Exhibit 3.4
TWENTY-FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
HOST MARRIOTT, L.P.
This TWENTY-FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF HOST MARRIOTT, L.P. (this "Twenty-Fifth
Amendment"), dated as of March 27, 2001, is entered into by Host Marriott
Corporation, a Maryland corporation, as general partner (the "General Partner")
of Host Marriott, L.P., a Delaware limited partnership (the "Partnership"), for
itself and on behalf of the limited partners of the Partnership (the "Limited
Partners").
WHEREAS, the General Partner has issued on the date hereof
5,200,000 shares of 10% Class C Cumulative Redeemable Preferred Stock (the
"Class C Preferred Stock") in an offering registered under the Securities Act of
1933, as amended, pursuant to that certain Prospectus Supplement, dated March
22, 2001 to a Prospectus dated December 30, 1998 (the "Securities Offering") and
the General Partner has contributed the net proceeds from the sale of such
shares of Class C Preferred Stock to the Partnership in exchange for 100% of a
new class of Units entitled the Class C Preferred Units, which will have rights
and preferences substantially identical to those of the Class C Preferred Stock
(it being understood that, if the General Partner issues additional shares of
Class C Preferred Stock after the date hereof, the General Partner will
contribute the net proceeds from the sale of such additional shares to the
Partnership in exchange for an equal number of additional Class C Preferred
Units).
WHEREAS, pursuant to the authority granted to the General
Partner pursuant to Section 4.2 of the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of December 30, 1998 (the
"Partnership Agreement"), the General Partner desires to amend the Partnership
Agreement (i) to establish the Class C Preferred Units as a new class of Units,
(ii) to set forth the designations, preferences, rights, powers, restrictions
and limitations of the Class C Preferred Units and (iii) to issue to the General
Partner 5,200,000 Class C Preferred Units.
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement, as
follows:
1. Amendment to Partnership Agreement.
(a) Article I of the Partnership Agreement is hereby
amended by adding the following defined term:
"Class C Preferred Capital" means an amount, with respect to
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the General Partner, equal to the product of (i) the number of Class C
Preferred Units then issued and outstanding multiplied by (ii) the sum
of $25.00 and any accumulated, accrued and unpaid distributions on the
Class C Preferred Units.
(b) Section 4.2 of the Partnership Agreement is hereby
amended by adding the following after Section 4.2.H:
I. Class C Preferred Units. Under the authority
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granted to it pursuant to Section 4.2.A hereof, the General Partner hereby
establishes an additional Class of Units entitled "Class C Preferred Units" (the
"Class C Preferred Units"). Class C Preferred Units shall have the designations,
preferences, rights, powers, restrictions and limitations set forth in Exhibit J
hereto.
(c) Section 6.1.B of the Partnership Agreement is hereby
amended by deleting Section 6.1.B of the Partnership Agreement and
adding the following after Section 6.1.A:
B. Net Losses. After giving effect to the
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special allocations set forth in Section 1 of Exhibit C, Net Losses shall be
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allocated:
(i) first, to each Partner who holds Units
not entitled to any preference in distributions, pro
rata to each such class in accordance with the terms
of such class as set forth in this Agreement or
otherwise established by the General Partner pursuant
to Section 4.2 (and within such class, pro rata to
each Partner in proportion to the respective
Percentage Interests held by such Partner in such
class as of the last day of the period for which the
allocation is being made) until the Adjusted Capital
Account (ignoring for this purpose any amounts a
Partner is obligated to contribute to the capital of
the Partnership under state law as described in
Regulation Section 1.704-1(b)(2)(ii)(c)(2) and
reduced by the Partner's Series AM Preferred Capital,
the Partner's Class A Preferred Capital, the
Partner's Class B Preferred Capital and the Partner's
Class C Preferred Capital) of each such Partner is
zero;
(ii) second, to each Limited Partner who
holds Series AM Preferred Units, pro rata in
proportion to the respective Percentage Interest in
such series of Units as of the last day of the period
for which the allocation is being made, until the
Adjusted Capital Account of such Limited Partner is
zero;
(iii) third, to the General Partner as
holder of the Class A Preferred Units, as holder of
the Class B Preferred Units and as holder of the
Class C Preferred Units until the Adjusted Capital
Account (ignoring for this purpose any amounts the
General Partner is obligated to contribute to the
capital of the Partnership under state law as
described in Regulation Section
1.704-1(b)(2)(ii)(c)(2)) of the General Partner is
zero; and
(iv) fourth to the General Partner.
(d) Section 6.1.E of the Partnership Agreement is hereby
amended by deleting Section 6.1.E of the Partnership Agreement and
adding the following after Section 6.1.D:
X. Xxxxx Income Allocation. Notwithstanding Section
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6.1.A and Section 6.1.B, but subject to the special allocations set forth in
Section 1 of Exhibit C, to the extent the General Partner's Adjusted Capital
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Account does not equal at least the sum of the Class A Preferred Capital, the
Class B Preferred Capital and the Class C Preferred Capital after taking into
account the allocations set forth in Section 6.1.A and Section 6.1.B, then the
General Partner shall be specially allocated items of gross income in an amount
that causes the General Partner's Capital Account to be equal to the sum of the
Class A Preferred Capital, the Class B Preferred Capital and the Class C
Preferred Capital.
2. The Partnership Agreement is hereby amended by
attaching thereto as Exhibit J the Exhibit J attached hereto.
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3. Pursuant to Section 7.1.A of the Partnership Agreement, the
General Partner hereby amends and restates Exhibit A to the Partnership
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Agreement as set forth in Exhibit A attached hereto to reflect the issuance of
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5,200,000 Class C Preferred Units to the General Partner in connection with the
Securities Offering effective as of March 27, 2001.
4. Certain Capitalized Terms. All capitalized terms used
herein and not otherwise defined shall have the meanings assigned in the
Partnership Agreement. Except as modified herein, all covenants, terms and
conditions of the Partnership Agreement shall remain in full force and effect,
which covenants, terms and conditions the General Partner hereby ratifies and
affirms.
[SIGNATURE PAGE APPEARS ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned has executed this
Twenty-Fifth Amendment as of the __th day of March, 2001.
HOST MARRIOTT CORPORATION, as
General Partner of Host Marriott, L.P.
By:
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Name:
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Title:
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EXHIBIT J
DESIGNATION OF THE PREFERENCES, CONVERSION
AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS AND LIMITATIONS AS
TO CLASS C PREFERRED UNITS
The Class C Preferred Units ("Class C Preferred Units") shall
have the following designations, preferences, rights, powers, restrictions and
limitations:
(1) Certain Defined Terms. Capitalized terms used but not defined
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herein shall have the meanings ascribed thereto in the Partnership Agreement.
The following capitalized terms used in this Designation of Class C Preferred
Units shall have the respective meanings set forth below:
"Business Day" means any day, other than a Saturday or Sunday,
that is not a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to be closed.
"Class C Preferred Stock" means the 10% Class C Cumulative
Redeemable Preferred Stock, par value $.01 per share, liquidation preference
$25.00 per share of the General Partner.
"Distribution Junior Units" means Class A Units, Class B
Units, the Series AM Preferred Units, the Series A Junior Participating
Preferred Units and any other class or series of Units now or hereafter issued
and outstanding the terms of which do not expressly provide that such class or
series of Units ranks senior to or on a parity with the Class C Preferred Units
in the distribution of assets on any liquidation, dissolution or winding up of
the Partnership.
"Distribution Parity Units" means the Class A Preferred Units,
the Class B Preferred Units and any other class or series of Units hereafter
issued and outstanding which by its express terms ranks on a parity with the
Class C Preferred Units in the distribution of assets on any liquidation,
dissolution or winding up of the Partnership.
"Distribution Period" means a quarterly period of each
calendar year that ends on January 15, April 15, July 15 and October 15 in which
any Class C Preferred Units are outstanding, commencing with the Original Issue
Date, except that the Distribution Period during which any Class C Preferred
Units shall be redeemed pursuant to Section 4 shall end on and include such date
of redemption.
"Dividend Junior Units" means the Class A Units, Class B
Units, the Series AM Preferred Units, the Series A Junior Participating
Preferred Units, and any other class or series of Units now or hereafter issued
and outstanding the terms of which do not expressly provide that such class or
series of Units ranks senior to or on a parity with the Class C Preferred Units
in the payment of distributions.
"Dividend Parity Units" means the Class A Preferred Units, the
Class B Preferred Units and any other class or series of Units hereafter issued
and outstanding which by its express terms ranks on a parity with the Class C
Preferred Units in the payment of distributions.
"Fully Junior Units" means the Class A Units, the Class B
Units, the Series AM Preferred Units, the Series A Junior Participating
Preferred Units and any other class or series of Units now or hereafter issued
and outstanding which are both Distribution Junior Units and Dividend Junior
Units.
"Junior Units" means the Class A Units, Class B Units, the
Series AM Preferred Units, the Series A Junior Participating Preferred Units and
any other class or series of Units now or hereafter issued and outstanding which
are either Distribution Junior Units or Dividend Junior Units or both. All
references to "Junior Units" shall include, without limitation, all Fully Junior
Units.
"Original Issue Date" means March 27, 2001.
"Parity Units" means the Class A Preferred Units, the Class B
Preferred Units and any other Units hereafter issued and outstanding which are
either Distribution Parity Units or Dividend Parity Units or both.
"set apart for payment" shall be deemed to include, without
any action other than the following, the recording by the Partnership in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of distribution by the Partnership, the allocation of
funds to be so paid on any class or series of Units; provided, however, that if
any funds for any class or series of Junior Units or any class or series of
Parity Units are placed in a separate account of the Partnership or delivered to
a disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Class C Preferred Units shall mean placing such funds in a
separate account for the Class C Preferred Units or delivering such funds to a
disbursing, paying or other similar agent for the Class C Preferred Units.
"Subject Date" means (a) any date on which any distributions
are authorized, declared or paid or set apart for payment or made upon on any
Junior Units or Parity Units and (b) any date on which any Junior Units or
Parity Units are redeemed, purchased or otherwise acquired for any consideration
or any money paid to or made available for a sinking fund for the redemption of
any such Units by the Partnership.
(2) Distributions.
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(A) Each holder of Class C Preferred Units shall be entitled
to receive out of Available Cash, when, as and if declared by the General
Partner, cumulative cash distributions at the rate of 10% per annum of the
$25.00 liquidation preference per Class C Preferred Unit (equivalent to an
annual rate of $2.50 per Class C Preferred Unit). Distributions (i) shall accrue
daily and shall begin to accrue and shall be fully cumulative from the Original
Issue Date and (ii) shall be payable quarterly, when, as and if declared by the
General Partner, in arrears in cash on
the last day of each Distribution Period, commencing on April 15, 2001 or if
such day is not a Business Day, such distribution may be paid on the next
succeeding Business Day. If the last day of a Distribution Period is not a
Business Day, the payment of such distribution on the next succeeding Business
Day shall have the same force and effect as if made on the last day of such
Distribution Period, and no additional sum shall accrue on the amount so payable
for the period from and after the last day of the Distribution Period to the
next succeeding Business Day. Accrued and unpaid distributions for any past
Distribution Period may be declared and paid at any time and for such interim
periods, without reference to any regular distribution date, to the holders of
the Class C Preferred Units on such date as may be fixed by the General Partner.
Any distribution made on the Class C Preferred Units shall first be credited
against the earliest accrued but unpaid distribution due with respect to the
Class C Preferred Units which remain payable.
(B) The amount of distributions on the Class C Preferred Units
for any Distribution Period or portion thereof will be computed on the basis of
a 360-day year consisting of twelve 30-day months (it being understood that the
distribution payable on April 15, 2001 shall be for less than a full quarter).
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distribution payment or payments on the Class C Preferred Units that may be
in arrears, in excess of the full cumulative distributions described above in
Section 2(A).
(C) So long as any Class C Preferred Units are outstanding, no
full distributions shall be authorized, declared or paid or set apart for
payment on any class or series of Dividend Parity Units or Dividend Junior Units
for any period unless full cumulative distributions have been or
contemporaneously are authorized, declared and paid or authorized, declared and
a sum sufficient for the payment thereof set apart for such payment on the Class
C Preferred Units for all past Distribution Periods (including, without
limitation, any Distribution Period that terminates on a Subject Date). When
such cumulative distributions are not paid in full or a sum sufficient for such
full payment is not set apart on the Class C Preferred Units and any class or
series of Dividend Parity Units, all distributions authorized and declared upon
the Class C Preferred Units and any other class or series of Dividend Parity
Units will be authorized and declared pro rata so that the amount of
distributions authorized and declared with respect to the Class C Preferred
Units and such other class or series of Dividend Parity Units will in all cases
bear to each other the same ratio that accrued and unpaid distributions on the
Class C Preferred Units and such other class or series of Dividend Parity Units
bear to each other.
(D) Except as provided in the immediately preceding paragraph,
so long as any Class C Preferred Units are outstanding, unless full cumulative
distributions on all outstanding Class C Preferred Units have been or
contemporaneously are authorized, declared and paid or authorized, declared and
a sum sufficient for the payment thereof set apart for such payment on the Class
C Preferred Units for all past Distribution Periods (including without
limitation, any Distribution Period that terminates on a Subject Date), no
distributions (other than distributions paid solely in Fully Junior Units) shall
be authorized, declared or paid or set apart for payment on any Junior Units or
Parity Units, nor shall any Junior Units or any Parity Units be redeemed,
purchased or otherwise acquired for any consideration or any monies paid to or
made available for a sinking fund for the redemption of any such Junior Units or
Parity Units by the Partnership except (i) by redemption or exchange of such
Units for Fully Junior Units, (ii) by
redemption or exchange of such Units by the General Partner for Shares ranking
junior to the Shares of Class C Preferred Stock as to dividends and as to
distributions of assets upon the General Partner's liquidation, dissolution and
winding up and (iii) to preserve the General Partner's status as a REIT or to
preserve the Partnership's status as a "partnership" for federal income tax
purposes.
(E) No distributions on the Class C Preferred Units shall be
authorized or declared by the General Partner or paid or set apart for payment
by the Partnership at such time as the terms and provisions of any agreement of
the General Partner or the Partnership, including any organizational document or
agreement relating to indebtedness of either of them, prohibits such
authorization, declaration, payment or setting apart for payment or provides
that such authorization, declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such authorization,
declaration or payment shall be restricted or prohibited by law. Notwithstanding
the foregoing, distributions on the Class C Preferred Units will accrue and be
cumulative whether or not the terms and provisions of any agreement of the
Partnership or the General Partner prohibits the payment of distributions,
whether or not the Partnership has earnings, whether or not there is Available
Cash or funds legally available for the payment of such distributions and
whether or not such distributions are authorized.
(F) All references to "accrued" or "accrued and unpaid"
distributions on the Class C Preferred Units (and all references of like import)
include, unless otherwise expressly stated or the context otherwise requires,
accumulated distributions, if any, on the Class C Preferred Units; and all
references to "accrued" or "accrued and unpaid" distributions on any class or
series of Units other than the Class C Preferred Units include, if, and only if,
such other class or series of Units provides for cumulative distributions and
unless otherwise expressly stated or the context otherwise requires, accumulated
distributions, if any, thereon.
3. Liquidation Preference.
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(A) In the event of any liquidation, dissolution or winding up
of the Partnership, whether voluntary or involuntary, before any payment or
distribution of the assets of the Partnership shall be made to or set apart for
the holders of any Distribution Junior Units, the holders of the Class C
Preferred Units shall be entitled to receive $25.00 per Class C Preferred Unit,
plus an amount equal to all distributions (whether or not earned or declared)
accumulated, accrued and unpaid thereon to, but not including, the date of
payment (such aggregate amount the "Class C Liquidation Preference"). Until the
holders of the Class C Preferred Units have been paid the Class C Liquidation
Preference in full, no payment or distribution will be made to any holder of any
Distribution Junior Units upon the liquidation, dissolution or winding up of the
Partnership. If, upon any such liquidation, dissolution or winding up of the
Partnership, the assets of the Partnership, or the proceeds thereof,
distributable to the holders of the Class C Preferred Units shall be
insufficient to pay in full the Class C Liquidation Preference and liquidating
payments on any other class or series of Distribution Parity Units, then such
assets, or the proceeds thereof, shall be distributed among the holders of the
Class C Preferred Units and the holders of such Distribution Parity Units
ratably in proportion to the full liquidating distributions (including, if
applicable, accumulated, accrued and unpaid distributions) to which they would
otherwise respectively be entitled.
(B) Subject to the rights of the holders of Distribution
Parity Units upon any liquidation, dissolution or winding up, whether voluntary
or involuntary, of the Partnership, after payment in full of the Class C
Liquidation Preference for all outstanding Class C Preferred Units shall have
been made to the holders of the Class C Preferred Units, as provided in Section
3(A), any class or series of Distribution Junior Units shall, subject to any
respective terms and provisions applying thereto, be entitled to receive any and
all assets, or the proceeds thereof, remaining to be paid or distributed, and
the holders of the Class C Preferred Units, as such, shall not be entitled to
share therewith. After payment of the full amount of the Class C Liquidation
Preference for each outstanding Class C Preferred Unit, the holders of the Class
C Preferred Units, as such, will have no right or claim to any of the remaining
assets of the Partnership. The preceding two sentences shall not affect the
right of the General Partner or any other holder of Class C Preferred Units to
share in any distribution or payment of the assets of the Partnership upon any
liquidation, dissolution or winding up, whether voluntary or involuntary, of the
Partnership as a result of its holding another class or series of Units.
(C) None of a consolidation or merger of the Partnership with
or into another entity, or a sale, lease, transfer or conveyance of all or
substantially all of the Partnership's property or business, shall be considered
a liquidation, dissolution or winding up of the Partnership.
(4) Redemption. If, and only if, shares of Class C Preferred Stock are
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redeemed (whether automatically or at the option of the General Partner or
otherwise), the Partnership shall, on the date set for redemption of such shares
of Class C Preferred Stock, redeem an equal number of Class C Preferred Units at
a redemption price equal to the product of (i) the number of Class C Preferred
Units being redeemed and (ii) the sum of $25.00 and all distributions (whether
or not earned or declared) accumulated, accrued and unpaid thereon to, but not
including, the date fixed for redemption of such Units.
(5) Ranking. Any class or series of Units shall be deemed to
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rank:
(A) prior to the Class C Preferred Units, as to the payment of
distributions and as to distributions of assets upon liquidation, dissolution or
winding up of the Partnership, if the express terms of such class or series of
Units provides that the holders of such class or series of Units shall be
entitled to the payment of distributions or the distribution of assets upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of the Class C Preferred Units;
(B) on a parity with the Class C Preferred Units as to the
payment of distributions and as to distributions of assets upon liquidation,
dissolution or winding up of the Partnership, whether or not the distribution
rates, distribution payment dates or redemption or liquidation prices per Unit
are different from those of the Class C Preferred Units, if such Units are Class
A Preferred Units or Class B Preferred Units (it being understood that the Class
A Preferred Units, the Class B Preferred Units and the Class C Preferred Units
are entitled to the payment of distributions and the distribution of assets upon
liquidation, dissolution or winding up in proportion to their respective amounts
of accrued, accumulated and unpaid distributions per
Unit or liquidation preferences, as the case may be, without preference or
priority one over the other) or if the express terms of such class or series of
Units provide that the holders of such class or series of Units and the Class C
Preferred Units shall be entitled to the payment of distributions and the
distribution of assets upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued, accumulated (if applicable) and unpaid
distributions per Unit or liquidation preferences, as the case may be, without
preference or priority one over the other;
(C) junior to the Class C Preferred Units, as to the payment
of distributions or as to the distributions of assets upon liquidation,
dissolution and winding up of the Partnership, as the case may be, if such class
or series of Units shall be Junior Units; and
(D) junior to the Class C Preferred Units, as to the payment
of distributions and as to the distribution of assets upon liquidation,
dissolution and winding up of the Partnership if such class or series of Units
shall be Fully Junior Units.
(6) Allocations. For purposes of maintaining the Capital Accounts and
in determining the rights of the General Partner, as holder of the Class C
Preferred Units, the Partnership's items of income, gain, loss and deduction
shall be allocated to the General Partner, as holder of the Class C Preferred
Units, and the other Partners in each taxable year (or portion thereof) in
accordance with Article VI of the Partnership Agreement as amended by this
Twenty-Fifth Amendment.
(7) Voting Rights. The holders of the Class C Preferred Units
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shall not have any voting or consent rights in respect of their partnership
interest represented by the Class C Preferred Units.
(8) Transfer Restrictions. Except as set forth in Section 11.2
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of the Partnership Agreement, the Class C Preferred Units shall not be
transferable.
