Exhibit 10.20
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT dated as of May 18,
1998 among HOST MARRIOTT CORPORATION, a Delaware corporation ("HMC"), HOST
MARRIOTT, L.P., a Delaware limited partnership ("Operating Partnership") and the
other Contributors (as defined below).
Background
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A. HMC, Operating Partnership, and the contributors named
therein (collectively, the "Contributors") are parties to that certain
Contribution Agreement dated as of April 16, 1998, as amended by that certain
First Amendment to Contribution Agreement dated May 8, 1998 (as amended, the
"Contribution Agreement"). All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Contribution Agreement.
B. HMC, Operating Partnership, and the Contributors have
agreed to amend the terms of the Contribution Agreement as provided herein.
Agreement
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1. Burlingame. (a) Pursuant to Section 1.4 of the
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Contribution Agreement, HTKG elects to treat the Burlingame Loan as a Mortgage
Loan under the Contribution Agreement. At Closing, Blackstone Real Estate
Holdings L.P., a Delaware limited partnership, Blackstone Real Estate Partners I
L.P., a Delaware limited partnership, Blackstone Real Estate Partners Two L.P.,
a Delaware limited partnership, Blackstone Real Estate Partners III L.P., a
Delaware limited partnership, Blackstone Real Estate Partners IV L.P., a
Delaware limited partnership, Blackstone RE Capital Partners L.P., a Delaware
limited partnership, Blackstone RE Capital Partners II L.P., a Delaware limited
partnership, Blackstone RE Offshore Capital Partners L.P., a Delaware limited
partnership (collectively, the "BREP I Partnerships"), which are the holders of
the Burlingame Loan, shall contribute the Burlingame Loan to the Operating
Partnership in exchange for Units. Notwithstanding anything to the contrary
contained in the Contribution Agreement, HTKG shall be deemed a Property Owning
Entity. Schedule 1 shall be amended to delete HTKG as a Contributor and to add
the BREP I Partnerships, BRE/Burlingame II L.L.C., a Delaware limited liability
company ("BRE/Burlingame II"), and HT-Burlingame Limited Partnership, a
California limited partnership ("HT-Burlingame") as Contributors in its place.
BRE/Burlingame II and HT-Burlingame shall be deemed Membership Interest
Contributors for purposes of the Contribution Agreement. Schedule 1.1(ii) shall
be amended to list HTKG as a
Property Owning Entity and to list BRE/Burlingame II and HT-Burlingame as the
partners in HTKG. The BREP I Partnerships, BRE/Burlingame II and HT-Burlingame
have executed this Second Amendment to evidence their agreement to be bound by
the terms of the Contribution Agreement with respect to the contribution of
their respective Mortgage Loan or partnership interests in HTKG to the Operating
Partnership. Schedule 1.1(a) of the Contribution Agreement is amended to delete
Hyatt Regency Hotel - Burlingame (San Francisco), California, from the list of
Asset Projects. Notwithstanding the provisions of Section 1.4 of the
Contribution Agreement, the portion of the Exchange Amount allocated to the
Burlingame Asset Project on Schedule 2.1(e) shall be apportioned between a value
for the Burlingame Loan equal to the Burlingame Purchase Price (as defined in
Section 1.4) and the balance allocated to the transfer of the partnership
interests of BRE/Burlingame II and HT-Burlingame in HTKG.
(b) The partnership interests in HTKG being contributed by
BRE/Burlingame II and HT-Burlingame shall be conveyed to the Operating
Partnership and one or more designees of the Operating Partnership so that HTKG
shall have no less than two partners upon consummation of the Closing. Exhibit C
to the Contribution Agreement is amended by deleting it in its entirety and
substituting therefor Exhibit C attached to this Second Amendment.
2. Swissotel. (a) Notwithstanding anything to the contrary
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contained in the Contribution Agreement, the parties to the Contribution
Agreement hereby agree that BRE/Swiss L.L.C., may, with the consent of HMC,
which consent will not be unreasonably withheld, elect to convert (the
"Swissotel Conversion Election") Swissotel - Atlanta, Georgia, Swissotel -
Boston, Massachusetts, Swissotel - Chicago, Illinois and Swissotel New York, New
York (collectively, the "Swissotel Projects") from Asset Projects to transfers
of Membership Interests (which term for purposes of the Contribution Agreement
shall be deemed to include transfers of partnership interests or membership
interests), provided that BRE/Swiss L.L.C. has obtained consent from Swissotel
Holdings, Inc. and the Management Company to the transfer of Membership
Interests and the lease of the Swissotel Projects in connection with the REIT
Conversion (collectively, the "Swissotel Consent"). If the Swissotel Conversion
Election has been exercised and the Swissotel Consent obtained, then
(i) BRE/Swiss L.L.C., a Delaware limited liability
company, shall be deemed a Property Owning Entity;
(ii) Schedule 1 shall be amended to delete BRE/Swiss L.L.C.
as a Contributor and to add Blackstone Real Estate Partners II L.P., a Delaware
limited partnership, Blackstone Real Estate Partners II.TE.1 L.P., a Delaware
limited partnership, Blackstone Real Estate Partners II.TE.2 L.P., a Delaware
limited partnership, Blackstone Real Estate Partners II.TE.3 L.P., a Delaware
limited partnership, Blackstone Real Estate Partners II.TE.4 L.P., a Delaware
limited
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partnership, Blackstone Real Estate Holdings II L.P., a Delaware limited
partnership (collectively, the "BREP II Partnerships") as Contributors in its
place;
(iii) Schedule 1.1(ii) shall be amended to list BRE/Swiss
L.L.C. as a Property Owning Entity and to list the BREP II Partnerships and
Swissotel Holding, Inc., as the members therein and to reflect that Swissotel
Holding, Inc., is a Nonparticipating Member;
(iv) the BREP II Partnerships shall be deemed Membership
Interest Contributors for purposes of the Contribution Agreement;
(v) Schedule 1.1(a) shall be amended to delete the
Swissotel Projects from the list of Asset Projects;
(vi) in accordance with Section 2.1, to reflect that only
99% of the membership interests in BRE/Swiss L.L.C. are being contributed to the
Operating Partnerships, the Exchange Amount shall be reduced by 1% of the
difference between (x) $633,000,000 (being the aggregate Exchange Amount
allocated to the Swissotel Projects on Schedule 2.1(e)) and (y) the aggregate
outstanding amount of Third Party Loans encumbering the Swissotel Projects on
the Closing Date (including accrued interest);
(vii) notwithstanding anything to the contrary in the
Contribution Agreement, the portion of the Exchange Amount allocated to the
Swissotel Membership Interests shall be paid only in Units and the other
consideration provided for in Section 2.1(b)(ii) and Section 2.1(b)(iii); and
(viii) Schedule 7.1(f) shall be amended to add the consent to
the transfer of the Management Interest by the Management Interest Contributor
by Swissotel Services L.L.C.
The BREP II Partnerships have executed this Second Amendment to Contribution
Agreement to evidence their agreement to be bound by the terms of the
Contribution Agreement with respect to the contribution of their respective
membership interests in BRE/Swiss L.L.C. to the Operating Partnership in the
event the Swissotel Conversion Election becomes effective.
(b) Notwithstanding anything to the contrary contained in
the Contribution Agreement, if the Swissotel Conversion Election never becomes
effective and the Swissotel Projects are contributed as Asset Projects, the
portion of the Exchange Amount allocated to the Swissotel Projects in the amount
of $633,000,000 less the amount of the Third Party Loans encumbering the
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Swissotel Projects as contemplated by Section 2.1(b)(ii)(A)(2) and 2.1(b)(iv)
shall be payable as follows: (i) 99% in the form of Units and the other
consideration provided for in Section 2.1(b)(ii)
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and Section 2.1(b)(iii) of the Contribution Agreement and (ii) 1% in cash (the
"Swissotel Cash Amount").
3. Exchange Amount Allocation. Section 2.1(e) of the
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Contribution Agreement is amended by deleting the reference to words "within 30
days after the date hereof" in the first sentence thereof and inserting the
words "on or before June 30, 1998" in lieu thereof.
4. SLSC Election. Pursuant to Section 2.1(b)(iii) of the
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Contribution Agreement, the Contributors make the following elections:
(i) with respect to 2,200,000 Units issued pursuant to
Section 2.1 (b)(ii), the Contributors elect not to receive any of the Non-SLSC
Amount and the SLSC Amount otherwise payable to them and to accept a
corresponding increase in the number of Units issued; and
(ii) with respect to the balance of all Units issued pursuant
to Section 2.1 (b)(ii), the Contributors elect to reduce the SLSC Amount and
accept a corresponding increase in the number of Units issued pursuant to
Section 2.1(b)(ii) in an amount equal to the minimum reduction necessary in the
SLSC Amount, if any, so that the Contributors are in compliance with the
limitation on ownership of SLSC common stock set forth in Section 2.2.
5. Cash Election. Pursuant to Section 2.1(b)(i) of the
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Contribution Agreement, the Cash Amount to be received by the Contributors as
part of the Exchange Amount shall be in the amount of the sum of (x) $72,000,000
and (y) the Swissotel Cash Amount; provided, however, if the Beverly Hills Loan
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is repaid prior to Closing, the amount set forth in clause (x) above shall be
deemed $17,000,000.
6. Revised Schedules. The Contribution Agreement shall be
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amended by substituting the Schedules attached to this Second Amendment as
Exhibit A in lieu of Schedule 1, Schedule 1.1(ii) and Schedule 1.1(a).
7. Operating Partnership Agreement. (a) Section 7.11 of the
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form of the Operating Partnership Agreement attached to the Contribution
Agreement as Exhibit A is amended by adding the following sentence at the end
thereof:
"The preceding sentence shall not apply to any limitation
or prohibition in this Agreement as to which the General Partner is expressly
authorized to take action (either in its discretion or in specified
circumstances) so long as the General Partner acts within the scope of such
authority."
(b) Section 7.4.B of the Operating Partnership Agreement
attached as Exhibit A is amended by deleting it in its entirety and substituting
therefor Exhibit B attached to this Second Amendment.
8. Closing Date Distributions. The parties to the
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Contribution Agreement acknowledge that one or more of the Contributors may
distribute to its
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members or partners a portion of the Property. Any such distribution shall not
be effective unless and until the Closing under the Contribution Agreement shall
occur and shall not in any manner relieve any of the Contributors of their
respective obligations under the Contribution Agreement. In the event of any
such distribution, the portion of the Property so distributed shall be
contributed by the members or partners receiving such distribution directly to
the Operating Partnership or its designee.
9. Contribution Agreement Exhibit. Notwithstanding anything
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to the contrary contained in the Contribution Agreement, to the extent the
Exhibits to the Contribution Agreement have not previously been agreed to by the
parties thereto, HMC and the Contributors shall in good faith agree upon the
form of all such Exhibits on or before June 30, 1998.
10. Ratification. The Contribution Agreement, as amended
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hereby, is and shall remain in full force and effect and is ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amendment as of the date written above.
HOST MARRIOTT CORPORATION
By: /s/ C.G. TOWNSEND
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Name: C.G. Townsend
Title: Senior Vice President
HOST MARRIOTT, L.P.
By: HMC Real Estate Corporation, its
general partner
By: /s/ C.G. TOWNSEND
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Name: C.G. Townsend
Title: Senior Vice President
HTKG DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP
By: BRE/Burlingame II, L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
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BRE/BURTON WAY L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/SWISS L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/LAFAYETTE INC.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/SWISS MANAGEMENT L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/HT L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/CAMBRIDGE L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/GRAND L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
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BRE/AMELIA PARTNERS L.P.
By: BRE/Amelia L.L.C., general partner
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/AMELIA L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
OLS HOTEL PARTNERS L.P.
By: BRE/Logan Hotel Space Inc.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
RTZ MANAGEMENT CORP.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/RITZ BOSTON, L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
BRE/Burlingame II L.L.C.
By: /s/ JONATHAN D. GRAY
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Jonathan D. Gray
Vice President
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HT-BURLINGAME LIMITED PARTNERSHIP
By: HT-Burlingame, Inc.
By: /s/ GLEN MILLER
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Name: Glen Miller
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS I
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS II
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
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BLACKSTONE REAL ESTATE PARTNERS III
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS IV
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE RE CAPITAL PARTNERS
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
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BLACKSTONE RE CAPITAL PARTNERS II
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general
partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE RE OFFSHORE CAPITAL
PARTNERS L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates L.P., a
Delaware limited partnership, general partner
By: BREA L.L.C., a Delaware limited
liability company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE HOLDINGS
L.P., a Delaware limited partnership,
By: BREA L.L.C., a Delaware limited liability
company, general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS II
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership, general
partner
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By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership, its general
partner
By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS
II.TE.1 L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership, its general
partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership, its general
partner
By: BREA II L.L.C., a Delaware limited liability
company, its general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS
II.TE.2 L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership, its general
partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership, its
general partner
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By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS
II.TE.3 L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership, its general
partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership, its
general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS
II.TE.4 L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership, its general
partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership, its general
partner
By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ GARY M. SUMERS
------------------
Name: Gary M. Sumers
Title: Vice President
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BLACKSTONE REAL ESTATE HOLDINGS
II L.P., a Delaware limited partnership
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ GARY M. SUMERS
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Name: Gary M. Sumers
Title: Vice President
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