FelCor true and complete copies of all agreements under which any such fees or expenses are payable and all indemnification and other agreements related to the engagement of Merrill. 3.14. Compliance with Laws. Except as disclosed in the Bristol Filed SEC Documents, neither Bristol nor any of the Bristol Subsidiaries has violated or failed to comply with any Law, Permit, judgment, decree or order of any Governmental Entity applicable to its business, properties or operations, except to the extent that such violation or failure could not be reasonably expected to have a Bristol Material Adverse Effect. Each of Bristol and each Bristol Subsidiary has all Permits that are required in order to permit it to carry on its business as it is presently conducted, except those Permits which the failure to have could not, individually or in the aggregate, reasonably be expected to have a Bristol Material Adverse Effect. All such Permits are in full force and effect, except for any such Permit as to which the failure so to be in full force and effect could not, individually or in the aggregate, reasonably be expected to have a Bristol Material Adverse Effect. 3.15. Labor Matters. Schedule 3.15 to the Bristol Disclosure Letter sets forth a true and complete list as of the Measurement Date of each labor union or collective bargaining agreement to which Bristol or any of the Bristol Subsidiaries is a party or which governs the terms of employment of any of their respective employees. There is no labor strike or work stoppage pending or, to the Knowledge of Bristol, threatened against Bristol, any Bristol Subsidiary or any of the Bristol Properties, except as could not reasonably be expected to have a Bristol Material Adverse Effect. 3.16. Compliance with Agreements. Neither Bristol nor any Bristol Subsidiary has received a written notice that Bristol or any Bristol Subsidiary is in violation of or in default under (nor to the Knowledge of Bristol does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any material loan or credit agreement, note, bond, mortgage, indenture or other agreement evidencing Indebtedness, lease, Permit, concession, franchise, management, license or any other material contract, agreement, arrangement or understanding, to which it is a party or by which it or any of its properties or assets is bound, except to the extent such violation or default, individually or in the aggregate, could not be reasonably expected to have a Bristol Material Adverse Effect or as set forth in Schedule 3.16 to the Bristol Disclosure Letter. 3.17. Opinion of Financial Advisor. Bristol has received the opinion of Merrill, dated the date hereof, a copy of which has been provided to FelCor, to the effect that, as of the date hereof, the Exchange Ratio is fair, from a financial point of view, to the holders of Bristol Common Shares. 21 30 3.18. State Takeover Statutes. Bristol has taken all action necessary to exempt the transactions contemplated by this Agreement from the operation of any "fair price," "moratorium," "control share acquisition" or any other anti-takeover requirement existing under the Laws of the State of Delaware. 3.19. Proxy and Registration Statements. None of the information supplied or to be supplied by Bristol or any of its representatives for inclusion or incorporation by reference in the Proxy Statement or the Registration Statements will at the time such Proxy Statement or Registration Statements are filed with the SEC and at the time of the mailing of the Proxy Statement or Registration Statements to the stockholders of FelCor and Bristol contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of its circumstances under which they were made, not misleading. No representation is made by Bristol with respect to statements made in the Proxy Statement or Registration Statements based on information supplied by FelCor or any of its Affiliates for inclusion therein, or with respect to information concerning FelCor or any of its Subsidiaries incorporated by reference therein. 3.20. Definition of Knowledge of Bristol. As used in this Agreement, the phrase to the "Knowledge of Bristol" (or words of similar import) means the actual knowledge of those individuals identified in Schedule 3.20 to the Bristol Disclosure Letter. IV. COVENANTS 4.1. Acquisition Proposals. (a) Prior to the Effective Time, each of FelCor and Bristol agrees that: (i) Neither it nor any of its Subsidiaries will (A) initiate or solicit, directly or indirectly by furnishing any information or the making of any proposal or offer (including without limitation any proposal or offer to its stockholders), any Acquisition Proposal or (B) engage in any negotiations concerning, provide any confidential information in connection with or have any discussions with any Person relating to an Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any proposal or offer from any Person (other than the transactions contemplated by this Agreement or described in Schedule 4.1 to the FelCor Disclosure Letter or Schedule 4.1 to the Bristol Disclosure Letter) relating to a merger, acquisition, tender offer, exchange offer, business combination, consolidation, sale of assets or similar transaction involving more than 10% of the equity securities of Bristol or FelCor or a substantial portion of the assets or equity securities of Bristol and the Bristol Subsidiaries or FelCor and the FelCor Subsidiaries (provided that, as to any sale or exchange of assets, the transaction involves a total value including assumed debt in excess of $100 million); (ii) It will cause each of its officers, directors, employees, financial advisors, attorneys, accountants and other representatives retained by it or any of its Subsidiaries not to engage in any of the activities described in Section 4.1(a)(i); (iii) It will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will take the necessary steps to inform the Persons referred to in Section 4.1(a)(ii) of the obligations undertaken in this Section 4.1; and (iv) It will notify the other immediately if it receives any such proposals or offers relating to an Acquisition Proposal, or any requests for such information, which notice will describe the terms of any such proposal, offer or request in reasonable detail, or if any such negotiations or discussions relating to an Acquisition Proposal are sought to be initiated or continued with it. (b) Except as otherwise provided in Section 4.1(c), and in accordance with Section 7.2, if applicable, neither the Bristol Board, the FelCor Board nor any committee thereof may (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party the approval or recommendation by the Bristol Board or the FelCor Board or such committee thereof of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) authorize or otherwise cause Bristol or FelCor, as applicable, to enter into any letter of intent, agreement 22 31 in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal (each, an "Acquisition Agreement"). (c) Notwithstanding the foregoing, if, in response to an unsolicited Acquisition Proposal, the Bristol Board, the FelCor Board or a committee thereof, as applicable, determines after consultation with its financial advisors that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to such company's stockholders than the Merger and the other transactions contemplated by this Agreement (taking into account the nature of the proposed transaction, the nature and amount of the consideration, the likelihood of completion and any other factors deemed appropriate by such Board) (a "Superior Proposal"), such Board or committee may, or cause its representatives to, engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any Person relating to the Superior Proposal or otherwise facilitate any effort or attempt to make or implement the Superior Proposal; provided further, however, that, upon either party's engaging in such negotiations or discussions, providing such information or otherwise facilitating any effort or attempt to make or implement a Superior Proposal, such party gives notice to the other party of its engagement in such activities (a "Superior Proposal Transaction Notice"). Prior to furnishing confidential information to, or entering into discussions or negotiations with, any other Persons with respect to a Superior Proposal, such party must obtain from such other Persons an executed confidentiality agreement with terms no more favorable, taken as a whole, to such Person than those contained in the applicable Confidentiality Agreements, but which confidentiality agreement may not include any provision calling for an exclusive right to negotiate with such Persons, and such party must advise the other party of the nature of such confidential information delivered to such other Person reasonably promptly following its delivery to the requesting party. With respect to any Superior Proposal, the Bristol Board or the FelCor Board, as applicable, may, subject to compliance with Section 7.2, on or after the fifth Trading Day following its giving of a Superior Proposal Transaction Notice, (i) withdraw or modify its approval or recommendation of the Merger or this Agreement, (ii) approve or recommend such Superior Proposal, (iii) authorize or otherwise cause the company of which it is the Board to enter into an Acquisition Agreement, and/or (iv) terminate this Agreement pursuant to Section 7.1(h) or Section 7.1(i), as applicable. (d) Nothing contained in this Section 4.1 will prohibit Bristol or FelCor from taking and disclosing to its stockholders a position contemplated by Rule 14e-1 under the Exchange Act or from making any disclosure to its stockholders if such Board determines that such disclosure is necessary in order to comply with such Board's fiduciary duties under applicable Law; provided, however, that neither Bristol nor FelCor nor either of their respective Boards nor any committee thereof may, except in accordance with Section 4.1(c), withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal. 4.2. Conduct of FelCor's and Bristol's Business Pending Merger. Prior to the Effective Time, except as (i) contemplated by this Agreement, (ii) necessary to accomplish the Spin-Off Transactions, (iii) set forth on Schedule 4.2 to the Bristol Disclosure Letter or Schedule 4.2 to the FelCor Disclosure Letter, or (iv) consented to in writing by a majority of the individuals identified on Schedule 4.2 or if either such individual is unable to serve in such capacity, a replacement identified by the party that designated such individual (the "Joint Operating Committee"), each of FelCor and Bristol will, and will cause each of their respective Subsidiaries to: (a) Conduct its business only in the usual, regular and ordinary course and in substantially the same manner as heretofore; (b) Use reasonable efforts to preserve intact its business organization and goodwill and keep available the services of its officers and key employees; (c) Confer on a regular basis with one or more representatives of the other party to report operational matters of materiality and, subject to Section 4.1, any proposals to engage in material transactions; 23 32 (d) Promptly notify the other party of any material emergency or other material change in its business, financial condition, results of operations or prospects; (e) Promptly deliver to the other party true and correct copies of any report, statement or schedule filed with the SEC by such party subsequent to the date of this Agreement; (f) Maintain its books and records in accordance with GAAP, consistently applied, and not change in any material manner any of its methods, principles or practices of accounting in effect at the applicable Financial Statement Date, except as may be required by applicable Law or GAAP; (g) Duly and timely file all reports, Tax returns and other documents required to be filed with federal, state, local and other authorities, subject to extensions permitted by Law, provided such extensions do not adversely affect FelCor's status as a qualified REIT under the Code; (h) Not make or rescind any express or deemed election relative to Taxes (unless required by Law or necessary to preserve FelCor's status as a REIT or the status of any Subsidiary as a partnership for federal income Tax purposes or as a qualified REIT subsidiary under Section 856(i) of the Code, as the case may be); (i) Not (i) acquire (other than pursuant to an existing agreement), sell, lease, enter into any option to acquire, sell or lease, or exercise an option or contract to acquire, sell or lease, additional real property, (ii) make any loans, or advances to any other Person, except loans or advances to employees in the ordinary course of business and except as contemplated by Section 5.14, (iii) incur additional Indebtedness for borrowed money other than under existing agreements or as permitted or contemplated by this Agreement, (iv) encumber or subject to any Lien any of its properties or assets, or (v) enter into any new agreement or commitment, or amend any existing agreement or commitment, to improve, develop or construct real estate projects or to make any other capital expenditure after the date of this Agreement other than (A) with respect to FelCor, expenditures that are within FelCor's 1998 budget attached to Schedule 4.2 to the FelCor Disclosure Letter and (B) with respect to Bristol, (1) in respect of transactions, projects or other capital expenditures relating to the improvement, development or construction of real estate projects, expenditures that are within Bristol's 1998 budget attached to Schedule 4.2 to the Bristol Disclosure Letter as to which Bristol or any of its Subsidiaries have either commenced the expenditure of money to third parties or entered into agreements or obligations to do so, (2) in respect of transactions, projects or other capital expenditures approved by the Joint Operating Committee, which approval may not be unreasonably withheld or delayed, and (3) amounts not otherwise covered by subclauses (1) or (2) involving capital expenditures for purposes other than the improvement, development or construction of real estate projects of, in the aggregate, less than $1.0 million; (j) Use reasonable efforts to enter into agreements to sell assets of Bristol and the Bristol Subsidiaries as agreed from time to time by the Joint Operating Committee on terms authorized by it, and to permit FelCor and its financial and legal advisors a reasonable opportunity to participate in such process; provided however, that (i) such agreements may provide at Bristol's election that any such sale or disposition will not be consummated until the Effective Time and that Bristol may terminate such agreement if this Agreement is terminated for any reason and (ii) in no event will any party bind Bristol or its Subsidiaries to any liability or obligation with respect to a sale of any assets in respect of any transaction not approved by the Joint Operating Committee in the sole discretion of the members thereof; (k) Except as contemplated by Section 1.5, not amend its articles or certificate of incorporation, bylaws or comparable charter or organizational document or the certificate or articles of incorporation, bylaws, partnership agreement, operating agreement, joint venture agreement or comparable charter or organizational document of any FelCor Subsidiary or Bristol Hotel Subsidiary without the other party's prior written consent, which consent will not be unreasonably withheld or delayed; (l) Not amend any material terms of any contract of such party in a manner adverse to the Surviving Corporation in order to obtain the consent of the other party or parties to such contract to any of the transactions contemplated by this Agreement or the Spin-Off Agreement without obtaining the 24 33 prior written consent of the other party hereto, which consent may not be unreasonably withheld or delayed; (m) Make no change in the number of shares of capital stock, membership interests or units of limited partnership interest issued and outstanding, other than pursuant to (i) the exercise of options disclosed in the FelCor Filed SEC Documents, the Bristol Filed SEC Documents, Schedule 3.3 to the Bristol Disclosure Letter or Schedule 2.3 to the FelCor Disclosure Letter, (ii) the conversion of FelCor Series A Preferred Shares pursuant to the terms of the FelCor Series A Preferred Shares, and (iii) the redemption of FelCor OP Units for FelCor Common Shares pursuant to the terms of the FelCor OP Units; (n) Grant no options or other right or commitment relating to its capital stock, membership interests or units of limited partnership interest or any security convertible into its capital stock, membership interests or units of limited partnership interest, or any security the value of which is measured by shares of capital stock, or any security subordinated to the claim of its general creditors; (o) Not (i) authorize, declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or change such party's normal record date for the payment of any permitted dividend or distribution, other than as provided in Schedule 4.2 to the FelCor Disclosure Letter or (ii) directly or indirectly redeem, purchase or otherwise acquire any shares of capital stock, membership interests or units of partnership interest or any option, warrant or right to acquire, or security convertible into, shares of capital stock, membership interests or units of partnership interest, other than pursuant to (A) the conversion of FelCor Series A Preferred Shares pursuant to the terms of the FelCor Series A Preferred Shares and (B) the redemption of FelCor OP Units for FelCor Common Shares pursuant to the terms of the FelCor OP Units; (p) Not adopt any new employee benefit plan or amend any existing plans or rights, except for changes which are required by Law or changes which are not more favorable to participants than provisions presently in effect; (q) Not settle any stockholder derivative or class action claims arising out of or in connection with any of the transactions contemplated by this Agreement and the Transaction Documents; (r) Not change the ownership of any of its Subsidiaries except pursuant to the Spin-Off Agreement; (s) Not amend any of the Transaction Documents in any material respect; (t) Not take any action that would cause the Merger not to qualify as a tax-free reorganization under Section 368(a)(1)(A) of the Code; (u) Promptly notify the other party of any action, suit, proceeding, claim or audit pending against or with respect to such party or its Subsidiaries in respect of any Taxes where there is a reasonable possibility of a determination or decision which would materially increase the Tax liabilities of such party, and not change any of the Tax elections, accounting methods, conventions or principals which relate to such party or its Subsidiaries that could reasonably be expected to increase such party's liabilities; (v) Continue to maintain and repair all of its assets and properties in a manner consistent with past practices; and (w) Maintain all licenses and Permits as may be required by any Governmental Entity administering Laws regulating the sale of alcoholic beverages at the Bristol Hotels or the FelCor Hotels and take whatever actions are necessary to maintain the continuity of service of alcoholic beverage at the Bristol Hotels or the FelCor Hotels. 4.3. Other Actions. Each of FelCor and Bristol will not, and will use commercially reasonable efforts to cause its respective Subsidiaries not to, take any action that would result in (i) any of the representations and warranties of such party (without giving effect to any "Knowledge" qualification) set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties (without 25 34 giving effect to any "Knowledge" qualification) that are not so qualified becoming untrue in any material respect, or (iii) except as contemplated by Section 4.1, any of the conditions to the Merger set forth in Article VI not being satisfied. V. ADDITIONAL COVENANTS 5.1. Preparation of the Registration Statements and the Proxy Statement; FelCor Stockholders Meeting and Bristol Stockholders Meeting. (a) As soon as practicable following the date of this Agreement, FelCor and Bristol will prepare and file with the SEC a preliminary Proxy Statement in form and substance satisfactory to each of Bristol and FelCor and such Registration Statements as may be required to effect the Merger and the Spin-Off. To the extent practicable, the parties will utilize one document for transmittal to their respective stockholders to meet applicable legal requirements. Each of FelCor and Bristol will use its reasonable best efforts to (i) prepare and provide the other party as promptly as practicable the financial information required to be disclosed in the Proxy Statement, (ii) cause Merrill and BT Wolfensohn, as appropriate, to bring-down the opinions referred to in Section 2.16 and Section 3.17 to the date of the Proxy Statement, (iii) respond to any comments of the SEC, and (iv) have the Registration Statements declared effective under the Securities Act and the rules and regulations promulgated thereunder as promptly as practicable after such filing and to keep the Registration Statements effective as long as is necessary to consummate the Merger and the Spin-Off. Each of FelCor and Bristol will use its reasonable best efforts to cause the Proxy Statement to be mailed to FelCor's stockholders and Bristol's stockholders, respectively, as promptly as practicable after the Registration Statements are declared effective under the Securities Act. Each party agrees to date its Proxy Statement as of the same date, which will be the approximate date of mailing to the stockholders of the respective parties. Each party will notify the other promptly of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Registration Statements or the Proxy Statement or for additional information and will supply the other with copies of all correspondence between such party or any of its representatives and the SEC with respect to the Registration Statements or the Proxy Statement. The Registration Statements and the Proxy Statement will comply in all material respects with all applicable requirements of Law. Whenever any event occurs which is required to be set forth in an amendment or supplement to the Registration Statements or the Proxy Statement, Bristol or FelCor, as the case may be, will promptly inform the other of such occurrences and cooperate in filing with the SEC and/or mailing to the stockholders of Bristol and the stockholders of FelCor such amendment or supplement to the Registration Statements or the Proxy Statement. (b) Bristol will, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Bristol Stockholders Meeting") for the purpose of obtaining the Bristol Stockholder Approval. Bristol will, through the Bristol Board, recommend to its stockholders adoption of this Agreement; provided that, notwithstanding any other provision of this Agreement, prior to the Bristol Stockholders Meeting, such recommendation may be withdrawn, modified or amended to the extent that, as a result of a Superior Proposal, the Bristol Board determines that such withdrawal, modification or amendment is appropriate. (c) FelCor will, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "FelCor Stockholders Meeting") for the purpose of obtaining the FelCor Stockholder Approval. FelCor will, through the FelCor Board, recommend to its stockholders adoption of this Agreement and the transactions contemplated by this Agreement; provided that, notwithstanding any other provision of this Agreement, prior to the FelCor Stockholders Meeting, such recommendation may be withdrawn, modified or amended to the extent that, as a result of a Superior Proposal, the FelCor Board determines that such withdrawal, modification or amendment is appropriate. (d) Bristol and FelCor will use their respective best efforts to hold their respective stockholder meetings on the same day. (e) If on the date for the Bristol Stockholders Meeting and FelCor Stockholders Meeting established pursuant to Section 5.1(d), either Bristol or FelCor has not received a sufficient number of proxies to approve the adoption of this Agreement, then both parties will adjourn their respective stockholders meetings until the 26 35 first to occur of (i) the date ten calendar days after the originally scheduled date of the stockholders meetings or (ii) the date on which the requisite number of proxies approving the Merger has been obtained. 5.2. Access to Information; Confidentiality. Subject to the requirements of confidentiality agreements with third parties, each of FelCor and Bristol will, and will cause each of its Subsidiaries to, afford to the other party and to the officers, employees, accountants, counsel, financial advisors and other representatives of such other party, reasonable access during normal business hours prior to the Effective Time to all their respective properties, books, contracts, commitments, personnel and records and, during such period, each of FelCor and Bristol will, and will cause each of its Subsidiaries to, furnish promptly to the other party (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities Laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Each of FelCor and Bristol will, and will cause its Subsidiaries to, and will use commercially reasonable efforts to cause its officers, employees, accountants, counsel, financial advisors and other representatives and Affiliates to, hold any nonpublic information in confidence to the extent required by, and in accordance with, and will comply with the provisions of the letter agreements, dated as of January 14, 1998 and February 27, 1998, between FelCor and Bristol (the "Confidentiality Agreements"). 5.3. Consents; Notifications; Other Actions. (a) Subject to the terms and conditions herein provided, FelCor and Bristol will (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, Permits or authorizations are required to be obtained prior to the Effective Time from, any Governmental Entity and any third parties in connection with the execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby and (B) timely making all such filings and timely seeking all such consents, approvals, Permits and authorizations, (ii) use all reasonable best efforts to obtain in writing any consents required from third parties to effectuate the Merger, such consents to be in such form and substance as may be reasonably satisfactory to FelCor and Bristol, and in connection therewith, not pay any consent fees unless approved by FelCor, and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement and the Transaction Documents. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purpose of this Agreement, the proper officers and directors of FelCor and Bristol will take all such necessary action. (b) Each of Bristol and FelCor will give prompt notice to the other (i) if any representation or warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any material respect or (ii) of the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification will affect the representations, warranties or covenants of the parties or the conditions to the obligations of the parties under this Agreement. (c) Bristol will use all reasonable efforts to cause each of the directors and officers of Bristol and the Bristol Subsidiaries (other than BHMC, BHR and their respective Subsidiaries) to resign as a director or officer of each applicable company effective as of the Effective Time. 5.4. Tax Treatment. Each of Bristol and FelCor will use its reasonable best efforts to cause the Merger to qualify as a tax-free reorganization under the provisions of Section 368(a)(1)(A) of the Code and to obtain the opinions of counsel referred to in Sections 6.1(e), 6.1(f) and 6.2(f). 5.5. Public Announcements. Bristol and FelCor will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other written public statements with respect to the transactions contemplated by this Agreement and the Transaction Documents, including the Merger and the Spin-Off, and will not issue any such press release or make any such written public statement prior to such consultation, except to the extent it may be advised by counsel that it is required by applicable Law or legal process. The parties agree that the initial press release to be issued with respect to the 27 36 transactions contemplated by this Agreement will be in the form agreed to by the parties hereto prior to the execution of this Agreement. 5.6. Listing. Prior to the Effective Time, (a) FelCor will use its best efforts to have the NYSE approve for listing, upon official notice of issuance, the Surviving Corporation Common Shares to be issued in the Merger and (b) Bristol will cause BHR to use reasonable efforts to have the NYSE, the NASDAQ or another national securities exchange approve for listing, upon official notice of issuance, the BHR Common Shares to be distributed in the Spin-Off. 5.7. Transfer and Gains Taxes. Bristol and FelCor will cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any real property transfer or gains, sales, use, transfer, value added, stock transfer and stamp Taxes, any transfer, recording, registration and other fees and any similar Taxes which become payable in connection with the transactions contemplated by this Agreement (together with any related interests, penalties or additions to Tax, "Transfer and Gains Taxes"). From and after the Effective Time, the Surviving Corporation will, or will cause FelCor Operating Partnership, as appropriate, to pay or cause to be paid, without deduction or withholding from any amounts payable to the holders of Surviving Corporation Common Shares, all Transfer and Gains Taxes. 5.8. Indemnification. (a) From and after the Effective Time, the Surviving Corporation will provide exculpation and indemnification for each individual who is now or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer or director of Bristol or any Bristol Subsidiary (the "Indemnified Parties") which is the same as the exculpation and indemnification provided to the Indemnified Parties by Bristol and the Bristol Subsidiaries immediately prior to the Effective Time in the Bristol Certificate and Bylaws or the applicable charter or other organizational document of such Bristol Subsidiary, as in effect on the date hereof; provided, that such exculpation and indemnification covers actions on or prior to the Effective Time, including without limitation all transactions contemplated by this Agreement and the Transaction Documents. In no event will the Surviving Corporation be obligated to provide directors' and officers' liability insurance. If the Surviving Corporation has directors' and officers' insurance, such insurance will apply to all directors and officers of the Surviving Corporation serving as such during the period such coverage is in effect. Notwithstanding anything in this Agreement to the contrary, Bristol will purchase insurance coverage for the directors and officers of Bristol who are covered under Bristol's directors' and officers' insurance policy as of the Effective Time for claims made after the Effective Time with respect to liabilities arising or relating to periods prior to the Effective Time, which insurance coverage will provide that FelCor is a named insured thereunder. (b) The Surviving Corporation will continue in force and effect after the Effective Time each indemnification agreement between Bristol or any Bristol Subsidiary, on the one hand, and any Person, on the other hand, which was in force and effect immediately prior to the Effective Time. (c) The provisions of this Section 5.8 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party or other Person referred to in this Section 5.8, his or her heirs, and his or her personal representatives and will be binding on all successors and assigns of Bristol and FelCor. (d) In the event that the Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and will not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case the successors and assigns of such entity will assume the obligations set forth in this Section 5.8, which obligations are expressly intended to be for the irrevocable benefit of, and will be enforceable by, each Person covered hereby. 5.9. Spin-Off Transactions. (a) Bristol will diligently seek and use reasonable best efforts to obtain prior to the Closing Date all material consents required to be obtained by BHMC and BHR to perform their respective obligations under the Spin-Off Agreement and the other agreements contemplated hereby to which BHMC and BHR is a party. Bristol will keep FelCor apprised in reasonable detail of its progress in obtaining such consents. 28 37 (b) Bristol will furnish to FelCor copies of all documentation relating to or to be delivered in connection with the Spin-Off Transactions. Without limiting the generality or effect of the foregoing, Bristol will furnish to FelCor copies of all documentation relating to (i) the transfers to BHR of the Spin-Off Assets (as defined in the Spin-Off Agreement) and the assumptions by BHR of the Spin-Off Liabilities (as defined in the Spin-Off Agreement), (ii) the formation and organizational documents for the Non-Corporate Bristol Hotel Subsidiaries, and (iii) the merger documents between the Bristol Corporate Subsidiaries and the Non-Corporate Bristol Hotel Subsidiaries, and provide FelCor an opportunity to comment thereon and consent to any of such documentation. 5.10. Declaration of Dividends and Distributions. From and after the date of this Agreement, except for the Spin-Off, Bristol will not declare or pay any dividend or distribution to its stockholders. From and after the date of this Agreement, FelCor will not declare or pay any dividend or other distribution to the stockholders except in accordance with Schedule 4.2 to the FelCor Disclosure Letter. 5.11. Affiliates; Etc. Prior to the Closing Date, Bristol will deliver to FelCor a letter identifying all Persons who are, at the time this Agreement is submitted for adoption by to the stockholders of Bristol, "affiliates" of Bristol for purposes of Rule 145 under the Securities Act. Bristol will use reasonable efforts to cause each such Person to deliver to FelCor on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit A. 5.12. Bristol's Accumulated and Current Earnings and Profits. Bristol will use all reasonable efforts to assist FelCor and Arthur Andersen LLP in the calculation of the current and accumulated earnings and profits (as determined for federal income Tax purposes) ("E&P") of Bristol as of the Closing Date, giving effect to the Spin-Off. Bristol will deliver to FelCor not later than 21 calendar days prior to the expected Closing Date, (i) a statement of accumulated and current E&P of Bristol as of a date not more than 30 calendar days prior to the Closing Date but after giving effect to the Spin-Off and (ii) a statement of estimated accumulated and current E&P of Bristol as of the Closing Date after giving effect to the Spin-Off (together, the "Preliminary E&P Statement"). Bristol will use reasonable efforts to obtain from Arthur Andersen LLP (i) upon delivery of the Preliminary E&P Statement, such firm's computation, or confirmation of Bristol's computation, of accumulated and current E&P of Bristol as set forth in the Preliminary E&P Statement and (ii) an undertaking to provide within three months after the Closing Date, such firm's final computation, or confirmation of Bristol's computation, of accumulated and current E&P of Bristol as of the Closing Date, in substantially the form set forth on Schedule 5.12 (with such changes thereto as FelCor may reasonably request and to which Arthur Andersen LLP may agree). 5.13. REIT-Related Matters. (a) Bristol will take such further actions and engage in such further transactions as determined by FelCor, based on written advice of FelCor's counsel, as may be reasonably necessary to preserve FelCor's status as a REIT under the Code, provided that no such actions could reasonably be expected to have a material adverse economic effect on Bristol or its stockholders if the Merger is not consummated or on BHR following the Spin-Off Transactions. (b) At the Closing, FelCor will deliver to each of the Principal Stockholders an exemption from the stock ownership limitations in the FelCor Articles that permits each of the Principal Stockholders to own at any time up to 15% of the FelCor Common Shares outstanding (the "Exemptions"). The Exemptions will be conditioned upon the continuing accuracy of the representations provided by the Principal Stockholders as to their ownership of FelCor Common Shares and BHR Common Shares in connection with obtaining the Exemptions. The percentage of FelCor Common Shares that each Principal Stockholder may own under the Exemption will be reduced automatically (i) to the extent FelCor issues additional FelCor Common Shares which entitle such Principal Stockholder to purchase additional FelCor Common Shares to maintain its percentage ownership and such Principal Stockholder elects not to maintain its percentage ownership of FelCor Common Shares by acquiring additional shares in connection with such issuance and (ii) to the extent necessary for FelCor to maintain its REIT status. 5.14. Interim Credit Facility. As promptly as practicable and in any event not later than April 15, 1998, the parties will enter into an interim credit facility providing for loans of (i) $25.0 million to fund a portion of the cash required in connection with the Omaha Hotel, Inc. acquisition as described in Schedule 4.2 to the 29 38 Bristol Disclosure Letter, and (ii) $31.2 million to fund the prepayment on June 15, 1998 of the $30 million Senior Secured Notes described in Schedule 3.4 to the Bristol Disclosure Letter. Such loans will be secured by certain of the Omaha assets so acquired or other real estate acceptable to FelCor, will bear a market rate of interest and be on other commercially reasonable terms and conditions. The loans will be due and payable 120 days following the termination of this Agreement pursuant to Section 7.1 hereof ; provided, however, that (i) if FelCor is obligated to pay the Break-up Fee in connection with such termination, the maturity date of such loan will be extended to the date on which FelCor pays the Break-up Fee (but in no event beyond December 31, 2003) and (ii) if this Agreement is terminated prior to the Effective Time pursuant to Section 7.1(f), any loans then outstanding will be converted into unsecured indebtedness of Bristol, will bear a market rate of interest and be on other commercially reasonable terms and will be due and payable on December 31, 2003. VI. CONDITIONS 6.1. Conditions To Each Party's Obligation To Effect the Merger. The obligations of each party to effect the Merger will be subject to the fulfillment at or prior to the Closing Date of the following conditions: (a) Stockholder Approvals. The Bristol Stockholder Approval and the FelCor Stockholder Approval shall have been obtained; (b) Listing of Shares. The NYSE shall have approved for listing the Surviving Corporation Common Shares to be issued in the Merger, subject to official notice of issuance; (c) Registration Statement. The Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings by the SEC seeking a stop order; (d) No Injunctions or Restraints. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger, the Spin-Off or any of the other transactions contemplated hereby shall be in effect; (e) Tax Opinion. Bristol and FelCor shall have received an opinion, dated the Closing Date, from Hunton & Williams, Jenkens & Gilchrist or Jones, Day, Reavis & Pogue, based upon certificates and letters substantially in the form set forth in Exhibit B hereto and dated the Closing Date (and which the parties agree to provide as reasonably requested by counsel), to the effect that the Merger will qualify as a tax-free reorganization under the provisions of Section 368(a)(1)(A) of the Code; (f) Opinion Relating to REIT Status and Partnership Status. Bristol and FelCor shall have received an opinion of Hunton & Williams, counsel to FelCor, or Jones, Day, Reavis & Pogue, counsel to Bristol, in each case in substantially the form set forth in Exhibit C hereto dated the Closing Date to the effect that (i) commencing with its taxable year ended December 31, 1994, FelCor was organized and has operated in conformity with the requirements for qualification as a REIT under the Code,(ii) FelCor Operating Partnership has been since its formation in 1994 and continues to be treated for federal income Tax purposes as a partnership, and not as a corporation or association taxable as a corporation, and (iii) the Merger will not prevent FelCor from continuing to operate in conformity with the requirements for qualification as a REIT under the Code; and (g) Change in Tax Laws. There shall not have been any Federal Legislative or Regulatory Change. For purposes of this Agreement, the term "Federal Legislative or Regulatory Change" means any enacted, promulgated or proposed legislative, administrative or judicial action, interpretation or decision that causes or if effected could be reasonably expected to cause FelCor to cease to qualify as a REIT for federal income tax purposes. 30 39 6.2. Conditions To Obligations of FelCor. The obligations of FelCor to effect the Merger and to consummate the other transactions contemplated to occur on the Closing Date is further subject to the following conditions, any one or more of which may be waived by FelCor: (a) Representations and Warranties of Bristol. The representations and warranties of Bristol set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date (other than changes thereto which occurred solely by reason of the Spin-Off Transactions), as though made on and as of the Closing Date, except to the extent the representation or warranty is expressly limited by its terms to another date, and FelCor shall have received a certificate (which certificate may be qualified by Knowledge to the same extent as the representations and warranties of Bristol contained herein are so qualified) signed on behalf of Bristol by the President of Bristol, in such capacity, to such effect. For the purposes of Section 6.2(a), the representations and warranties of Bristol will be deemed true and correct unless the breach of such representations and warranties, in the aggregate, could reasonably be expected to have a Bristol Material Adverse Effect; provided, however, that for purposes of this Section 6.2(a), the representation and warranty of Bristol set forth in Section 3.11(d) will be deemed to be true and correct unless the breach thereof would have a FelCor Material Adverse Effect; (b) Performance of Covenants of Bristol. Bristol shall have performed in all material respects all covenants required to be performed by it under this Agreement at or prior to the Effective Time, and FelCor shall have received a certificate signed on behalf of Bristol by the President of Bristol, in such capacity, to such effect; (c) Material Adverse Change. Since the date of this Agreement, there shall have been no Bristol Material Adverse Change and FelCor shall have received a certificate of the President of Bristol, in such capacity, certifying to such effect; (d) Spin-Off Transactions. The Spin-Off Transactions shall have been completed and all documents required to be delivered in connection with the Spin-Off Transactions pursuant to the Spin-Off Agreement shall have been executed and delivered by all parties thereto; (e) Delivery of E&P Statement. Arthur Andersen LLP shall have delivered to FelCor its confirmation of Bristol's E&P set forth in the Preliminary E&P Statement as required by Section 5.12; and (f) Other Opinions. Bristol shall have received an opinion of Jones, Day, Reavis & Pogue to the effect that (i) the Merger will not result in either (A) the merger of Holiday Inns, Inc. with and into Bristol pursuant to that certain Agreement and Plan of Merger dated as of December 15, 1996, as amended as of April 1, 1997, among Holiday Corporation, Holiday Inns, Inc., and Bristol or (B) the Exchange (as that term is defined in that Agreement and Plan of Merger) failing to qualify for tax free treatment under Section 368(a)(1)(D) of the Code and Section 355 of the Code and Section 368(a)(1)(A) of the Code, respectively, and (ii) the distribution to the holders of Bristol Common Shares of all of the BHR Common Shares as provided in the Spin-Off Agreement will be treated for federal income tax purposes as a taxable dividend by Bristol to the holders of Bristol Common Shares. 6.3. Conditions To Obligations of Bristol. The obligations of Bristol to effect the Merger and to consummate the other transactions contemplated to occur on the Closing Date is further subject to the following conditions, any one or more of which may be waived by Bristol: (a) Representations and Warranties of FelCor. The representations and warranties of FelCor set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, except to the extent the representation or warranty is expressly limited by its terms to another date, and Bristol shall have received a certificate (which certificate may be qualified by Knowledge to the same extent as the representations and warranties of FelCor contained herein are so qualified) signed on behalf of FelCor by the President of FelCor, in such capacity, to such effect. For the purposes of this Section 6.3(a), the representations and warranties of 31 40 FelCor will be deemed true and correct unless the breach of such representations and warranties, in the aggregate, could reasonably be expected to have a FelCor Material Adverse Effect; (b) Performance of Covenants of FelCor. FelCor shall have performed in all material respects all covenants required to be performed by it under this Agreement at or prior to the Effective Time, and Bristol shall have received a certificate signed on behalf of FelCor by the President of FelCor, in such capacity, to such effect; and (c) Material Adverse Change. Since the date of this Agreement, there shall have been no FelCor Material Adverse Change and Bristol shall have received a certificate of the President of FelCor, in such capacity, certifying to such effect. 6.4. Frustration of Closing Conditions. Neither FelCor nor Bristol may rely on the failure of any condition set forth in Section 6.1, 6.2 or 6.3, as the case may be, to be satisfied if such failure was caused by such party's failure to use reasonable efforts to consummate the Merger, the Spin-Off and the other transactions contemplated by this Agreement and the Spin-Off Agreement, as required by and subject to Sections 5.3 and 5.9. VII. TERMINATION, AMENDMENT AND WAIVER 7.1. Termination. This Agreement may be terminated at any time prior to the filing of the Articles of Merger with the Department, whether before or after either of the Stockholder Approvals are obtained: (a) By mutual written consent duly authorized by the FelCor Board and the Bristol Board; (b) By FelCor, upon a breach of any representation, warranty or covenant on the part of Bristol set forth in this Agreement, in any case such that the conditions set forth in Section 6.2(a) or Section 6.2(b), as the case may be, would be incapable of being satisfied by the Drop-Dead Date; (c) By Bristol, upon a breach of any representation, warranty or covenant on the part of FelCor set forth in this Agreement, in any case such that the conditions set forth in Section 6.3(a) or Section 6.3(b), as the case may be, would be incapable of being satisfied by the Drop-Dead Date; (d) By either Bristol or FelCor, if any judgment, injunction, order, decree or action by any Governmental Entity of competent authority preventing the consummation of the Merger or the Spin-Off shall have become final and nonappealable; (e) By either FelCor or Bristol, if the Merger is not consummated by September 30, 1998 or such later date to which the parties may agree in their respective sole discretion (the "Drop Dead Date"); provided, in the case of termination pursuant to this Section 7.1(e), the terminating party shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the occurrence of the failure referred to in this Section; (f) By either Bristol or FelCor if, upon a vote at a duly held FelCor Stockholders Meeting or any adjournment thereof, the FelCor Stockholder Approval shall not have been obtained; (g) By either Bristol or FelCor if, upon a vote at a duly held Bristol Stockholders Meeting or any adjournment thereof, the Bristol Stockholder Approval shall not have been obtained; (h) By Bristol, if (i) prior to the FelCor Stockholders Meeting, the FelCor Board shall have withdrawn or modified in any manner adverse to Bristol, or failed within ten Business Days of a request therefor to reconfirm, its approval or recommendation of the Merger or this Agreement, or approved or recommended or resolved to approve or recommend any Superior Proposal, (ii) FelCor shall have entered into an Acquisition Agreement, or (iii) FelCor or any of its officers, directors, employees or representatives shall have taken any action that would be prohibited by Section 4.1 but for the exceptions therein allowing certain actions to be taken pursuant to Section 4.1(c); 32 41 (i) By FelCor, if (i) prior to the Bristol Stockholders Meeting, the Bristol Board shall have withdrawn or modified in any manner adverse to FelCor, or failed within ten Business Days of a request therefor to reconfirm, its approval or recommendation of the Merger or this Agreement, or approved or recommended or resolved to approve or recommend any Superior Proposal, (ii) Bristol shall have entered into an Acquisition Agreement, or (iii) Bristol or any of its officers, directors, employees or representatives shall have taken any action that would be prohibited by Section 4.1 but for the exceptions therein allowing certain actions to be taken pursuant to Section 4.1(c); and (j) By Bristol if the Volume Weighted Average Trading Price for FelCor Common Shares as reported in the NYSE Composite Transactions Report for any ten Trading Day period prior to the Effective Time is less than $28.00 per share. 7.2. Certain Fees and Expenses. (a) If this Agreement shall be terminated (i) pursuant to Section 7.1(c) or 7.1(h), then FelCor will pay Bristol (provided FelCor was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination) a fee equal to the Break-Up Fee and (ii) pursuant to Section 7.1(b) or 7.1(i), then Bristol will pay FelCor (provided Bristol was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Fee. If this Agreement shall be terminated (i) pursuant to Section 7.1(g), then Bristol will pay FelCor (provided Bristol was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination), an amount equal to the Break-Up Expenses, and (ii) pursuant to Section 7.1(f), then FelCor will pay Bristol (provided FelCor was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up Expenses. Notwithstanding the foregoing, if the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(d) or 7.1(j) or Bristol's failure to perform its obligations under this Agreement in such a manner so as to entitle FelCor to terminate this Agreement pursuant to Section 7.1(b)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by FelCor, and either prior to the termination of this Agreement or within 12 months thereafter FelCor or any FelCor Subsidiary enters into any agreement providing for an Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then FelCor will pay the Break-Up Fee and the Break-Up Expenses to Bristol. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(d) or 7.1(j) or FelCor's failure to perform its obligations under this Agreement in such a manner so as to entitle Bristol to terminate this Agreement pursuant to Section 7.1(c)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by Bristol, and either prior to the termination of this Agreement or within 12 months thereafter Bristol or any Bristol Subsidiary enters into any agreement providing for an Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Bristol will pay the Break-Up Fee and the Break-Up Expenses to FelCor. (b) Any payment of the Break-Up Fee and, if applicable, Break-Up Expenses, as aforesaid, will be compensation and liquidated damages for the loss suffered by Bristol or FelCor, as applicable, as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances, and neither party will have any other liability to the other after such payment. The Break-Up Fee and/or the Break-Up Expenses will be paid by FelCor to Bristol or Bristol to FelCor (as applicable), in immediately available funds within ten Business Days after the date the event giving rise to the obligation to make such payment occurred, provided, however, that neither party may enter into any agreement providing for an Acquisition Proposal unless, prior thereto, this Agreement is terminated in accordance with its terms and the required Break-Up Fee and Break-Up Expenses are paid or otherwise provided for. As used in this Agreement, "Break-Up Fee" will be an amount equal to the lesser of (i) $60 million plus Break-Up Expenses (the "Base Amount") and (ii) in the case of FelCor, the sum of (A) the maximum amount that can be paid to FelCor without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by 33 42 independent accountants to FelCor, and (B) in the event FelCor receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that FelCor has received a ruling from the Internal Revenue Service ("IRS") holding that FelCor's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") (and therefore would not cause FelCor to fail to satisfy the REIT Requirements) or that the receipt by FelCor of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Bristol's obligation to pay any unpaid portion of the Break-Up Fee will terminate five years from the date of this Agreement. In the event that FelCor is not able to receive the full Base Amount, Bristol will place the unpaid amount in escrow and will not release any portion thereof to FelCor unless and until Bristol receives any one or combination of the following: (i) a letter from FelCor's independent accountants indicating the maximum amount that can be paid at that time to FelCor without causing FelCor to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event Bristol will pay to FelCor the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in clause (i) above. (c) The "Break-Up Expenses" payable to Bristol or FelCor, as the case may be (the "Recipient"), will be an amount equal to the lesser of (i) $5 million as payment for all of the Recipient's out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including without limitation all attorneys', consultants', accountants' and investment bankers' fees and expenses and all other costs and expenses such as travel, fax, long-distance telephone and other costs) (the "Expense Fee") and (ii) in the case of FelCor, the sum of (A) the maximum amount that can be paid to the Recipient without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Recipient, and (B) in the event the Recipient receives a Break-Up Fee Tax Opinion indicating that the Recipient has received a ruling from the IRS holding that the Recipient's receipt of the Expense Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements (and therefore would not cause FelCor to fail to satisfy the REIT Requirements) or that receipt by the Recipient of the remaining balance of the Expense Fee following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Expense Fee less the amount payable under clause (A) above. The obligation of Bristol or FelCor, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses will terminate five years from the date of this Agreement. In the event that the Recipient is not able to receive the full Expense Fee, the Payor will place the unpaid amount in escrow and will not release any portion thereof to the Recipient unless and until the Payor receives any one or combination of the following: (i) a letter from the Recipient's independent accountants indicating the maximum amount that can be paid at that time to the Recipient without causing the Recipient to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event the Payor will pay to the Recipient the lesser of the unpaid Expense Fee or the maximum amount stated in the letter referred to in clause (i) above. (d) Following the Effective Time, FelCor and BHR will each reasonably consult with the other as to the computation of the contemplated distribution of cash (the "Cash Distribution") sufficient, after giving effect to the Spin-Off, to effect the complete elimination of Bristol's historical and current E&P accumulated since the formation of Bristol until the Effective Time, such Cash Distribution to be made on or before December 31, 1998. In the event that it is determined, subsequent to the making of the Cash Distribution, that the Cash Distribution did not eliminate Bristol's E&P as contemplated above, BHR will (i) to the extent of any such shortfall, indemnify FelCor for an amount equal to the costs incurred (including Tax payments and any associated interest and penalties and reasonable accounting, legal and other out-of-pocket expenses) in disputing any claim that the E&P had not been completely eliminated upon payment of the Cash Distribution, provided, however, that BHR will be solely responsible under this sentence for costs incurred up to a maximum of $5 million, and (ii) if such costs exceed $5 million, (A) BHR will be responsible for 10% of any such costs exceeding $5 million, up to a total of $5 million of additional payments by BHR, and (B) any excess costs of this nature will be borne solely by FelCor. 34 43 7.3. Effect of Termination. In the event of termination of this Agreement by either FelCor or Bristol as provided in Section 7.1, this Agreement will forthwith become void and have no effect, without any liability or obligation on the part of Bristol or FelCor (other than the last sentence of Section 5.2, Section 7.2, this Section 7.3 and Article VIII); provided that (a) if this Agreement is terminated by FelCor pursuant to Section 7.1(b), Bristol will not be entitled to any of the benefits of Section 7.2, or (b) if this Agreement is terminated by Bristol pursuant to Section 7.1(c), FelCor will not be entitled to any of the benefits of Section 7.2. 7.4. Amendment. This Agreement may be amended by the parties in writing by action of their respective Boards at any time before or after any Stockholder Approvals are obtained and prior to the filing of the Articles of Merger with the Department or the Certificate of Merger with the Secretary of State of the State of Delaware; provided, however, that, after the Stockholder Approvals are obtained, no such amendment, modification or supplement will be made which by Law requires the further approval of stockholders without obtaining such further approval. 7.5. Extension; Waiver. At any time prior to the Effective Time, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) subject to the proviso of Section 7.4, waive compliance with any of the agreements or conditions of the other party contained in this Agreement. Any agreement on the part of a party to any such extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise will not constitute a waiver of those rights. VIII. GENERAL PROVISIONS 8.1. Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement confirming the representations and warranties in this Agreement will survive the Effective Time. This Section 8.1 will not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time. 8.2. Notices. All notices, requests, claims, demands and other communications under this Agreement will be in writing and will be delivered personally, sent by overnight courier (providing proof of delivery) to the parties or sent by fax (providing confirmation of transmission) at the following addresses or fax numbers (or at such other address or fax number for a party as will be specified by like notice): (a) if to Bristol, to: Bristol Hotel Company 14295 Midway Road Dallas, Texas 75244 Attention: President Attention: General Counsel Telecopy: (972) 391-1515 with a copy to: Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, New York 10022 Attention: Robert A. Profusek Telecopy: (212) 755-7306 35 44 (b) if to FelCor, to: FelCor Suite Hotels, Inc. 545 E. John Carpenter Freeway Suite 1300 Irving, Texas 75062 Attention: President Attention: General Counsel Telecopy: (972) 444-4949 with a copy to: Jenkens & Gilchrist, P.C. 1445 Ross Avenue Suite 3200 Dallas, Texas 75202 Attention: Robert W. Dockery Telecopy: (214) 855-4300 All notices will be deemed given only when actually received. 8.3. Certain Definitions. As used in this Agreement, the following terms have the following meanings when used herein with initial capital letters: (a) "Affiliate" (or words of similar import) has the same meaning as such term is defined in Rule 405 promulgated under the Securities Act. (b) "Bristol Hotel" means each of the hotels listed in Schedule 3.2 to the Bristol Disclosure Letter, which constitutes all of the hotels in which Bristol owns, directly or indirectly, an ownership interest. (c) "Bristol Hotel Subsidiaries" means the Bristol Subsidiaries that own or hold, directly or indirectly, an interest in a Bristol Hotel. (d) "Business Day" means a day other than Saturday, Sunday or any day on which commercial banks in New York, New York or Dallas, Texas are authorized or obligated to close. (e) "Environmental Law" means any Law or order of any Governmental Entity relating to the regulation or protection of human health, safety or the environment or to emissions, discharges, releases or threatened releases of Hazardous Materials into the environment (including without limitation, ambient air, soil, surface water, ground water, wetlands, land or subsurface strata), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials. (f) "FelCor Hotel" means each of the hotels listed in Schedule 2.2 to the FelCor Disclosure Letter, which constitutes all of the hotels in which FelCor owns, directly or indirectly, an ownership interest. (g) "Hazardous Material" means (i) any petroleum or petroleum products, flammable explosives, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation and transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls (PCBs), (ii) any chemicals or other materials or substances which are now or hereafter become defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants" or words of similar import under any Environmental Law, and (iii) any other chemical or other material or substance, exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Entity under any Environmental Law. (h) "Indebtedness" means, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed money, whether secured or unsecured, (ii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (iii) all 36 45 capitalized lease obligations of such Person, (iv) all obligations of such Person under interest rate cap, swap, collar or similar transaction or currency hedging transactions (valued at the termination value thereof), and (v) all guarantees of such Person of any such indebtedness of any other Person. (i) "Non-Corporate Bristol Hotel Subsidiaries" means those of the Bristol Hotel Subsidiaries that are taxable as partnerships or are disregarded as entities under the Code. (j) "Person" means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity. (k) "Record Date" means the date determined by the Bristol Board or the FelCor Board as the record date for determining the stockholders entitled to notice of, and to vote at, the Bristol Stockholders Meeting or the FelCor Stockholders Meeting, as applicable. (l) "Spin-Off Transactions" means, collectively, the Reorganization, the Contribution, the Subsidiary Mergers, the Holdings Distribution, the Excess Shares Redemption and the Spin-Off, each as defined in the Spin-Off Agreement, and the Leasing Transactions. (m) "Subsidiary" of any Person means another Person, at least 50% of the equity or voting securities of which is owned, directly or indirectly, by such first Person. (n) "Taxes" means all federal, state, local and foreign income, property, sales, franchise, employment, excise and other taxes, tariffs or governmental charges of any nature whatsoever, together with penalties, interest or additions to Tax with respect thereto. (o) "Transaction Documents" means this Agreement, the Spin-Off Agreement, the Voting Agreement, the FelCor Stockholders and Registration Rights Agreement (as defined in the Voting Agreement), the BHR Stockholders Agreement (as defined in the Voting Agreement), the BHR Registration Rights Agreement (as defined in the Voting Agreement), the New Leases (as defined in the Spin-Off Agreement), the Hotel Properties Agreement (as defined in the Voting Agreement), the Articles of Merger, the Certificate of Merger and each other agreement, document, certificate or instrument delivered in connection with any of the foregoing and to which either FelCor, Bristol, BHR, BHMC or any FelCor Subsidiary or Bristol Subsidiary is a party. (p) "Volume Weighted Average Trading Price" means, during any relevant period, the quotient of (i) the sum of the product of (A) the number of shares sold at a particular price per share during such period and (B) such per share trading price over (ii) the total number of shares sold during such period. 8.4. Interpretation. When a reference is made in this Agreement to a Section, Exhibit or Schedule such reference will be to a Section, Exhibit or Schedule of or to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation." 8.5. Counterparts. This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. 8.6. Entire Agreement; No Third-party Beneficiaries. This Agreement, the FelCor Disclosure Letter, the Bristol Disclosure Letter, the Confidentiality Agreement and the Transaction Documents (a) constitute the entire agreement of the parties and supersede all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement and (b) except as provided in Article I and Sections 5.8 and 5.9, are not intended to confer upon any Person other than the parties hereto any rights or remedies. 8.7. Governing Law. This Agreement will be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable conflict of laws principles thereof. 37 46 8.8. Assignment. Neither this Agreement, nor any of the rights, interests or obligations under this Agreement, may be assigned or delegated, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other party. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. 8.9. Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States located in the State of Texas or Delaware or in any Texas or Delaware State court, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (a) consents to submit itself (without making such submission exclusive) to the personal jurisdiction of any federal court located in the State of Texas or Delaware or any Texas or Delaware State court in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement and (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. 8.10. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision will be interpreted to be only so broad as is enforceable. IN WITNESS WHEREOF, Bristol and FelCor have caused this Agreement to be signed by their respective officers thereunto duly authorized all as of the date first written above. BRISTOL HOTEL COMPANY By: /s/ JOEL M. EASTMAN ---------------------------------- Joel M. Eastman Vice President FELCOR SUITE HOTELS, INC. By: /s/ LAWRENCE D. ROBINSON ---------------------------------- Lawrence D. Robinson Senior Vice President 38 EX-23.1 3 CONSEN TO ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in the Registration Statement on Form S-3 (File No 333-46357) of FelCor Suite Hotels, Inc of our report dated February 6, 1998 (except with respect to the matter discussed in Note 20 as to which date is March 25, 1998), on the consolidated financial statements of the Bristol Hotel Company (and to all references to our Firm), which are included in the Current Report on Form 8-K of FelCor Suite Hotels, Inc. dated March 24, 1998. /s/ ARTHUR ANDERSEN LLP Dallas, Texas, April 17, 1998 EX-23.2 4 CONSENT OF PRICE WATERHOUSE LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of the Registration Statement on Form S-3 (No. 333-46357) of FelCor Suite Hotels, Inc. of our report dated February 23, 1996 relating to the consolidated financial statements of Bristol Hotel Company, which appears on page F-2 in the Current Report on Form 8-K of FelCor Suite Hotels dated March 24, 1998. /s/ PRICE WATERHOUSE LLP - --------------------------------- PRICE WATERHOUSE LLP Dallas, Texas April 20, 1998 -----END PRIVACY-ENHANCED MESSAGE-----