Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
HOST MARRIOTT TRUST
HOST MARRIOTT, L.P.
MERGER SUB
PARTNERSHIP
DATE:
TABLE OF CONTENTS
Page
----
1. PLAN OF MERGER........................................................ 2
1.1. The Merger....................................................... 2
1.2. Certificate of Merger; Effective Time............................ 2
1.3. Effects of Merger................................................ 3
1.4. Closing.......................................................... 3
1.5. Exchange and Conversion of Partnership Interests................. 3
1.6. Right to Exchange OP Units for Common Shares or Notes............ 4
1.7. No Fractional OP Units........................................... 5
1.8. No Appraisal Rights.............................................. 5
1.9. Approval of Limited Partners of the Partnership.................. 5
2. REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP..................... 5
2.1. Organization, Good Standing and Qualification.................... 6
2.2. Power, Authority and Enforceability.............................. 6
2.3. Capitalization................................................... 6
2.4. Noncontravention................................................. 7
2.5. Litigation....................................................... 7
2.6. SEC Documents; Financial Statements.............................. 7
2.7. No Material Adverse Changes...................................... 8
2.8. Title to Properties; Encumbrances................................ 9
2.9. Compliance with Laws and Material Agreements..................... 9
2.10. Environmental Compliance........................................ 9
2.11. Voting Requirements............................................. 10
2.12. Fairness Opinion................................................ 10
3. REPRESENTATIONS AND WARRANTIES OF HOST REIT, THE OPERATING
PARTNERSHIP AND MERGER SUB............................................ 10
3.1. Organization, Good Standing and Qualification.................... 10
3.2. Power, Authority and Enforceability.............................. 11
3.3. Capitalization; Notes............................................ 11
3.4. Noncontravention................................................. 12
3.5. Litigation....................................................... 13
3.6. SEC Documents; Financial Statements.............................. 13
3.7. No Material Adverse Changes...................................... 14
3.8. Compliance with Laws and Material Agreements..................... 14
3.9. NYSE Listing of Common Shares.................................... 14
-i-
Page
----
4. COVENANTS............................................................. 14
4.1. Conduct of Business by the Partnership........................... 14
4.2. Reasonable Efforts; Further Assurances; Cooperation;
Notifications; Tax Treatment and Reporting..................... 15
5. CONDITIONS TO CLOSING................................................. 16
5.1. Conditions to Each Party's Obligations........................... 16
5.2. Conditions to Obligations of the Partnership..................... 18
5.3. Conditions to Obligations of Host REIT, the Operating
Partnership and Merger Sub..................................... 18
6. TERMINATION, EXPENSES, AMENDMENT AND WAIVER........................... 19
6.1. Termination...................................................... 19
6.2. Expenses......................................................... 19
6.3. Amendment........................................................ 19
6.4. Extension; Waiver................................................ 19
7. MISCELLANEOUS......................................................... 20
7.1. Notices.......................................................... 20
7.2. Assignment and Binding Effect.................................... 20
7.3. Governing Law.................................................... 21
7.4. Severability..................................................... 21
7.5. Further Assurances............................................... 21
7.6. Exculpation...................................................... 21
7.7. Counterparts..................................................... 21
ii
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into
as of _______________ __, 1998 by and among Host Marriott Trust, a Maryland real
estate investment trust ("Host REIT"), Host Marriott, L.P., a Delaware limited
partnership (the "Operating Partnership"), [MERGER SUB], a Delaware limited
partnership and an indirect wholly-owned subsidiary of the Operating Partnership
and Host REIT ("Merger Sub"), and [PUBLIC LP], a [Delaware/Rhode Island] limited
partnership (the "Partnership").
WHEREAS, Host Marriott Corporation, a Delaware corporation ("Host"),
has adopted a plan to restructure its business operations so that it will
qualify as a real estate investment trust ("REIT") for federal income tax
purposes; and
WHEREAS, the Partnership is the owner of the full-service hotel[s]
described on SCHEDULE A attached hereto (the "Hotel[s]"); and
----------
WHEREAS, as part of the restructuring and other transactions that Host
determines in its discretion are necessary or desirable to permit or facilitate
the qualification of Host REIT as a REIT for federal income tax purposes (the
"REIT Conversion"), Host REIT will become the sole general partner of the
Operating Partnership; and
WHEREAS, as part of the REIT Conversion, the Operating Partnership
through Merger Sub is proposing to acquire by merger (the "Mergers") eight
public limited partnerships, including the Partnership; and
WHEREAS, HMC Real Estate LLC, a Delaware limited liability company and
the initial general partner of the Operating Partnership ("OPGP"), and
_______________, a Delaware corporation and the sole general partner of the
Partnership ("PGP"), have deemed it advisable for their respective limited
partnerships and the partners thereof that, upon the terms and subject to the
conditions contained herein, the Operating Partnership acquire the Partnership
through a merger (the "Merger") of Merger Sub with and into the Partnership with
the partnership interests in the Partnership ("Partnership Interests"),
including without limitation, the units of limited partnership interests therein
(the "Partnership Units"), being exchanged for and converted into units of
limited partnership interest in the Operating Partnership ("OP Units"); and
WHEREAS, for federal income tax purposes, it is intended that the
Merger, regardless of form, be treated as a contribution by the current holders
of Partnership Interests of such Partnership Interests to the Operating
Partnership in exchange for OP Units, as provided for herein, under Section 721
of the Internal Revenue
Code of 1986, as amended (the "Code"), and a distribution of such partnership
interests by the Partnership to its partners under Section 731 of the Code; and
WHEREAS, upon the terms and subject to the conditions contained
herein, the holders of OP Units received in the Merger will have the right to
elect to exchange such OP Units for common shares of beneficial interest, par
value $.01 per share, of Host REIT ("Common Shares") or unsecured 6.56% Callable
Notes due December 15, 2005 issued by the Operating Partnership ("Notes"); and
WHEREAS, the Partnership has received a fairness opinion relating to
the Merger.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the parties, each intending to be legally bound hereby,
agree as follows:
1. PLAN OF MERGER
1.1. THE MERGER
Upon the terms and subject to the conditions hereof, and in accordance
with the provisions of Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act (the "DRULPA"), Merger Sub shall be merged with and into the
Partnership at the Effective Time (as defined below), with the holders of
Partnership Interests receiving OP Units, as set forth in Sections 1.3 and 1.5
below, and with the partners in [MERGER SUB] becoming the sole partners in the
Surviving Partnership (as defined in the next sentence). The Partnership shall
be the surviving entity of the Merger (the "Surviving Partnership"), and the
separate existence of Merger Sub will cease. The Surviving Partnership shall
continue its existence as a limited partnership under the laws of the State of
Delaware, and its name shall continue to be "______________________ Limited
Partnership."
1.2. CERTIFICATE OF MERGER; EFFECTIVE TIME
Upon the terms and subject to the conditions hereof, at or prior to
the Closing (as defined herein), the parties shall execute a Certificate of
Merger (the "Certificate of Merger") substantially in the form attached hereto
as EXHIBIT A and the Partnership shall file the Certificate of Merger with the
---------
Office of the Secretary of State of the State of Delaware in accordance with the
provisions of Section 17-211(c) of the DRULPA. The Merger shall become
effective on the time and date specified in the Certificate of Merger filed with
the Secretary of State of the State of Delaware, or absent any such indication,
upon acceptance of filing (the "Effective Time"). The date on which the
Effective Time occurs is referred to herein as the "Effective Date."
2
1.3. EFFECTS OF MERGER
The Merger shall have the effects set forth in the DRULPA. The sole
general partner of the Surviving Partnership shall be ________________, which
shall be the general partner of Merger Sub until it withdraws or is removed in
accordance with the partnership agreement of the Surviving Partnership, and the
sole limited partner of the Surviving Partnership shall be ___________________,
the limited partner of Merger Sub. The Amended and Restated Agreement of Limited
Partnership, as amended by the Amendment to Amended and Restated Agreement of
Limited Partnership substantially in the form attached hereto as EXHIBIT B ,
shall be adopted as the partnership agreement of the Surviving Partnership and
shall continue in full force and effect after the Merger until further amended
in accordance with the terms and conditions thereof and applicable Delaware
law.
1.4. CLOSING
The closing of the Merger (the "Closing") will take place at 9:00
a.m., Eastern Time, on the date to be specified by the parties, which (subject
to satisfaction or waiver of the conditions set forth herein) shall be on the
first business day following the distribution by Host REIT to its shareholders
of shares of common stock of Crestline Capital Corporation received by Host REIT
in the merger of Host Marriott Corporation with and into Host REIT or such other
date to which the parties may agree (the "Closing Date"), at the offices of
Hogan & Hartson L.L.P., 555 13th Street, Washington, D.C. or such other place to
which the parties may agree.
1.5. EXCHANGE AND CONVERSION OF PARTNERSHIP INTERESTS
At the Effective Time, the outstanding Partnership Interests in the
Partnership shall be exchanged for and converted into units of limited
partnership interests in the Operating Partnership without the need for any
further action of the partners of the Partnership, and thereupon any
certificates representing any interests in the Partnership shall be deemed
canceled. Each holder of record of a Partnership Unit (including the general
partner and other subsidiaries of Host REIT or the Operating Partnership) at the
Effective Time shall be entitled to receive in the Merger in exchange for such
Partnership Unit a number of OP Units equal to the quotient determined by
dividing (a) the Exchange Value (as defined below) of such Partnership Unit by
(b) the OP Unit Price (as defined below). The general partner of the Partnership
shall be entitled to receive in the Merger in exchange for its general
Partnership Interest a number of OP Units equal to the quotient determined by
dividing (a) the Exchange Value (as defined below) of such Partnership Interest
(determined as described in the Consent Solicitation, as defined below) by (b)
the OP Unit Price (as defined below). Promptly following the twentieth (20th)
trading day after the Effective Date, the Operating Partnership shall notify
each such holder and the former general partner in writing of the number of OP
Units that such person received in the Merger. For
3
purposes of this Agreement, (a) "Exchange Value" shall have the meaning set
forth in the final Registration Statement/Consent Solicitation on Form S-4 filed
by the Operating Partnership, Host REIT and the Partnership (collectively with
the appendices, exhibits and supplements thereto, the "Consent Solicitation")
and shall be determined as of the Final Valuation Date (as defined in the
Consent Solicitation), and (b) "OP Unit Price" shall mean the average closing
price on the New York Stock Exchange (the "NYSE") of a Host REIT Common Share
for the first twenty (20) trading days after the Effective Date; provided,
however, if such 20-day average trading price is less than $_____, then the "OP
Unit Price" shall be equal to $____; and if such 20-day average trading price is
greater than $____, then the "OP Unit Price" shall be equal to $____.
1.6. RIGHTS TO EXCHANGE OP UNITS FOR COMMON SHARES OR NOTES
(a) Host REIT shall provide each holder of a Partnership Interest
receiving OP Units in the Merger (other than any subsidiary of Host REIT or the
Operating Partnership) the right to exchange all, but not less than
all, of the OP Units received in the Merger for Common Shares (the "Common
Shares Election"). If such holder makes the Common Shares Election by properly
completing and delivering to Host REIT the Consent Form (as defined in the
Consent Solicitation) and does not revoke such election by written notice to
Host REIT, at any time prior to the end of the Solicitation Period (as defined
in the Consent Solicitation), then, immediately following the twentieth (20th)
trading day after the Effective Date, such OP Units shall be tendered (or deemed
tendered) to Host REIT in exchange for an equal number of Common Shares.
Promptly following the twentieth (20th) trading day after the Effective Date,
Host REIT shall deliver or cause to be delivered to such holder or his designee
the certificates representing the Common Shares issued to such holder pursuant
to the Common Shares Election. The Operating Partnership shall have no
obligations under the Common Share Election.
(b) The Operating Partnership shall provide each holder of a
Partnership Interest receiving OP Units in the Merger (other than any subsidiary
of Host REIT or the Operating Partnership) the right to exchange all, but not
less than all, of the OP Units received in the Merger for a Note (the "Note
Election"). If a holder makes the Note Election by properly completing and
delivering to the Operating Partnership the Consent Form (as defined in the
Consent Solicitation) and does not revoke such election by written notice to the
Operating Partnership, at any time prior to the end of the Solicitation Period
(as defined in the Consent Solicitation), then, immediately following the
Effective Date, such OP Units shall be tendered (or deemed tendered) to the
Operating Partnership in exchange for Notes. The principal amount of each Note
shall be equal to the Note Election Amount (as defined in and determined as
described in the Consent Solicitation) of such holder's Partnership Units as of
the Final Valuation Date and the other terms of the Notes shall be as described
in the Consent Solicitation. The Notes shall be issued pursuant to an indenture
qualified
4
under the Trust Indenture Act of 1939, as amended, and substantially in the form
of the indenture included as an exhibit to the Consent Solicitation. Promptly
following the Effective Date, the Operating Partnership shall deliver or cause
to be delivered to such holder or his designee the Note issued to such holder
pursuant to the Note Election. Host REIT shall have no obligations under the
Note Election.
(c) Any holder of a Partnership Interest receiving OP Units in the
Merger who fails to timely and properly exercise the Common Share Election or
the Note Election pursuant to this SECTION 1.6 shall be deemed to have elected
to retain the OP Units received in the Merger, and shall not be entitled to
tender such OP Units to Host REIT for Common Shares or to the Operating
Partnership for Notes pursuant to this SECTION 1.6.
1.7. NO FRACTIONAL OP UNITS
The Operating Partnership will not issue any fractional OP Units upon
conversion of Partnership Interests pursuant to SECTION 1.5. Fractions of an OP
Unit otherwise issuable that are greater than or equal to 0.5 of an OP Unit will
be rounded up to the next largest whole number of OP Units. Fractions of an OP
Unit otherwise issuable that are less than 0.5 of an OP Unit will be rounded
down to the next smallest whole number of OP Units.
1.8. NO APPRAISAL RIGHTS
The holders of Partnership Interests are not entitled under applicable
law to appraisal rights as a result of the Merger.
1.9. APPROVAL OF LIMITED PARTNERS OF THE PARTNERSHIP
The Partnership and PGP promptly shall seek the requisite approval of
the limited partners of the Partnership to the Merger and the related proposed
amendments to the Partnership's partnership agreement substantially as
contemplated by the Consent Solicitation as and to the extent required by the
Partnership's partnership agreement and of any other matters reasonably
requested by Host REIT or the Operating Partnership to effectuate the
transactions contemplated by this Agreement (collectively, the "Limited Partner
Approvals").
2. REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP
The Partnership represents and warrants to Host REIT, the Operating
Partnership and Merger Sub as of the date of this Agreement:
5
2.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION
The Partnership has been duly formed and is validly existing as a
limited partnership in good standing under the DRULPA with partnership power and
authority to own, lease and operate its properties, conduct the business in
which it is engaged and perform its obligations under this Agreement. The
Partnership is duly qualified to transact business and is in good standing under
the laws of each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification except where the failure to so
qualify or be in good standing would not reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operations of the Partnership and its subsidiaries (if any) taken as a whole (a
"Partnership Material Adverse Effect"). The Partnership has furnished or made
available to Host REIT, the Operating Partnership and Merger Sub true and
complete copies of its Certificate of Limited Partnership and its partnership
agreement, as amended or supplemented to the date of this Agreement.
2.2. POWER, AUTHORITY AND ENFORCEABILITY
The Partnership has the requisite partnership power and authority to
enter into this Agreement and, subject to the requisite Limited Partner
Approvals, to consummate the Merger and other transactions contemplated by this
Agreement and each other agreement in connection therewith to which the
Partnership is a party. The execution and delivery of this Agreement by the
Partnership and the consummation by the Partnership of the transactions
contemplated by this Agreement and each other agreement in connection therewith
to which the Partnership is a party have been duly authorized by all necessary
action on the part of the Partnership, except for and subject to the Limited
Partner Approvals. This Agreement has been duly executed and delivered by the
Partnership and constitutes the legal, valid and binding agreement of the
Partnership enforceable against the Partnership in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) equitable principles of
general applicability relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.3. CAPITALIZATION
The only interests in the Partnership outstanding are the Partnership
Interests reflected in the Consent Solicitation, including, without limitation,
the Partnership Units. All of such Partnership Interests have been duly
authorized and validly issued, are fully paid and are not subject to any
preemptive or similar rights. The Partnership is not a party to or bound by any
agreement, put or commitment pursuant to which it is obligated to purchase,
redeem or otherwise
6
acquire any Partnership Interests or any options or securities convertible into
Partnership Interests.
2.4. NONCONTRAVENTION
Except as disclosed in the Partnership SEC Documents (as defined
below), the execution, delivery and performance of this Agreement by the
Partnership and the consummation by the Partnership of the Merger will not
violate the partnership agreement of the Partnership as proposed to be amended
and in effect as of the Effective Time substantially as described in the Consent
Solicitation, or conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or grant to
others any rights of termination, amendment, acceleration or cancellation of,
any other material agreement, indenture or instrument to which the Partnership
or any of its subsidiaries (if any) is a party or by which any of its property
or assets of the Partnership is bound or affected, or result in a violation of
any statute, law, ordinance, regulation, rule, judgment, decree or order
(collectively "Laws") of any federal, state or local government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency having jurisdiction (a "Governmental Entity") applicable to
the Partnership or any of its subsidiaries (if any) or by which any of its
property or assets is bound or affected, which conflict, default, grant or
violation would reasonably be expected to have a Partnership Material Adverse
Effect or which will be avoided by the Partnership obtaining the consent of a
third party (including, without limitation, the Limited Partner Approvals) at or
prior to the Effective Time.
2.5. LITIGATION
Except as disclosed in the Partnership SEC Documents (as defined
below), there is no suit, action or proceeding pending or, to the knowledge of
the Partnership, threatened against the Partnership or any of its subsidiaries
(if any) or of which any of its properties or assets is the subject which is not
covered by insurance and which, individually or in the aggregate, if determined
adversely to such party, would impair the ability of the Partnership to perform
its obligations under this Agreement or to consummate the Merger on
substantially the terms contemplated by this Agreement.
2.6. SEC DOCUMENTS; FINANCIAL STATEMENTS
The Partnership has filed all required reports, forms, statements and
other documents with the Securities and Exchange Commission (the "SEC") since
January 1, 1993 through the date hereof, including, without limitation, the
Consent Solicitation (the "Partnership SEC Documents"). The Partnership SEC
Documents, as of their respective filing dates, complied in all material
respects with the
7
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and, in each case, the rules and regulations promulgated
thereunder applicable to such Partnership SEC Documents. None of the
Partnership 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 Partnership SEC
Documents filed and publicly available prior to the date hereof and with respect
to which any such statement or omission would not reasonably be expected to have
a Partnership Material Adverse Effect. The consolidated financial statements of
the Partnership and its consolidated subsidiaries, if any, included in the
Partnership SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with 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 consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly presented, in accordance with the
applicable requirements of GAAP and the applicable rules and regulations of the
SEC, the consolidated financial position of the Partnership and its consolidated
subsidiaries, if any, in each case taken as a whole, as of the dates thereof and
the consolidated results of operations and cash flow for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
2.7. NO MATERIAL ADVERSE CHANGES
Since the date of the Partnership's most recent financial statements
included in the Consent Solicitation, there has not been (i) any material
adverse change in the business, financial condition or results of operations of
the Partnership and its subsidiaries (if any) taken as a whole (a "Partnership
Material Adverse Change"), nor has there been any occurrence or circumstance
affecting the Partnership or any of its subsidiaries (if any) that with the
passage of time would reasonably be expected to result in a Partnership Material
Adverse Change, or (ii) any damage, destruction or loss, whether or not covered
by insurance that has had or would reasonably be expected to have a Partnership
Material Adverse Effect, or (iii) any change in accounting methods, principles
or practices by the Partnership materially affecting its assets, liabilities or
business, except insofar as may have been disclosed in Partnership SEC Documents
or required by a change in GAAP.
8
2.8. TITLE TO PROPERTIES; ENCUMBRANCES
The Partnership and its subsidiaries (if any) have good and
marketable fee simple title or leasehold title, as applicable, to all real
property (the "Partnership Properties") identified in the Consent Solicitation
as being owned or leased by the Partnership, in each case free and clear of all
imperfections in title, easements, liens, mortgages, security interests, and
other encumbrances ("Encumbrances") except for mortgages and security interests
securing indebtedness reflected in the Consent Solicitation or Encumbrances
which do not materially detract from the current use of the Partnership
Properties or would not have a Partnership Material Adverse Effect.
2.9. COMPLIANCE WITH LAWS AND MATERIAL AGREEMENTS
Except as disclosed in any Partnership SEC Reports and except for
violations, noncompliances, defaults which would not reasonably be expected to
have a Partnership Material Adverse Effect, neither the Partnership nor any of
its subsidiaries (if any) (i) has violated or failed to comply with any
applicable Law of any Governmental Entity or (ii) is in default, and no event
has occurred which, with notice or lapse of time or both, would constitute such
a default, under any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject.
2.10. ENVIRONMENTAL COMPLIANCE
Except as disclosed in the Partnership SEC Documents, to the
Partnership's knowledge, (i) neither the Partnership nor any other Person (as
defined below) has caused or permitted the unlawful presence of any Hazardous
Materials (as defined below) on any of the Partnership Properties or any
unlawful spills, releases, discharges or disposal of Hazardous Materials to have
occurred or be presently occurring on or from the Partnership Properties as a
result of any construction on or operation and use of such Partnership
Properties and (ii) none of the Partnership Properties, the Partnership or any
of its subsidiaries (if any) have failed to comply in all material respects with
all Environmental Laws (as defined below), which presence, occurrence or failure
would have a Partnership Material Adverse Effect.
For the purposes of this Agreement, "Hazardous Materials" means any
of the following on, under from or affecting the Partnership Properties (as
defined herein) or any soil, water, vegetation, buildings, personal property,
persons or animals located thereon or any neighboring areas: asbestos-containing
materials, polychlorinated biphenyls, flammable materials, explosives,
radioactive materials, petroleum products and any materials, wastes, substances,
or chemicals that are deemed hazardous, toxic, a pollutant or a contaminant
under the Comprehensive
9
Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601, et seq.) the Hazardous Materials Transportation Act, as
-- ---
amended (49 U.S.C. Section 1801, et seq.), the Resource Conservation and
-- ---
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.), in the
-- ---
regulations adopted or publications promulgated pursuant thereto, or in any
other applicable Laws of any Governmental Entity in effect on the date hereof
relating to protection of public health, safety or the environment (each such
law, ordinance, rule or regulation, an "Environmental Law"). For purposes of
this Agreement, "Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or other
form of business or legal entity.
2.11. VOTING REQUIREMENTS
The affirmative consent of the limited partners as described in the
Consent Solicitation constitutes the Limited Partner Approvals and is the only
partnership consent necessary to approve this Agreement and Merger that has not
been obtained on or prior to the Effective Time.
2.12. FAIRNESS OPINION
The Partnership has received the opinion of American Appraisal
Associates substantially in the form of APPENDIX B to the Consent Solicitation.
3. REPRESENTATIONS AND WARRANTIES OF HOST REIT, THE OPERATING PARTNERSHIP AND
MERGER SUB
Host REIT, the Operating Partnership and Merger Sub represent and
warrant to the Partnership as of the date of this Agreement:
3.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION
Host REIT has been duly formed and is validly existing as a real
estate investment trust in good standing under Title 8 of the Maryland General
Corporation Law (the "MGCL") with trust power and authority to own, lease and
operate its properties, conduct the business in which it is engaged and perform
its obligations under this Agreement. Each of the Operating Partnership and
Merger Sub has been duly formed and is validly existing as a limited partnership
in good standing under the DRULPA with partnership power and authority to own,
lease and operate its properties, conduct the business in which it is engaged
and perform its obligations under this Agreement. Each of Host REIT, the
Operating Partnership and Merger Sub is duly qualified to transact business and
is in good standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a
10
material adverse effect on the business, financial condition or results of
operations of Host REIT, the Operating Partnership and their respective
subsidiaries taken as a whole (a "Host Material Adverse Effect"). Host REIT has
furnished or made available to the Partnership true and complete copies of its
Declaration of Trust and Bylaws, as amended or supplemented to the date of this
Agreement. As of the Effective Time, Host REIT's Declaration of Trust and
Bylaws and the Operating Partnership's partnership agreement shall be
substantially in the forms of the Amended and Restated Declaration of Trust, the
Bylaws and the Amended and Restated Agreement of Limited Partnership included as
exhibits to the Consent Solicitation. Each of the Operating Partnership and
Merger Sub has furnished or made available to the Partnership true and complete
copies of its Certificate of Limited Partnership and its partnership agreement,
as amended or supplemented to the date of this Agreement.
3.2. POWER, AUTHORITY AND ENFORCEABILITY
Each of Host REIT, the Operating Partnership and Merger Sub has the
requisite trust or partnership power and authority to enter into this Agreement
and, subject to obtaining certain approvals of their Board of Trustees,
shareholders or partners relating to the REIT Conversion (other than the Merger)
(the "REIT Conversion Approvals"), to consummate the Merger and other
transactions contemplated by this Agreement and each other agreement in
connection therewith to which Host REIT, the Operating Partnership or Merger
Sub, as the case may be, is a party. The execution and delivery of this
Agreement by each of Host REIT, the Operating Partnership and Merger Sub and the
consummation by each of Host REIT, the Operating Partnership and Merger Sub of
the transactions contemplated by this Agreement and each other agreement in
connection therewith to which Host REIT, the Operating Partnership or Merger
Sub, as the case may be, is a party have been duly authorized by all necessary
action on the part of Host REIT, the Operating Partnership and Merger Sub, as
the case may be, except for and subject to the REIT Conversion Approvals. This
Agreement has been duly executed and delivered by each of Host REIT, the
Operating Partnership and Merger Sub and constitutes the legal, valid and
binding agreement of each of Host REIT, the Operating Partnership and Merger Sub
enforceable against each of Host REIT, the Operating Partnership and Merger Sub
in accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, and (ii)
equitable principles of general applicability relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
3.3. CAPITALIZATION; NOTES
(a) As of the date of this Agreement, the authorized capitalization
of Host REIT and the Operating Partnership are described in the Consent
Solicitation.
11
(b) All outstanding Common Shares of Host REIT have been duly
authorized, validly issued, fully paid and are nonassessable and not subject to
any preemptive or similar rights, and the Common Shares that may be issued
pursuant to SECTION 1.6 hereof have been duly authorized for issuance, and upon
issuance will be duly and validly issued, fully paid and nonassessable.
(c) All outstanding OP Units have been duly authorized and validly
issued, are fully paid and are not subject to any preemptive or similar rights,
and the OP Units to be issued by the Operating Partnership in the Merger
pursuant to this Agreement have been duly authorized for issuance, and upon
issuance will be duly and validly issued and fully paid.
(d) Any Notes that may be issued by the Operating Partnership
pursuant to SECTION 1.6 hereof have been duly authorized for issuance, and upon
issuance, when duly authenticated and delivered by the Trustee in the manner
provided for in the Indenture, will constitute valid and binding obligations of
the Operating Partnership, entitled to the benefits of the Indenture and will be
enforceable against the Operating Partnership in accordance with their terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) equitable principles of
general applicability relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
3.4. NONCONTRAVENTION
Except as disclosed in the Host SEC Documents (as defined below), the
execution, delivery and performance of this Agreement by each of Host REIT, the
Operating Partnership and Merger Sub and the consummation by each of Host REIT,
the Operating Partnership and Merger Sub of the Merger will not violate the
Declaration of Trust or Bylaws of Host REIT or the partnership agreement of the
Operating Partnership or Merger Sub as in effect on the date hereof or as
proposed to be amended and in effect as of the Effective Time substantially as
described in the Consent Solicitation, or conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or grant to others any rights of termination, amendment, acceleration or
cancellation of, any other material agreement, indenture or instrument to which
any of Host REIT, the Operating Partnership, Merger Sub or any of their
respective subsidiaries is a party or by which any of its property or assets is
bound or affected, or result in a violation of any Law of any Governmental
Entity applicable to any of Host REIT, the Operating Partnership or Merger Sub
or any of their respective subsidiaries or by which any of its property or
assets is bound or affected, which conflict, default, grant or violation would
reasonably be expected to have a Host Material Adverse Effect or which will be
avoided by Host REIT, the Operating Partnership, Merger Sub or Host obtaining
the consent of a third party (including, without limitation, the REIT Conversion
Approvals) at or prior to the Effective Time.
12
3.5. LITIGATION
Except as disclosed in the Host SEC Documents (as defined below),
there is no suit, action or proceeding pending or, to the knowledge of any of
Host REIT, the Operating Partnership or Merger Sub, threatened against any of
Host REIT, the Operating Partnership, Merger Sub or any of their respective
subsidiaries or of which any of its properties or assets is the subject which is
not covered by insurance and which, individually or in the aggregate, if
determined adversely to such party, would impair the ability of any of Host
REIT, the Operating Partnership or Merger Sub to perform its obligations under
this Agreement or to consummate the Merger on substantially the terms
contemplated by this Agreement.
3.6. SEC DOCUMENTS; FINANCIAL STATEMENTS
Each of Host REIT, the Operating Partnership and Host has filed all
required reports, forms, statements and other documents with the SEC since
January 1, 1993 through the date hereof, including, without limitation, the
Consent Solicitation (the "Host SEC Documents"). The Host SEC Documents, as of
their respective filing dates, complied in all material respects with the
applicable requirements of the Securities Act and the Exchange Act and, in each
case, the rules and regulations promulgated thereunder applicable to such Host
SEC Documents. None of the Host 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 Host SEC Documents filed and publicly available prior to the
date hereof and with respect to which any such statement or omission would not
reasonably be expected to have a Host Material Adverse Effect. The consolidated
financial statements of Host REIT, the Operating Partnership and Host and their
consolidated subsidiaries included in the Host SEC Documents complied as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, 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
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly presented, in accordance with the applicable
requirements of GAAP and the applicable rules and regulations of the SEC, the
consolidated financial position of Host REIT, the Operating Partnership, Host
and their consolidated subsidiaries, in each case taken as a whole, as of the
dates thereof and the consolidated results of operations and cash flow for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
13
3.7. NO MATERIAL ADVERSE CHANGES
Since the date of the most recent financial statements of Host REIT
and the Operating Partnership included in the Consent Solicitation, there has
not been any material adverse change in the business, financial condition or
results of operations of Host REIT, the Operating Partnership and their
subsidiaries taken as a whole (a "Host Material Adverse Change"), nor has there
been any occurrence or circumstance affecting Host REIT, the Operating
Partnership or any of their subsidiaries that with the passage of time would
reasonably be expected to result in a Host Material Adverse Change.
3.8. COMPLIANCE WITH LAWS AND MATERIAL AGREEMENTS
Except as disclosed in any Host SEC Reports and except for
violations, noncompliances and defaults which would not reasonably be expected
to have a Host Material Adverse Effect, none of Host REIT, the Operating
Partnership, Merger Sub or any of their subsidiaries (i) has violated or failed
to comply with any applicable Law of any Governmental Entity or (ii) is in
default, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default under any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject.
3.9. NYSE LISTING OF COMMON SHARES
The Common Shares issuable under SECTION 1.6 hereof and the Common
Shares reserved for issuance upon redemption of OP Units issued in the Merger
have been approved for listing on the NYSE, subject to official notice of
issuance.
4. COVENANTS
4.1. CONDUCT OF BUSINESS BY THE PARTNERSHIP
From the date of this Agreement to the Effective Time, except as
required in connection with the Merger and the other transactions contemplated
by this Agreement or unless the Partnership obtains prior written consent from
Host REIT or the Operating Partnership in each instance, the Partnership will:
(a) Carry on its business as currently conducted and only in the
usual and ordinary course, and make no amendment (except as contemplated in the
Consent Solicitation) to its partnership agreement;
14
(b) Use its reasonable efforts to preserve its business organization
intact, to continue to operate the Partnership Properties in a good and
businesslike fashion consistent with past practices and to maintain the
Partnership Properties in good working order and condition in a manner
consistent with past practice;
(c) Not incur any material liability or make any material commitment
or enter into any other material transaction except in the ordinary and usual
course of business or pursuant to contracts existing on the date hereof;
(d) Not issue any Partnership Interests or options or rights to
purchase Partnership Interests and not purchase any of its Partnership Units;
(e) Not organize any subsidiary and not acquire or enter into an
agreement to acquire, by merger, consolidation or purchase of stock, interests
or assets, any business or entity;
(f) Not enter into, modify, amend or terminate any material agreement
with respect to any of the Partnership Properties, other than in the ordinary
course of business or pursuant to contracts existing on the date hereof, which
would encumber or be binding upon the Partnership Properties from and after the
Effective Time.
4.2. REASONABLE EFFORTS; FURTHER ASSURANCES; COOPERATION; NOTIFICATION;
TAX TREATMENT AND REPORTING
Each of the parties shall use its commercially reasonable efforts to
take, or cause to be taken or do, or cause to be done, all things necessary,
proper or advisable under applicable law to obtain all required regulatory
approvals and shall cooperate fully with each other and their respective
officers, trustees, directors, general partners, employees, agents, counsel,
accountants and other designees in connection with any steps required to be
taken as a part of its obligations under this Agreement. Each party shall do
such things as may be reasonably requested by the other parties in order to more
effectively consummate the Merger and the other transactions contemplated by
this Agreement, including, without limitation:
(a) The Partnership, Host REIT and the Operating Partnership shall
promptly make their respective required material filings and submissions with
Governmental Entities and shall take, or cause to be taken, all actions and do,
or cause to be done, all things necessary, proper or advisable under applicable
material Laws to (i) comply in all material respects with the provisions of the
Hart-Scott Rodino Antitrust Improvement Act of 1976, as amended ("HSR Act"), if
applicable, and (ii) obtain any other required material consent or approval of
any third party or any Governmental Entity necessary to perform their respective
obligations under this Agreement.
15
(b) The Partnership, Host REIT and the Operating Partnership shall
cooperate and keep each other informed regarding (i) any required HSR Act
filings, if required, and (ii) all filings with the SEC.
(c) If any claim, action, suit, investigation or other proceeding by
any Governmental Entity or other person is commenced which questions the
validity or legality of the Merger or any of the other transactions contemplated
by this Agreement or seeks damages in connection therewith, the parties shall
cooperate and use all reasonable efforts to defend against such claim, action,
suit, investigation or other proceeding and, if an injunction or other order is
issued in any such action, suit or other proceeding, to use commercially
reasonable efforts to have such injunction or other order lifted, and to
cooperate reasonably regarding any other impediment to the consummation of the
Merger or any of the other transactions contemplated by this Agreement.
(d) Each party shall give prompt written notice to the others of (i)
the occurrence, or failure to occur, of any event which occurrence or failure
would reasonably be expected to cause any representation or warranty of the
Partnership, Host REIT, the Operating Partnership or Merger Sub, as the case may
be, contained in this Agreement to be untrue or inaccurate in any material
respect at any time from the date of this Agreement to the Effective Time or
that will or is reasonably expected to result in the failure to satisfy any of
the conditions specified in ARTICLE 5 and (ii) any failure of the Partnership,
Host REIT, the Operating Partnership or Merger Sub, as the case may be, to
comply in any material respect with any covenant or other agreement to be
compiled with under this Agreement.
(e) Each party shall treat the Merger for federal income tax purposes
(including, without limitation, each party's tax reporting requirements) as a
contribution by the current holders of Partnership Interests of such Partnership
Interests to the Operating Partnership in exchange for OP Units in a transaction
in which no gain is recognized by such holders of Partnership Interests under
either Section 721 or Section 707 of the Code (other than as may be required
under Section 731 by reason of Section 752).
4.3. LIMITATION ON DIVIDENDS BY HOST AND HOST REIT
From the date of this Agreement to the Effective Date, Host and Host
REIT shall limit aggregate dividends to Host's stockholder's or Host REIT
shareholders (including for such purpose the Blackstone Entities' share (if any)
of any such distributions) to an amount (or value of securities or other
property, as determined in good faith by the Board of Directors of Host or the
Board of Trustees of Host REIT) equal to $_________.
5. CONDITIONS TO CLOSING
5.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS
The obligations of each party to effect the Merger and to consummate
the other transactions contemplated by this Agreement to occur at the Effective
Time shall be subject to satisfaction at or prior to the Effective Time of the
following conditions:
(a) The Limited Partner Approvals shall have been obtained.
(b) No Law shall have been enacted by any Governmental Entity that
makes the consummation of the Merger or any other material transaction
contemplated by this Agreement illegal.
(c) At the Effective Time, no temporary restraining order,
preliminary or permanent injunction or other order, legal restraint or
prohibition
16
issued by any Governmental Entity preventing the consummation of the Merger or
any of the other transactions contemplated by this Agreement shall be in effect.
(d) All consents, authorizations, orders and approvals of (or filing
or registration with) any Governmental Entity required in connection with the
consummation of the Merger, the other transactions contemplated by this
Agreement and the REIT Conversion shall have been obtained and any applicable
waiting period under the HSR Act shall have expired or been terminated, except
for such consents, authorizations, orders, approvals, filings and registrations
which the failure to obtain would not reasonably be expected to have a
Partnership Material Adverse Effect or a Host Material Adverse Effect.
(e) Host REIT's Common Shares shall have been listed on the NYSE and
the Common Shares issuable under SECTION 1.6 hereof and the Common Shares
reserved for issuance upon redemption of OP Units issued in the Merger shall
have been approved for listing on the NYSE, subject to official notice of
issuance.
(f) Shareholders owning at least 66 2/3% of the outstanding shares of
Host's common stock shall have approved the merger of Host into Host REIT and
such merger shall have been consummated.
(g) Host's Board of Directors shall have determined, based upon the
advice of counsel, that Host REIT can elect to be treated as a REIT for federal
income tax purposes effective no later than the first taxable year commencing
after the REIT Conversion, and Host REIT shall have received an opinion of
counsel substantially to such effect.
(h) All required third-party consents to the Mergers and the REIT
Conversion, including and consents to transfer material operating licenses and
permits and management agreements, shall have been received, except to the
extent that the failure to obtain such consents would not reasonably be expected
to have a Partnership Material Adverse Effect or a Host Material Adverse Effect.
(i) Host shall not have determined, in its discretion, that the
United States Congress has enacted legislation, or proposed legislation with a
reasonable possibility of being enacted, that would have the effect of (i)
substantially impairing the ability of Host REIT to qualify as a REIT or the
Operating Partnership to qualify as a partnership, (ii) substantially increasing
the federal tax liabilities of Host REIT resulting from the REIT Conversion or
(iii) substantially reducing the expected benefits to Host REIT resulting from
the REIT Conversion.
17
5.2. CONDITIONS TO OBLIGATIONS OF THE PARTNERSHIP
The obligations of the Partnership to effect the Merger and to
consummate the other transactions contemplated by this Agreement to occur at the
Effective Time shall be subject to satisfaction at or prior to the Effective
Time of each of the following further conditions, except to the extent that a
failure to fulfill any such condition would not reasonably be expected to have a
Host Material Adverse Effect:
(a) The representations and warranties of Host REIT, the Operating
Partnership and Merger Sub set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the
Effective Time, as though made on and as of the Effective Time, except to the
extent such representation or warranty is expressly limited by its terms to
another date.
(b) Host REIT, the Operating Partnership and Merger Sub shall have
performed in all material respects all obligations required to be performed by
them under this Agreement at or prior to the Effective Time.
(c) Since the date of this Agreement, there shall have been no Host
Material Adverse Change.
5.3. CONDITIONS TO OBLIGATIONS OF HOST REIT, THE OPERATING PARTNERSHIP AND
MERGER SUB
The obligations of Host REIT, the Operating Partnership and Merger
Sub to effect the Merger and to consummate the other transactions contemplated
by this Agreement to occur at the Effective Time shall be subject to
satisfaction at or prior to the Effective Time of each of the following further
conditions, except to the extent that a failure to fulfill any such condition
would not reasonably be expected to have a Partnership Material Adverse Effect:
(a) The representations and warranties of the Partnership set forth
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Effective Time, as though made on and as of
the Effective Time, except to the extent such representation or warranty is
expressly limited by its terms to another date.
(b) The Partnership shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Effective Time.
(c) Since the date of this Agreement, there shall have been no
Partnership Material Adverse Change.
18
6. TERMINATION, EXPENSES, AMENDMENT AND WAIVER
6.1. TERMINATION
This Agreement may be terminated at any time prior to the Effective
Time, whether before or after the limited partners of the Partnership have
approved the Merger or the Certificate of Merger has been filed with the
Delaware Secretary of State (provided the Effective Time has not yet occurred),
by mutual written agreement of the parties hereto.
6.2. EXPENSES
The Operating Partnership shall pay all costs and expenses of the
parties in connection with the Merger and the other transactions contemplated by
this Agreement.
6.3. AMENDMENT
This Agreement may be amended by the parties in writing by action of
their respective Board of Trustees or general partner at any time before or
after any Limited Partner Approvals are obtained and prior to the Effective
Time; provided, however, that, after the Limited Partner Approvals are obtained,
no such amendment shall be made which by law requires the further approval of
the limited partners of the Partnership with obtaining such further approval.
6.4. 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 parties, (b) waive any inaccuracies in the representations and warranties
of the other parties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) subject to the proviso of SECTION 6.3, 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 shall be valid only if set forth in an instrument in writing signed on
behalf of such party and then only to the extent expressly specified therein. No
delay or failure of any party to this Agreement to exercise or assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
19
7. MISCELLANEOUS
7.1. NOTICES
All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be delivered personally, sent by
overnight courier (providing proof of delivery) to the parties or sent by
telecopy (providing confirmation of transmission) at the following addresses or
telecopy numbers (or at such other address or telecopy number for a party as
shall be specified by like notice):
(a) if to the Partnership, to:
[PARTNERSHIP]
10400 Fernwood Road
Bethesda, MD 20817
Attention: Christopher G. Townsend
Facsimile: (301) 380-7574
(b) if to Host REIT, the Operating
Partnership or Merger Sub to:
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, MD 20817
Attention: Christopher G. Townsend
Facsimile: (301) 380-7574
with a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004
Attention: J. Warren Gorrell, Jr.
Bruce W. Gilchrist
Facsimile: (202) 637-5910
All notices shall be deemed given only when actually received.
7.2. ASSIGNMENT AND BINDING EFFECT
This Agreement and the rights and obligations of the parties hereunder
may not be assigned by any party without the prior written consent of
20
the other party hereto. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
7.3. GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed and construed in
accordance with the laws of the State of Delaware (excluding the choice of law
rules thereof).
7.4. SEVERABILITY
If any part of any provision of this Agreement shall be invalid or
unenforceable in any respect, such part shall be ineffective to the extent of
such invalidity or unenforceability only, without in any way affecting the
remaining parts of such provision or the remaining provisions of this Agreement.
7.5. FURTHER ASSURANCES
In connection with this Agreement and the transactions contemplated
hereby, each party shall execute and deliver any additional documents and
instruments and perform any additional acts that may be necessary or appropriate
or reasonably requested by another party to effectuate and perform the
provisions of this Agreement and such transactions.
7.6. EXCULPATION
This Agreement shall not impose any personal liability on any
shareholder, trustee, officer, employee or agent of Host REIT, and all Persons
shall look solely to the property of Host REIT for the payment of any claim
hereunder or for the performance of this Agreement. This Agreement also shall
impose no liability on any partner of the Partnership in the event the Operating
Partnership or Merger Sub suffers a loss as the result of an inaccuracy in any
representation or warranty made by the Partnership herein. None of Host REIT,
the Operating Partnership or Merger Sub shall have any recourse against any of
the partners of the Partnership in the event they suffer a loss as a result of
any inaccuracy in any representations and warranties contained herein.
7.7. COUNTERPARTS
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required. It shall not be necessary that the signatures
of, or on behalf of, each party, or that the signatures of all persons required
to bind any party, appear on each counterpart; but it shall be sufficient that
the signature of, or
21
on behalf of, each party, or that the signatures of the persons required to bind
any party, appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in making
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
[Signatures on Next Page]
22
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and Plan of Merger, or have caused this Agreement and Plan of Merger
to be duly executed on their behalf, as of the day and year first above written.
HOST MARRIOTT TRUST
By:
-------------------------------------------
Name:
Title:
HOST MARRIOTT, L.P.
By: HMC Real Estate L.L.C. its sole general
partner
By:
---------------------------------------
Name:
Title:
[MERGER SUB]
By: , its sole general partner
By:
---------------------------------------
Name:
Title:
[PARTNERSHIP]
By: , its sole general partner
By:
---------------------------------------
Name:
Title:
23