Exhibit 3.5
THIRTIETH AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
HOST MARRIOTT, L.P.
THIS THIRTIETH AMENDMENT TO THE SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF HOST MARRIOTT, L.P. (this "Thirtieth
Amendment"), dated as of February ___, 2002, but effective for all purposes as
of December 31, 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").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the General Partner issued shares of its common stock ("Common
Stock") pursuant to the exercise of outstanding stock options awarded under the
1997 Host Marriott Corporation and Host Marriott, L.P. Comprehensive Stock and
Cash Incentive Plan, as amended (the "Incentive Plan")* in the amounts of 6,252
(on various dates between October 1, 2001 and October 31, 2001, inclusive),
1,195 (on various dates between November 1, 2001 and November 30, 2001,
inclusive), and 10,280 (on various dates between December 1, 2001 and December
31, 2001, inclusive), and the General Partner acquired a corresponding number of
units of limited partnership interest ("Class A Units") in connection with such
issuances;
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* In connection with the formation of the Partnership and the contribution by
the General Partner of substantially all of its assets to the Partnership, the
Partnership agreed to assume and perform all of the obligations of the General
Partner to issue shares of Common Stock pursuant to existing outstanding
options, warrants and other similar rights (including, without limitation, the
conversion rights pursuant to the outstanding QUIPs and the corresponding
conversion rights with respect to the QUIPs Debenture and the issuance of shares
of Common Stock pursuant to the terms of the Incentive Plan) (the "Host Stock
Rights"). All of the shares of Common Stock issued in connection with the Host
Stock Rights are issued by the General Partner for the account of the
Partnership, with the Partnership in turn issuing to the General Partner a
corresponding number of Class A Units. For federal income tax purposes, the
Partnership shall be treated as having purchased the shares of Common Stock from
the General Partner for cash in an amount equal to the fair market value
thereof, with the General Partner then being considered to have paid such cash
to the Partnership as an additional capital contribution in exchange for a
corresponding number of Class A Units. In the event that a recipient of shares
of Common Stock in connection with the Host Stock Rights is required to
recognize compensation income for federal income tax purposes, such compensation
income shall be deemed to have been paid to such recipient of shares of Common
Stock by the Partnership (and not by the General Partner), and the Partnership
shall take into account in computing its taxable income any deduction that may
arise by reason of the holder's recognition of such compensation income.
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WHEREAS, pursuant to restricted stock agreements under which shares of
restricted stock of the General Partner ("Host Restricted Shares") were issued
to certain employees of the General Partner under the Incentive Plan, such
employees agreed to reinvest any cash dividends received on such Host Restricted
Shares in shares of Common Stock;
WHEREAS, on October 12, 2001, the General Partner paid a cash dividend
on its outstanding shares of Common Stock to its shareholders of record on
September 28, 2001, and, on or about October 12, 2001, 36,351 shares of Common
Stock were issued in connection with the reinvestment of such cash dividends by
employees holding Host Restricted Shares, with the General Partner acquiring a
corresponding number of Class A Units in connection with such issuance;
WHEREAS, on various dates between October 1, 2001 and December 31,
2001, the Limited Partners named on Annex A who were former limited partners of
the partnerships involved in the Partnership Rollup, pursuant to their Unit
Redemption Right, redeemed an aggregate of 62,426 Class A Units of the
Partnership, and the General Partner issued to such Limited Partners an equal
number of shares of Common Stock in exchange for such Class A Units, which Class
A Units are now held by the General Partner;
WHEREAS, on October 9, 2001, October 30, 2001, November 12, 2001 and
November 27, 2001, the Limited Partners named on Annex B who acquired their
Class A Units in connection with that certain Contribution Agreement, dated
April 16, 1998, among the General Partner, the Partnership and the Contributors
named therein (or are transferees of Limited Partners who acquired their Class A
Units in connection with such Contribution Agreement), pursuant to their Unit
Redemption Right, redeemed an aggregate of 437,648 Class A Units of the
Partnership, and the General Partner issued to such Limited Partners an equal
number of shares of Common Stock in exchange for such Class A Units, which Class
A Units are now held by the General Partner; and
WHEREAS, pursuant to Section 7.1A of the Partnership Agreement, the
General Partner desires to amend and restate Exhibit A to the Partnership
Agreement to give effect to the issuance and cancellation, and other changes to
the number and ownership, of outstanding Partnership Interests effectuated by
the transactions described in the preceding paragraphs.
NOW, THEREFORE, in consideration for the premises and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the General Partner hereby amends the Partnership Agreement, as
follows:
1. Exhibit A. Pursuant to Section 7.1.A of the Partnership
---------
Agreement, the General Partner hereby amends and restates Exhibit A to the
---------
Partnership Agreement as set forth in Exhibit A attached hereto to give effect
---------
to the issuance and cancellation, and other changes to the number and ownership,
of Partnership Interests effectuated by the transactions described in the
recitals set forth in this Thirtieth Amendment.
2. 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.
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[SIGNATURE PAGE APPEARS ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned has executed this Thirtieth
Amendment as of the ___ day of February, 2002, effective for all purposes as of
December 31, 2001.
HOST MARRIOTT CORPORATION, as
General Partner of Host Marriott,
L.P.
By:
--------------------------------
Name:
Title:
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ANNEX A
PUBLIC PARTNERSHIP STOCK REDEMPTIONS
Date of
Name of Limited Partner Partnership Redemption No. of Units
----------------------- ----------- ---------- ------------
Xxxxx Xxxxxxx MDAH 10/15/01 4,116
Xxxxx Xxxxxxx MDAH 10/15/01 4,116
Estate of Esta X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxx POT 10/15/01 379
Trust Co.
Estate of Xxxxxxx X. Xxxxxxx MHP1 10/16/01 6,199
Estate of Xxxxxxx X. Xxxxxxx MHP2 10/16/01 8,923
The Salvation Army POT 10/30/01 379
Xx. X.X. Xxxx MHP2 11/05/01 17,845
Xxxx and Xxxxxx Xxxxx MHP2 11/15/01 17,845
Community Foundation of the Jewish Federation of Orange County ATL 11/27/01 708
Xxxxxxx X. Xxxxxx Xx. DSP 12/24/01 1,537
Xxxxxxx and Xxxxxxx Xxxxxxx POT 12/28/01 379
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TOTAL 62,426
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ANNEX B
BLACKSTONE STOCK REDEMPTIONS
Date of
Name of Limited Partner Redemption No. of Units
----------------------- ---------- ------------
Blackstone Real Estate Holdings LP 10/09/01 65,204
Blackstone Real Estate Holdings II LP 10/09/01 75,045
Blackstone Real Estate Associates LL LP 10/09/01 192,170
Blackstone Family Real Estate Partnership LP 10/30/01 275
Blackstone Real Estate Management Associates II LP 10/30/01 955
BCP 11-Related Segregated Trust Fund 11/12/01 4,137
Blackstone Family Real Estate Partnership II LP 11/12/01 33,798
Blackstone Real Estate Management Associates II LP 11/12/01 10,469
Blackstone Family Real Estate Partnership LP 11/12/01 6,260
The LCP Group LP 11/27/01 49,335
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TOTAL REDEEMED UNITS 437,648
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