<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 23, 1998
REGISTRATION NO. 333-55807
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
HOST MARRIOTT, L.P.
HMC MERGER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT)
DELAWARE 7011 52-2095412
MARYLAND 7011 53-0085950
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
10400 FERNWOOD ROAD
BETHESDA, MARYLAND 20817
(301) 380-9000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
CHRISTOPHER G. TOWNSEND
GENERAL COUNSEL
HOST MARRIOTT, L.P.
HMC MERGER CORPORATION
10400 FERNWOOD ROAD
BETHESDA, MARYLAND 20817
(301) 380-9000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
J. WARREN GORRELL, JR., ESQ.
BRUCE W. GILCHRIST, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a) may determine.
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<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of Host REIT authorizes it, to the maximum
extent permitted by Maryland law, to obligate itself to indemnify and to pay
or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former director or officer or (b) any
individual who, while a director of Host REIT and at the request of Host REIT,
serves or has served another corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or any other
enterprise from and against any claim or liability to which such person may
become subject or which such person may incur by reason of his or her status
as a present or former Director or officer of Host REIT. The Bylaws of Host
REIT obligate it, to the maximum extent permitted by Maryland law, to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former director or officer
who is made party to the proceeding by reason of his service in that capacity
or (b) any individual who, while a director or officer of Host REIT and at the
request of Host REIT, serves or has served another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a trustee, director, officer or partner of such
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise and who is made a party to the
proceeding by reason of his service in that capacity, against any claim or
liability to which he may become subject by reason of such status. The
Articles of Incorporation and Bylaws also permit Host REIT to indemnify and
advance expenses to any person who served a predecessor of Host REIT in any of
the capacities described above and to any employee or agent of Host REIT or a
predecessor of Host REIT. The Bylaws require Host REIT to indemnify a director
or officer who has been successful, on the merits or otherwise, in the defense
of any proceeding to which he is made a party by reason of his service in that
capacity.
The MGCL permits a Maryland corporation to indemnify and advance expenses to
its directors, officers, employees and agents. Host REIT will indemnify its
present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by
them in connection with any proceeding to which they may be made a party by
reason of their service in those or other capacities unless it is established
that (a) the act or omission of the director or officer was material to the
matter giving rise to the proceeding and (i) was committed in bad faith or
(ii) was the result of active and deliberate dishonesty, (b) the director or
officer actually received an improper personal benefit in money, property or
services or (c) in the case of any criminal proceeding, the director or
officer had reasonable cause to believe that the act or omission was unlawful.
However, under Maryland law, Host REIT may not indemnify a director or officer
in a suit by or in the right of the corporation if such director or officer
has been adjudged to be liable to the corporation. The Bylaws of Host REIT
require it, as a condition to advancing expenses, to obtain (a) a written
affirmation by the director or officer of his good faith belief that he has
met the standard of conduct necessary for indemnification by Host REIT as
authorized by the Bylaws and (b) a written statement by or on his behalf to
repay the amount paid or reimbursed by Host REIT if it shall ultimately be
determined that the standard of conduct was not met.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
PAGE
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<S> <C>
FINANCIAL STATEMENT SCHEDULES
Report of Independent Public Accountants on Financial Statement Sched-
ules.................................................................... S-1
Schedule III--Real Estate and Accumulated Depreciation................... S-2
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
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<C> <S>
2.1* --Form of Agreement and Plan of Merger between the Partnerships and
the Merger Partnerships
3.1* --Form of Second Amended and Restated Agreement of Limited
Partnership of Host Marriott, L.P.
3.2* --Amended and Restated Agreement of Limited Partnership dated
December 31, 1997 of Atlanta Marriott Marquis II Limited
Partnership (incorporated by reference to Exhibit 2.a. of Atlanta
Marquis Limited Partnership's Form 10-K for the year ended December
31, 1997)
3.3* --Amended and Restated Agreement of Limited Partnership dated June
12, 1989, of Mutual Benefit Chicago Marriott Suite Hotel Partners,
L.P. (incorporated by reference to Exhibit 3.1 of Mutual Benefit
Chicago Marriott Suite Hotel Partners, L.P.'s Form 10 filed June
12, 1998)
3.4* --Second Amended and Restated Agreement of Limited Partnership dated
September 26, 1997 of Desert Springs Marriott Limited Partnership
(incorporated by reference to Exhibit 3.2 of Desert Springs Limited
Partnership's Form 10-Q for the quarter ended September 30, 1997)
3.5* --Second Amended and Restated Agreement of Limited Partnership dated
April 3, 1997 of Hanover Marriott Limited Partnership (incorporated
by reference to Exhibit 3(a) of Hanover Marriott Limited
Partnership's Form 10 filed June 12, 1998)
3.6* --Amended and Restated Agreement of Limited Partnership dated
February 7, 1990 of Marriott Diversified American Hotels, L.P.
(incorporated by reference to Exhibit 3(a) of Marriott Diversified
American Hotels, L.P.'s Form 10 filed June 12, 1998)
3.7* --Amended and Restated Agreement of Limited Partnership dated
November 27, 1985 of Marriott Hotel Properties Limited Partnership
(incorporated by reference to Exhibit 3.1 of Marriott Hotel
Properties Limited Partnership's Form 10 dated September 29, 1986)
3.8* --Amended and Restated Agreement of Limited Partnership dated June
14, 1996 of Marriott Hotel Properties II Limited Partnership
(incorporated by reference to Exhibit 3.1 of Marriott Hotel
Properties II Limited Partnership's Form 10-K for the year ended
December 31, 1996)
3.9* --Amended and Restated Agreement of Limited Partnership dated July
16, 1982 of Potomac Hotel Limited Partnership (incorporated by
reference to Exhibit 3 of Potomac Hotel Limited Partnership's Form
10-K for the year ended December 31, 1994)
3.10* --Certificate of Incorporation dated April 15, 1998 of HMC Real
Estate Corporation, the general partner of Host Marriott, L.P.
3.11* --Bylaws dated April 15, 1998 of HMC Real Estate Corporation, the
general partner of Host Marriott, L.P.
3.12* --Articles of Incorporation of HMC Merger Corporation (to be renamed
Host Marriott Corporation in connection with the REIT Conversion),
dated September 28, 1998.
3.13* --Form of Articles of Amendment and Restatement of Articles of
Incorporation of HMC Merger Corporation (to be renamed Host
Marriott Corporation in connection with the REIT Conversion)
3.14* --Bylaws of HMC Merger Corporation (to be renamed Host Marriott
Corporation in connection with the REIT Conversion), dated
September 28, 1998
3.15* --Form of Amendments to Amended and Restated Agreements of Limited
Partnership of the Partnerships
3.16* --Certificate of Formation dated July 28, 1998 of HMC Real Estate
LLC, the general partner of Host Marriott, L.P.
3.17* --Operating Agreement of HMC Real Estate LLC, the general partner of
Host Marriott, L.P.
4.1* --Form of Indenture between Host Marriott, L.P., as Issuer, and
Marine Midland Bank, as Indenture Trustee, and Form of 6.56%
Callable Note due December 15, 2005
4.3(i)* --Rights Agreement between Marriott Corporation and the Bank of New
York as Rights Agent dated February 3, 1989 (incorporated by
reference to Host Marriott Corporation Registration Statement No.
33-62444)
4.3(ii)* --First Amendment to Rights Agreement between Marriott Corporation
and Bank of New York as Rights Agent dated as of October 8, 1993
(incorporated by reference to Host Marriott Corporation
Registration Statement No. 33-51707)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
--------
<C> <S>
4.4* --Indenture by and among HMC Acquisition Properties, Inc., as Issuer,
HMC SFO, Inc., as Subsidiary Guarantors, and Marine Midland Bank, as
Trustee (incorporated by reference to Host Marriott Corporation
Registration Statement No. 333-00768)
4.5* --Indenture by and among HMH Properties, Inc., as Issuer, HMH
Courtyard Properties, Inc., HMC Retirement Properties, Inc.,
Marriott Financial Services, Inc., Marriott SBM Two Corporation, HMH
Pentagon Corporation and Host Airport Hotels, Inc., as Subsidiary
Guarantors, and Marine Midland Bank, as Trustee (incorporated by
reference to Host Marriott Corporation Registration Statement
33-95058)
4.6* --Indenture by and among HMH Properties, Inc., as Issuer, and the
Subsidiary Guarantors named therein, and Marine Midland Bank, as
Trustee (incorporated by reference to Host Marriott Corporation
Current Report on Form 8-K dated August 6, 1998)
4.7* --Form of Common Stock Certificate of HMC Merger Corporation (to be
renamed Host Marriott Corporation in connection with the REIT
Conversion)
4.8* --Indenture for the 6 3/4% Convertible Debentures, dated December 2,
1996, between Host Marriott Corporation and IBJ Schroeder Bank &
Trust Company, as Indenture Trustee (incorporated by reference to
Exhibit 4.3 of Host Marriott Corporation Registration Statement No.
333-19923)
4.9* --Amended and Restated Trust Agreement, dated December 2, 1996, among
Host Marriott Corporation, IBJ Schroeder Bank & Trust Company, as
Property Trustee, Delaware Trust Capital Management, Inc., as
Delaware Trustee, and Robert E. Parsons, Jr., Bruce D. Wardinski and
Christopher G. Townsend, as Administrative Trustees (incorporated by
reference to Exhibit 4.2 of Host Marriott Corporation Registration
Statement No. 333-19923)
4.10* --Guarantee Agreement, dated December 2, 1996, between Host Marriott
Corporation and IBJ Schroeder Bank & Trust Company, as Guarantee
Trustee (incorporated by reference to Exhibit 4.6 of Host Marriott
Corporation Registration Statement No. 333-19923)
5.1* --Opinion of Hogan & Hartson L.L.P. regarding legality of the OP
Units and the Notes being registered
5.2* --Opinion of Hogan & Hartson L.L.P. regarding legality of the Common
Shares being registered
8.1* --Opinion of Hogan & Hartson L.L.P. regarding certain tax matters
8.2 --Opinion of Hogan & Hartson L.L.P. regarding qualification of
Host REIT as a REIT and certain other tax matters
10.1* --Amended and Restated Credit Agreement dated as of June 19, 1997 and
Amended and Restated as of August 5, 1998 among Host Marriott
Corporation, Host Marriott Hospitality, Inc., HMH Properties, Inc.,
Host Marriott, L.P., HMC Capital Resources Corp., Various Banks,
Wells Fargo Bank, National Association, The Bank of Nova Scotia and
Credit Lyonnais New York Branch, as Co-Arrangers, and Bankers Trust
Company as Arranger and Administrative Agent (incorporated by
reference to Host Marriott Corporation Current Report on Form 8-K
dated September 11, 1998)
10.2* --Marriott Corporation Executive Deferred Compensation Plan dated as
of December 6, 1990 (incorporated by reference from Exhibit 19(i) of
the Host Marriott Corporation Annual Report on Form 10-K for the
fiscal year ended December 28, 1991)
10.3* --Host Marriott Corporation 1993 Comprehensive Stock Incentive Plan
effective as of October 8, 1993 (incorporated by reference from Host
Marriott Corporation Current Report on Form 8-K dated October 23,
1993)
10.4* --Distribution Agreement dated as of September 15, 1993 between
Marriott Corporation and Marriott International, Inc. (incorporated
by reference from Host Marriott Corporation Current Report on Form
8-K dated October 23, 1993)
10.5* --Amendment No. 1 to the Distribution Agreement dated September 15,
1993 by and among Host Marriott Corporation, Host Marriott Services
Corporation and Marriott International (incorporated by reference
from Host Marriott Corporation Current Report on Form 8-K dated
January 16, 1996)
10.6* --Distribution Agreement dated December 22, 1995 by and between Host
Marriott Corporation and Host Marriott Services Corporation
(incorporated by reference from Host Marriott Corporation Current
Report on Form 8-K dated January 16, 1996)
10.7* --Tax Sharing Agreement dated as of October 5, 1993 by and between
Marriott Corporation and Marriott International, Inc. (incorporated
by reference from Host Marriott Corporation Current Report on Form
8-K dated October 23, 1993)
10.8* --Assignment and License Agreement dated as of October 8, 1993 by and
between Marriott Corporation and Marriott International, Inc.
(incorporated by reference from Host Marriott Corporation Current
Report on Form 8-K dated October 23, 1993)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
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<C> <S>
10.9* --Amendment No. 1 to the Assignment and License Agreement dated as of
October 8, 1993 by and between Marriott International, Inc. and Host
Marriott Corporation (incorporated by reference from Host Marriott
Corporation Current Report on Form 8-K dated January 16, 1996)
10.10* --Tax Administration Agreement dated as of October 8, 1993 by and
between Marriott Corporation and Marriott International, Inc.
(incorporated by reference from Host Marriott Corporation Current
Report on Form 8-K dated October 23, 1993)
10.11* --Noncompetition Agreement dated as of October 8, 1993 by and between
Marriott Corporation and Marriott International, Inc. (incorporated
by reference from Host Marriott Corporation Current Report on Form
8-K dated October 23, 1993)
10.12* --Amendment No. 1 to the Noncompetition Agreement dated October 8,
1993 by and between Host Marriott Corporation and Marriott
International, Inc. (incorporated by reference from Host Marriott
Corporation Current Report on Form 8-K dated January 16, 1996)
10.13* --Form of Noncompetition Agreement between Host Marriott Corporation,
Host Marriott, L.P. Crestline Capital Corporation and other parties
named therein
#10.14* --Host Marriott Lodging Management Agreement--Marriott Hotels,
Resorts and Hotels dated September 25, 1993 by and between Marriott
Corporation and Marriott International, Inc. (incorporated by
reference to Host Marriott Corporation Registration Statement No.
33-51707)
10.15* --Employee Benefits and Other Employment Matters Allocation Agreement
dated as of December 29, 1995 by and between Host Marriott
Corporation and Host Marriott Services Corporation (incorporated by
reference from Host Marriott Corporation Current Report on Form 8-K
dated January 16, 1996)
10.16* --Tax Sharing Agreement dated as of December 29, 1995 by and between
Host Marriott Corporation and Host Marriott Services Corporation
(incorporated by reference from Host Marriott Corporation Current
Report on Form 8-K dated January 16, 1996)
10.17* --Marriott/Host Marriott Employees' Profit Sharing Retirement and
Savings Plan and Trust (incorporated by reference to Host Marriott
Corporation Registration Statement No. 33-62444)
10.18* --Contribution Agreement dated as of April 16, 1998 among Host
Marriott Corporation, Host Marriott, L.P. and the contributors named
therein, together with Exhibit B
10.19* --Amendment No. 1 to Contribution Agreement dated May 8, 1998
Marriott Corporation, Host Marriott, L.P. and the contributors named
therein
10.20* --Amendment No. 2 to Contribution Agreement dated May 18, 1998 among
Host Marriott Corporation, Host Marriott, L.P. and the contributors
named therein
#10.21* --Form of Lease
#10.22* --Form of Management Agreement for Full-Service Hotels (incorporated
by reference to Host Marriott Corporation Registration Statement No.
33-51707)
12.1* --Computation of Ratios of Earnings to Fixed Charges
21.1* --List of Subsidiaries of Host Marriott, L.P.
23.1* --Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1, Exhibit
5.2, Exhibit 8.1 and Exhibit 8.2)
23.2* --Consent of Arthur Andersen LLP
23.3* --Consent of American Appraisal Associates, Inc.
23.4* --Consents of Director nominees of HMC Merger Corporation (to be
renamed Host Marriott Corporation in connection with the REIT
Conversion)
25.1* --Statement of Eligibility and Qualification of Marine Midland Bank,
as Indenture Trustee (bound separately)
99.1* --Appraisal of Houston Marriott Medical Center Hotel by American
Appraisal Associates, Inc. dated March 1, 1998
99.2* --Appraisal of Seattle Marriott Hotel, Sea-Tac by American Appraisal
Associates, Inc. dated March 1, 1998
99.3* --Appraisal of Marriott's Desert Springs Resort & Spa by American
Appraisal Associates, Inc. dated March 1, 1998
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
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<C> <S>
99.4* --Appraisal of Raleigh Marriott Crabtree Valley by American Appraisal
Associates, Inc. dated March 1, 1998
99.5* --Appraisal of Atlanta Marriott Marquis by American Appraisal
Associates, Inc. dated March 1, 1998
99.6* --Appraisal of Greensboro-High Point Marriott by American Appraisal
Associates, Inc. dated March 1, 1998
99.7* --Appraisal of San Ramon Marriott at Bishop Ranch by American
Appraisal Associates, Inc. dated March 1, 1998
99.8* --Appraisal of Marriott Rivercenter by American Appraisal Associates,
Inc. dated March 1, 1998
99.9* --Appraisal of New Orleans Marriott Hotel by American Appraisal
Associates, Inc. dated March 1, 1998
99.10* --Appraisal of Santa Clara Marriott by American Appraisal Associates,
Inc. dated March 1, 1998
99.11* --Appraisal of Fairview Park Marriott by American Appraisal
Associates, Inc. dated March 1, 1998
99.12* --Appraisal of Detroit Marriott Livonia Hotel by American Appraisal
Associates, Inc. dated March 1, 1998
99.13* --Appraisal of Biscayne Bay Marriott Hotel & Marina by American
Appraisal Associates, Inc. dated March 1, 1998
99.14* --Appraisal of Marriott's Mountain Shadow Resort & Golf Club by
American Appraisal Associates, Inc. dated March 1, 1998
99.15* --Appraisal of Southfield Marriott Hotel by American Appraisal
Associates, Inc. dated March 1, 1998
99.16* --Appraisal of Marriott At Research Triangle Park by American
Appraisal Associates, Inc. dated March 1, 1998
99.17* --Appraisal of Tampa Marriott Westshore by American Appraisal
Associates, Inc. dated March 1, 1998
99.18* --Appraisal of Albuquerque Marriott by American Appraisal Associates,
Inc. dated March 1, 1998
99.19* --Appraisal of Fullerton Marriott Hotel by American Appraisal
Associates, Inc. dated March 1, 1998
99.20* --Appraisal of Dayton Marriott by American Appraisal Associates, Inc.
dated March 1, 1998
99.21* --Appraisal of Marriott's Harbor Beach Resort by American Appraisal
Associates, Inc. dated March 1, 1998
99.22* --Appraisal of Marriott's Orlando World Center by American Appraisal
Associates, Inc. dated March 1, 1998
99.23* --Appraisal of Chicago Marriott Suites O'Hare by American Appraisal
Associates, Inc. dated March 1, 1998
99.24* --Appraisal of Hanover Marriott Hotel by American Appraisal
Associates, Inc. dated March 1, 1998
99.25* --Form of Fairness Opinion of American Appraisal Associates, Inc.
99.26* --Questions and Answers
99.27* --Consent Form
99.28* --OP Unit Exchange Election Form
99.29* --Letter of Transmittal
</TABLE>
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* Previously filed.
# Agreement filed is illustrative of numerous other agreements to which the
Company is a party.
ITEM 22. UNDERTAKINGS.
The undersigned registrants hereby undertake as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
II-5
<PAGE>
The registrants undertake that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of a registrant pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
The undersigned registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
The undersigned registrants hereby undertake to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in
the registration statement when it became effective.
The undersigned hereby undertake to supply by means of a post-effective
amendment to Part II of the registration statement no later than 15 days prior
to the end of the Solicitation Period a copy of the signed tax opinion of
Hogan & Hartson L.L.P. with respect to qualification of HMC Merger Corporation
as a REIT and with respect to the treatment of the Operating Partnership as a
partnership for federal income tax purposes even if it were a "publicly traded
partnership" substantially in the form and to the effect of Appendix D to the
prospectus/consent solicitation statement included in the registration
statement.
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<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANTS HAVE
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON THEIR BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BETHESDA, STATE OF
MARYLAND, ON NOVEMBER 23, 1998.
Host Marriott, L.P.
By: HMC Real Estate LLC,
---------------------------------
AS GENERAL PARTNER OF HOST
MARRIOTT, L.P.
By: /s/ Robert E. Parsons, Jr.
-------------------------------
NAME: ROBERT E. PARSONS, JR.
TITLE: PRESIDENT
HMC Merger Corporation
By: /s/ Robert E. Parsons, Jr.
-------------------------------
NAME: ROBERT E. PARSONS, JR.
TITLE: PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President and
- ------------------------------------- Manager of HMC Real November 23, 1998
ROBERT E. PARSONS, JR. Estate LLC (Chief
Executive Officer
and Chief Financial
Officer); President
and Initial
Director of HMC
Merger Corporation
(Chief Executive
Officer and Chief
Financial Officer)
/s/ Donald D. Olinger Vice President of
- ------------------------------------- HMC Real Estate LLC November 23, 1998
DONALD D. OLINGER and HMC Merger
Corporation (Chief
Accounting Officer)
/s/ Christopher G. Townsend Vice President and
- ------------------------------------- Manager of HMC Real November 23, 1998
CHRISTOPHER G. TOWNSEND Estate LLC; Vice
President and
Initial Director of
HMC Merger
Corporation
</TABLE>
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<PAGE>
EXHIBIT 8.2
HOGAN & HARTSON L.L.P.
COLUMBIA SQUARE
555 13TH STREET, N.W.
WASHINGTON, DC 20004
NOVEMBER 20, 1998
HMC Merger Corporation
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, MD 20817
Ladies and Gentlemen:
We have acted as tax counsel to HMC Merger Corporation, a Maryland
corporation ("Host REIT"), Host Marriott Corporation, a Delaware corporation
("Host"), and Host Marriott, L.P., a Delaware limited partnership (the
"Operating Partnership"), in connection with the following series of related
transactions (which collectively are referred to as the "REIT Conversion"),
each of which is described more fully in the Prospectus/Consent Solicitation
Statement which is part of the Registration Statement filed with the
Securities and Exchange Commission by the Operating Partnership and Host REIT
on Form S-4 (File No. 333-55807) and which includes the Supplement for each
Partnership (as defined in (i) below) attached thereto (the "Consent
Solicitation") and in the Proxy Statement/Prospectus which is part of the
Registration Statement filed with the Securities and Exchange Commission by
Host REIT on Form S-4 (File No. 333-64793) (the "Prospectus"):
(i) the contribution of the following assets by Host and its subsidiaries
to the Operating Partnership, in exchange for a number of units of limited
partnership interest ("OP Units") and units of general partnership interest
of the Operating Partnership equal to the number of shares of Host common
stock outstanding at the time of the REIT Conversion, preferred partnership
interests in the Operating Partnership corresponding to any shares of Host
preferred stock outstanding at the time of the REIT Conversion, and the
assumption of certain liabilities of Host and its subsidiaries: (a) its
wholly owned full-service hotel assets; (b) its interests in Atlanta
Marriott Marquis II Limited Partnership, a Delaware limited partnership
("Atlanta Marquis"); Desert Springs Marriott Limited Partnership, a
Delaware limited partnership ("Desert Springs"); Hanover Marriott Limited
Partnership, a Delaware limited partnership ("Hanover"); Marriott
Diversified American Hotels, L.P., a Delaware limited partnership ("MDAH");
Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership ("MHP"); Marriott Hotel Properties II Limited Partnership, a
Delaware limited partnership ("MHP2"); Mutual Benefit Chicago Marriott
Suite Hotel Partners, L.P., a Rhode Island limited partnership ("Chicago
Suites"); and Potomac Hotel Limited Partnership, a Delaware limited
partnership ("PHLP") (collectively, the "Partnerships"); (c) its interests
in partnerships (other than the Partnerships) or limited liability
companies that own one or more full-service hotels and are not wholly owned
by Host or one of its subsidiaries (the "Private Partnerships" and together
with the Partnerships, the "Hotel Partnerships"); and (d) certain other
businesses and assets (excluding that portion of its shares of common stock
of Crestline Capital Corporation, a Delaware corporation ("Crestline"),
that Host will distribute to its existing shareholders, the common stock of
Crestline that Host or Host REIT will distribute to the Blackstone Entities
(as defined in (v) below) and the cash or other consideration that Host or
Host REIT will distribute to Host's or Host REIT's shareholders, and
certain other de minimis assets);
(ii) the recently completed refinancing and amendment of the debt
securities and certain credit facilities of Host;
(iii) the proposed mergers of subsidiaries of the Operating Partnership
(the "Merger Partnerships") into the Partnerships, in which mergers the
Partnerships will be the surviving entities (the "Mergers");
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(iv) the acquisition (whether by merger or otherwise) by the Operating
Partnership of certain Private Partnerships or interests therein;
(v) the acquisition by the Operating Partnership of ownership of, or
controlling interests in, twelve upscale and luxury full-service hotel
properties (the "Blackstone Hotels") and certain other related assets
(including a mortgage loan secured by an additional hotel) from The
Blackstone Group and a series of funds controlled by Blackstone Real Estate
Partners (collectively, the "Blackstone Entities") in exchange for the
assumption or repayment of debt, OP Units and shares of capital stock of
Crestline, and cash (the "Blackstone Acquisition");
(vi) the creation and capitalization of the one or more taxable
corporations in which the Operating Partnership will own 95% of the
economic interest but no voting stock and which will hold various assets
contributed by Host and its subsidiaries to the Operating Partnership (the
"Non-Controlled Subsidiaries"), with all of the voting stock, representing
5% of the economic interest, to be owned by the Host Marriott Statutory
Employee/Charitable Trust, the beneficiaries of which will be certain
employees of Host REIT, and a designated public charity, and possibly other
outside investors (the "Host Employee/Charitable Trust");
(vii) the distribution by Host of Crestline common stock to Host's
shareholders and by Host or Host REIT of cash or other consideration to
Host's or Host REIT's shareholders;
(viii) the merger of Host into Host REIT;
(ix) the leasing of the hotels in which the Operating Partnership has a
direct or indirect interest (the "Hotels") to subsidiaries of Crestline;
and
(x) the related transactions described in the Consent Solicitation and
the Prospectus and the other steps necessary or desirable to complete the
REIT Conversion.
In connection with the REIT Conversion, we have been asked to provide you
with the opinions on certain federal income tax matters set forth in this
letter. Capitalized terms used in this letter and not otherwise defined herein
have the meaning set forth in the Consent Solicitation.
BASES FOR OPINIONS
The opinions set forth in this letter are based on relevant current
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations thereunder (including proposed and temporary Treasury
Regulations), and interpretations of the foregoing as expressed in court
decisions, applicable legislative history, and the administrative rulings and
practices of the Internal Revenue Service (the "IRS"), including its practices
and policies in issuing private letter rulings, which are not binding on the
IRS except with respect to a taxpayer that receives such a ruling, all as of
the date hereof. These provisions and interpretations are subject to change,
which may or may not be retroactive in effect, that might result in material
modifications of our opinions. Our opinions do not foreclose the possibility
of a contrary determination by the IRS or a court of competent jurisdiction,
or of a contrary position taken by the IRS or the Treasury Department in
regulations or rulings issued in the future. In this regard, an opinion of
counsel with respect to an issue merely represents counsel's best judgment
with respect to the probable outcome on the merits with respect to such issue,
is not binding on the IRS or the courts, and is not a guarantee that the IRS
will not assert a contrary position with respect to such issue or that a court
will not sustain such a position asserted by the IRS.
In rendering the following opinions, we have examined such statutes,
regulations, records, agreements, certificates and other documents as we have
considered necessary or appropriate as a basis for such opinions, including
the following: (1) the Consent Solicitation and the Prospectus; (2) the form
of Second Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, proposed to be entered into at or about the time of the
Mergers; (3) the form of the Articles of Amendment and Restatement of Articles
of Incorporation of Host REIT and the Bylaws of Host REIT dated September 28,
1998; (4) the form of Articles of Incorporation of Crestline and the form of
Bylaws of Crestline; (5) the partnership agreements (or form thereof), each as
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amended to the date hereof and as proposed to be amended in connection with
the REIT Conversion, of each Partnership, each Merger Partnership and each
Private Partnership that will remain in existence after the REIT Conversion;
(6) the form of agreement of merger relating to the Mergers (including various
exhibits thereto) by and among Host REIT, the Operating Partnership, a
Partnership, and its corresponding Merger Partnership, as amended to the date
hereof; (7) each contribution agreement (or form thereof) relating to the
acquisition by the Operating Partnership of the non-Host interests in the
Private Partnerships; (8) the contribution agreement relating to the
Blackstone Acquisition, dated as of April 16, 1998, as amended, and the form
of the contribution agreement relating to the acquisition by the Operating
Partnership of Host's assets; (9) the form of lease pursuant to which the
Operating Partnership, its subsidiaries and its controlled partnerships will
lease virtually all of the Hotels to the Lessees and the term sheets regarding
each such lease setting forth the rental provisions of each such lease (the
"Leases"); (10) the form of organizational documents relating to the formation
and capitalization of the Host Employee/Charitable Trust; and (11) any other
documents as we deem necessary or appropriate. The opinions set forth in this
letter also are premised on certain written factual representations of Host
REIT, Host and the Operating Partnership contained in a letter to us dated as
of this date, regarding the organization, ownership and operations (including
the income, assets, businesses, liabilities, properties and accumulated
undistributed earnings and profits) of Host REIT, the Operating Partnership,
the Hotel Partnerships, the Subsidiary Partnerships, the Non-Controlled
Subsidiaries, the Host Employee/Charitable Trust, and Crestline and the
Lessees following the REIT Conversion (the "Representation Letter").
For purposes of rendering our opinions, we have not made an independent
investigation or audit of the facts set forth in any of the above-referenced
documents, including the Consent Solicitation, the Prospectus and the
Representation Letter. We consequently have relied upon representations in the
Representation Letter that the information presented in such documents or
otherwise furnished to us is accurate and complete in all material respects. We
are not aware, however, of any material facts or circumstances contrary to, or
inconsistent with, the representations we have relied upon as described herein,
or other assumptions set forth herein.
In this regard, we have assumed with your consent the following: (i) that
all of the representations and statements set forth in the documents that we
reviewed (including the Representation Letter) are true and correct and will
be true and correct at the time of the Mergers, that any representation or
statement made as a belief or made "to the knowledge of" or similarly
qualified is correct and accurate without such qualification, and that all of
the obligations imposed by any such documents on the parties thereto have been
and will continue to be performed or satisfied in accordance with their terms;
(ii) the genuineness of all signatures, the proper execution of all documents,
the authenticity of all documents submitted to us as originals, the conformity
to originals of documents submitted to us as copies, the authenticity of the
originals from which any copies were made and that any documents as to which
we have reviewed only a form will be duly executed at the time of the Mergers
without changes from the form reviewed by us; (iii) that each of Host REIT,
the Operating Partnership, the Hotel Partnerships, Crestline, the Non-
Controlled Subsidiaries, the Host Employee/Charitable Trust, the Lessees, and
the Subsidiary Partnerships have been (where applicable) and will continue to
be operated in the manner described in the relevant partnership agreement,
limited liability company operating agreement, articles of incorporation, or
other organizational documents and in the Consent Solicitation and the
Prospectus; (iv) that each of Host REIT, the Operating Partnership, the Hotel
Partnerships, Crestline, the Non-Controlled Subsidiaries, the Host
Employee/Charitable Trust, the Lessees, and the Subsidiary Partnerships will
be duly incorporated or organized and validly existing under the laws of the
state in which it was created at the time of the REIT Conversion; (v) as
represented by Host REIT and the Operating Partnership, that each of the
Leases will be enforced in accordance with its terms, and that each of the
lessors and the Lessees will act at all times in accordance with the terms
thereof; (vi) as represented by Host REIT and the Operating Partnership, that
there will be no agreements or understandings between Host REIT or the
Operating Partnership, on the one hand, and the Host Employee/Charitable
Trust, which owns 100% of the voting stock of each Non-Controlled Subsidiary,
or any of the Non-Controlled Subsidiaries themselves, on the other hand, that
are inconsistent with the Host Employee/Charitable Trust being considered to
be both the record and beneficial owner of more than 90% of the outstanding
voting stock of each of the Non-Controlled Subsidiaries; and (vii) as
represented by Host REIT and the Operating Partnership, no member of the
Marriott family, or any entity in which any member of the Marriott family owns
an interest, nor any other shareholder of Host REIT will own (determined by
taking into account
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the attribution rules under Section 318(a) of the Code, as modified by Section
856(d)(5) of the Code) at the time of the REIT Conversion or at any time
thereafter more than 9.8% by value of Host REIT. Any variation or difference
in the facts from those set forth in the documents that we have reviewed and
upon which we have relied (including, in particular, the Consent Solicitation,
the Prospectus and the Representation Letter) may adversely affect the
conclusions stated herein.
OPINIONS
Based upon, subject to, and limited by the assumptions and qualifications
set forth herein (including those set forth below), and subject to the
condition that the REIT Conversion be completed in the manner set forth in the
Consent Solicitation and the Prospectus, we are of the opinion that:
1. Host REIT, beginning with its first taxable year commencing after
consummation of the REIT Conversion, will be organized in conformity with
the requirements for qualification as a REIT, and its proposed method of
operation will enable it to meet the requirements for qualification and
taxation as a REIT under the Code.
2. The Leases will be respected as leases for federal income tax
purposes.
3. If the Operating Partnership were a "publicly traded partnership"
within the meaning of Section 7704 of the Code because OP Units were
readily tradable on the substantial equivalent of a secondary market after
the Mergers and the REIT Conversion, it would qualify as a partnership for
federal income tax purposes because, based upon factual representations
made by Host, Host REIT and the Operating Partnership as to the proposed
method of operation of the Operating Partnership after the Mergers and the
REIT Conversion, at least ninety percent (90%) of its income will consist
of "qualifying income," as defined in Section 7704(d) of the Code.
* * * * *
Host REIT's ability to qualify as a REIT will depend in particular upon
whether each of the Leases is respected as a lease for federal income tax
purposes. If any one of such Leases is not respected as a lease for federal
income tax purposes, the Company likely will fail to qualify as a REIT. The
determination of whether a lease is a lease for federal income tax purposes is
highly dependent on specific facts and circumstances. In addition, the rental
provisions of the Leases and the other terms thereof must conform with normal
business practice and not be used as a means to base the rent paid on the
income or profits of the Lessees. In delivering the opinion set forth above
that each of the Leases will be respected as a lease for federal income tax
purposes, and the opinion set forth above that Host REIT's proposed method of
operation (as described in the Representation Letter) should enable Host REIT
to meet the requirements for qualification and taxation as a REIT for its
first taxable year commencing following consummation of the REIT Conversion
and subsequent taxable years, we expressly rely upon, among other things, Host
REIT's representations as to various factual matters with respect to the
Leases, including representations as to the commercial reasonableness of the
economic and other terms of the Leases, the intent and economic expectations
of the parties to the Leases, the allocation of various economic risks between
the parties to the Leases, taking into account all surrounding facts and
circumstances, the conformity of the rental provisions and other terms of the
Leases with normal business practice, and the conclusion that such terms are
not being used as a means to base the rent paid on the income or profits of
the Lessees. We express no opinion as to any of the economic terms of the
Leases, the commercial reasonableness thereof, or whether the actual economic
relationships created thereby are such that the Leases will be respected for
federal income tax purposes or whether the rental and other terms of the
Leases conform with normal business practice (and are not being used as a
means to base the rent paid on the income or profits of the Lessees).
Host REIT's ability to qualify as a REIT also will depend upon Host REIT not
having at the close of its first taxable year for which its REIT election is
effective any "earnings and profits" accumulated in any prior taxable year of
Host REIT, Host, or any of its predecessors or subsidiaries (which would be
based on the
<PAGE>
consolidated earnings and profits of Host (including each of its predecessors)
accumulated from 1929, the first year that the predecessor of Host was a "C"
corporation, through and including Host's 1998 taxable year). The calculation
of "earnings and profits" depends upon a number of factual and legal
interpretations related to the activities and operations of Host and its
corporate affiliates during its entire corporate existence and is subject to
review and challenge by the IRS. Host and Host REIT have represented to us for
purposes of our opinion that Host REIT will have distributed by the close of
its first taxable year for which its REIT election is effective any "earnings
and profits" accumulated in any prior taxable year of Host REIT, Host, or any
of its predecessors or subsidiaries. There can be no assurance, however, that
the IRS will not examine the tax returns of Host and its affiliates for all
years prior to and including the REIT Conversion and propose adjustments to
increase their taxable income, which could result in Host REIT being
considered to have undistributed "earnings and profits" at the close of its
first taxable year for which its REIT election is effective, in which event
Host REIT would not qualify as a REIT for such year. We express no opinion as
to Host's current and accumulated "earnings and profits" or whether Host REIT
will be considered to have undistributed "earnings and profits" at the close
of its first taxable year for which its REIT election is effective.
Host REIT's qualification and taxation as a REIT depend upon Host REIT's
ability to meet on an ongoing basis (through actual annual operating results,
distribution levels, diversity of share ownership and otherwise) the various
qualification tests imposed under the Code and described in the Consent
Solicitation and the Prospectus. We have relied upon representations of Host
REIT and the Operating Partnership with respect to these matters (including
those set forth in the Representation Letter and in the Consent Solicitation
and the Prospectus) and will not review Host REIT's compliance with these
requirements on a continuing basis. Accordingly, no assurance can be given
that the actual results of Host REIT's operations, the sources of its income,
the nature of its assets, the level of its distributions to shareholders and
the diversity of its share ownership for any given taxable year will satisfy
the requirements under the Code for qualification and taxation as a REIT.
For a discussion relating the law to the facts, and the legal analysis
underlying the opinions set forth in this letter, we incorporate by reference
the discussions of federal income tax issues in the Section of the Consent
Solicitation under the heading "Federal Income Tax Consequences--Federal
Income Taxation of Host REIT Following the Mergers" and in the Section of the
Prospectus under the heading "Federal Income Tax Consequences--Federal Income
Taxation of Host REIT Following the Merger."
We assume no obligation to advise you of any changes in our opinion
subsequent to the delivery of this opinion letter.
This opinion letter addresses only the specific federal income tax matters
set forth above and does not address any other federal, state, local or
foreign tax consequences that may result from the REIT Conversion or any other
transaction undertaken in connection therewith. This opinion letter has been
prepared for your use in connection with the Consent Solicitation, the
Prospectus and the REIT Conversion and should not be quoted in whole or in
part or otherwise be referred to, or filed with or furnished to any
governmental agency or other person or entity, without the prior written
consent of this firm. We do, however, consent to the references to this
opinion letter and to Hogan & Hartson L.L.P. under the captions, "Legal
Matters" and "Federal Income Tax Consequences," in the Consent Solicitation
and the Prospectus (and under the caption, "Federal Income Tax Consequences,"
in the Supplements) and to the inclusion of (i) this opinion letter as an
exhibit to the Prospectus and (ii) the form of this opinion letter as an
exhibit to the Consent Solicitation. In giving this consent, we do not thereby
admit that we are an "expert" within the meaning of the Securities Act of
1933.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
Hogan & Hartson L.L.P.
