EXHIBIT 10.3
SECOND AMENDMENT TO
SUBSCRIPTION AGREEMENTS
This SECOND AMENDMENT TO SUBSCRIPTION AGREEMENTS (the "Amendment") is
made and entered into as of this 12th day of December, 1995, by and among PROMUS
HOTELS, INC., a Delaware corporation ("Promus"), FELCOR SUITE HOTELS, INC., a
Maryland corporation (the "Company"), and FELCOR SUITES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Partnership").
RECITALS
A. The parties hereto have entered into that certain Subscription
Agreement, dated as of May 3, 1995 (the "First Subscription Agreement"), with
respect to providing certain acquisition financing for hotels to become Embassy
Suites hotels.
B. The parties hereto have entered into that certain Subscription
Agreement, dated as of October 17, 1995 (the "Second Subscription Agreement,"
and together with the First Subscription Agreement, the "Subscription
Agreements"), with respect to providing certain acquisition financing for
certain hotels currently in the Crown Sterling hotel chain and to become Embassy
Suites hotels.
C. The parties have entered into that certain First Amendment to
Subscription Agreements, dated as of November 16, 1995 (the "First Amendment"),
with respect to certain sums advanced, or contemplated to be advanced, by Promus
for the acquisition of certain hotels, both Crown Sterling hotels and other
hotels, that are to become Embassy Suites hotels.
D. The parties desire to nullify the First Amendment, and to
memorialize their agreement as to the applicability of the Subscription
Agreements to such advances, as well as otherwise to modify the Subscription
Agreements as set forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties do hereby
agree as follows:
1. FIRST AMENDMENT. The First Amendment is hereby terminated by the
parties hereto, and the parties further agree that the First Amendment shall
have no force or effect as though the same had never been entered into.
2. DEPOSIT LOAN. Promus has loaned to the Partnership, pursuant to
that certain Promissory Note, dated as of September 22, 1995, the sum of Seven
Million, Five Hundred Thousand Dollars ($7,500,000) (the "Deposit Loan")
representing a
portion of the deposit made by a subsidiary of the Partnership with respect to
the acquisition of the Crown Sterling hotel chain. The parties hereby agree
that availability under the Crown Sterling Subscription (as defined in the
Second Subscription Agreement) shall be reduced by the principal amount of the
Deposit Loan outstanding from time to time.
3. FIRST SUBSCRIPTION AGREEMENT ADVANCES. Promus has advanced, or
will advance pending certain approvals, to the Partnership the following sums
with respect to the acquisition of the corresponding hotels:
Marlborough $5,000,000
Brunswick 2,500,000
Corpus Christi 2,500,000
Lombard 2,500,000
Cleveland 5,000,000
The parties agree that the foregoing amounts have been advanced, or will be
advanced, pursuant to the First Subscription Agreement.
4. CROWN STERLING FIRST SUBSCRIPTION AGREEMENT ADVANCES. Promus has
advanced to the Partnership the sum of $7,500,000 with respect to the
acquisition of the Crown Sterling hotels in Burlingame, California and
Bloomington, Minnesota. The parties hereto agree that such advance was advanced
pursuant to the First Subscription Agreement.
5. CROWN STERLING SECOND SUBSCRIPTION AGREEMENT ADVANCES. Promus
has advanced to the Partnership (a) the additional sum of $1,142,346 with
respect to the acquisition of the Crown Sterling hotels in Burlingame,
California and Bloomington, Minnesota, and (b) the sum of $3,886,186 for the
acquisition of the Crown Sterling hotels in Minneapolis (Downtown), Minnesota
and St. Xxxx, Minnesota. The parties hereto agree that such advances were made
to the Partnership pursuant to the Second Subscription Agreement.
6. AMENDMENT TO SECOND SUBSCRIPTION AGREEMENT. The Second
Subscription Agreement is hereby amended to delete therefrom the references to
the Promus Offering, as that term is defined therein, and Promus shall have no
rights or obligations with respect to such Promus Offering. In connection
therewith, the amount subscribed for by Promus under the Crown Sterling
Subscription is hereby amended to be increased to Fifty Million Dollars
($50,000,000). The Second Subscription Agreement is hereby further amended as
follows:
(a) Section 1(e) of the Second Subscription Agreement is hereby
amended and restated in its entirety to read as follows:
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(e) LIMITATIONS. Promus' agreement herein to purchase
Common Stock and/or Units in the Crown Sterling Subscription, the
proceeds of which are to be used by the Partnership to complete the
acquisition by FelCor pursuant to the Acquisition Documents shall not
exceed at any time the amount (the "Aggregate Subscription Limit")
equal to the Closed Hotel Amount (as defined below). The "Closed
Hotel Amount" shall mean Fifty Million Dollars ($50,000,000) times a
fraction, the numerator of which is the sum of the Allocated Purchase
Price (as set forth on Exhibit A hereto) for all hotels the purchase
of which has been closed pursuant to the Acquisition Documents, and
the denominator of which shall equal Four Hundred Eighty-Five Million
Five Hundred Thirty-Eight Thousand Seven Dollars ($485,538,007).
Following the date on which a minimum of fourteen (14) of the hotels
listed on Exhibit A have been acquired pursuant to the Acquisition
Documents, the difference between the Aggregate Subscription Limit and
Fifty Million Dollars ($50,000,000) shall be available for the
purchases of Qualifying Hotels, as defined in and pursuant to the
terms and conditions of that certain Subscription Agreement, dated as
of May 3, 1995 by and among Embassy Suites, Inc., the Company and the
Partnership (the "Prior Subscription Agreement") as though such terms
and conditions of the Prior Subscription Agreement were set forth
therein, and in no event shall the amount of Common Stock and/or Units
purchased by Promus hereunder exceed Fifty Million Dollars
($50,000,000).
(b) Sections 3(b) and 4 of the Second Subscription Agreement are
hereby amended to delete therefrom the references to the amount "Twenty
Five Million Dollars ($25,000,000)" and to insert in lieu thereof the
amount "Fifty Million Dollars ($50,000,000)."
7. TIMING OF OFFERING. With respect to the advances referenced in
Sections 4 and 5 above, the parties hereto agree that with respect to such
advances such subscription shall be completed and the shares purchased pursuant
thereto owned by Promus prior to the record date with respect to the fourth
quarter of 1995 dividend on such shares, or in lieu thereof, that the Company
shall pay or cause to be paid to Promus a fee for its services equal in amount
to the amount of such fourth quarter dividend with respect to such shares.
8. MISCELLANEOUS
a. RATIFICATION. Except as expressly modified hereby, the
Subscription Agreements are in full force and effect.
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b. APPLICABLE LAW. NOTWITHSTANDING THE PLACE WHERE THIS
AMENDMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES
EXPRESSLY AGREE THAT ALL OF THE TERMS AND PROVISIONS HEREOF SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES), APPLICABLE TO AGREEMENTS
MADE AND TO BE WHOLLY PERFORMED THEREIN.
c. REFERENCES. References to either of the Subscription
Agreements herein and in each of the Subscription Agreements shall be
references to the Subscription Agreements as modified hereby.
d. ENTIRE AGREEMENT. The Subscription Agreements, as modified
by this Amendment, constitute the entire agreement among the parties hereto
pertaining to the subject matter contained herein and supersede all prior
agreements, representations and all understanding of the parties.
e. FURTHER ASSURANCES. The parties hereto agree to take all
actions, including the entering into of any documents, agreements or
instruments, or amendments thereof, as may be necessary or appropriate to
effectuate the intents and purposes hereof and consummate and make
effective the transactions contemplated hereby.
f. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one
and the same Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
PROMUS HOTELS, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxx
________________________
Title: Senior Vice President
________________________
FELCOR SUITE HOTELS, INC., a Maryland
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxxx
________________________
Title: Sr. Vice President
________________________
FELCOR SUITES LIMITED PARTNERSHIP, a
Delaware limited partnership
By: FELCOR SUITE HOTELS, INC., a
Maryland corporation and its sole
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxxx
________________________
Title: Sr. Vice President
________________________
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