Exhibit 3.3
Third Amendment to
the
Second Amended and Restated
Agreement
of Limited
Partnership
of
Highland Hospitality,
L.P.
This Third Amendment (the “
Amendment ”) to the Second Amended and Restated
Agreement of Limited Partnership of Highland Hospitality, L.P. (the
“ Partnership Agreement ”) is made as of
September 28, 2005 by HHC GP Corporation, a Maryland
corporation, as the general partner (the “ General
Partner ”) of Highland Hospitality, L.P., a Delaware
limited partnership (the “ Partnership ”), for
the purpose of amending the Partnership Agreement. Capitalized
terms used herein and not defined shall have the meanings given to
them in the Partnership Agreement.
WHEREAS , the board of directors (the “
Board ”) of Highland Hospitality Corporation (the
“ Company ”), acting through a duly appointed
pricing committee thereof, approved and adopted on
September 22, 2005 certain resolutions classifying and
designating 3,450,000 shares of Preferred Stock (as defined in the
Articles of Amendment and Restatement of the Company (the “
Articles of Amendment and Restatement ”)) as Series A
Preferred Stock (as defined below);
WHEREAS , the Company filed Articles Supplementary to
the Articles of Amendment and Restatement (the “ Articles
Supplementary ”) with the State Department of Assessments
and Taxation of Maryland on September 26, 2005, relating to
the Series A Preferred Stock;
WHEREAS , the Board, acting through a duly appointed
pricing committee thereof, authorized the issuance and sale in
concurrent underwritten public offerings (the “
Offerings ”) of (i) 3,000,000 shares of Series A
Preferred Stock and an option to purchase up to 450,000 additional
shares of Series A Preferred Stock to cover any over-allotments,
and (ii) 10,000,000 shares of the Company’s common
stock, par value $0.01 per share (the “ Common Stock
”), and an option to purchase up to 1,500,000 additional
shares of Common Stock to cover any over-allotments;
WHEREAS , the General Partner has determined that, in
connection with the issuance of the shares of Series A Preferred
Stock, it is necessary and desirable to amend the Partnership
Agreement to create additional Partnership Units having
designations, preferences and other rights which are substantially
the same as the economic rights of the Series A Preferred
Stock;
WHEREAS , Section 4.02(a)(ii) of the Partnership
Agreement requires the Company and the General Partner to
contribute the proceeds from the Offerings to the Partnership in
exchange for additional Partnership Units; and
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WHEREAS , the Company and the General Partner have
contributed to the Partnership the net proceeds of the Offerings
(the “ Capital Contributions ”), and the General
Partner has determined that, in connection with such Capital
Contributions, it is necessary and desirable to issue additional
Partnership Units to the Company and the General Partner and to
amend and restate Exhibit A to the Partnership Agreement to
reflect such issuance of additional Partnership Units.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the General Partner
hereby amends the Partnership Agreement as follows:
1. Article I of the Partnership
Agreement is hereby amended by adding the following
definitions:
“ Business Day ”
means any day other than a Saturday, Sunday or a day on which state
or federally chartered banking institutions in New York, New York
are not required to be open.
“ Distribution Payment
Date ” shall mean the 15th day (or, if such day is not a
Business Day, the next Business Day thereafter) of each February,
May, August, and November, commencing on November 15,
2005.
“ Distribution Period
” shall mean the respective periods commencing on and
including February 2, May 2, August 2 and
November 2 of each year and ending on and including the day
preceding the first day of the next succeeding Distribution Period
(other than the Distribution Period during which any Series A
Preferred Units shall be redeemed, which shall end on and include
the date the Series A Preferred Units are so redeemed).
“ Series A Preferred
Stock ” means the 7.875% Series A Cumulative Redeemable
Preferred Stock, $0.01 par value per share (Liquidation Preference
$25 per share) of the Company, with the preferences, liquidation
and other rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of
redemption of shares as described in the Articles Supplementary;
and
“ Series A Preferred
Units ” means the series of Partnership Units
representing units of Limited Partnership Interest designated as
the 7.875% Series A Cumulative Redeemable Preferred Units
(Liquidation Preference $25 per share), with the preferences,
liquidation and other rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and
conditions of redemption of units as described herein.
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2. In accordance with
Section 4.02(a) of the Partnership Agreement, set forth below
are the terms and conditions of the Series A Preferred Units hereby
established in consideration of the Company’s contribution to
the Partnership of the net proceeds from the issuance and sale of
the Series A Preferred Stock by the Company:
A. Designation and
Number.
A series of Partnership Units,
designated as Series A Preferred Units, is hereby established. The
number of Series A Preferred Units shall be 3,450,000.
B. Rank.
The Series A Preferred Units will,
with respect to distribution rights and rights upon liquidation,
dissolution or winding up of the Partnership, rank (i) senior
to all Partnership Interests issued by the Partnership other than
any Partnership Interest referred to in clauses (ii) and
(iii) of this sentence, (ii) on a parity with all
Partnership Interests issued by the Partnership in the future the
terms of which specifically provide that such Partnership Interests
rank on a parity with the Series A Preferred Units, and
(iii) junior to all Partnership Interests issued by the
Partnership in the future the terms of which specifically provide
that such Partnership Interests rank senior to the Series A
Preferred Units.
C. Distributions.
(a) Pursuant to Section 5.02 of
the Partnership Agreement and subject to the preferential rights of
the holders of any Partnership Interests ranking senior to the
Series A Preferred Units as to distributions, the holders of the
Series A Preferred Units shall be entitled to receive, out of
available cash, cumulative preferential cash distributions at the
rate of 7.875% per annum of the $25.00 liquidation preference
of the Series A Preferred Units (equivalent to the annual rate of
$1.96875 per Series A Preferred Unit). Such distributions shall
accrue and be cumulative from (and include) the date of original
issue and shall be payable quarterly in arrears on each
Distribution Payment Date, beginning on November 15, 2005 or,
if not a Business Day, t
