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Exhibit 2.11
AGREEMENT OF MERGER
OF
SECOND SUBSIDIARY, L.P.
INTO
CORPORATE PROPERTY ASSOCIATES 2
AGREEMENT OF MERGER, dated as of ________________, 19__ (this
"Agreement"), between SECOND SUBSIDIARY, L.P., a California limited partnership
(the "Terminating Partnership"), and CORPORATE PROPERTY ASSOCIATES 2, a
California limited partnership ("CPA 2").
WITNESSETH:
WHEREAS, Section 15678.7(a) of the California Revised Limited
Partnership Act (the "CRLPA"), authorizes the merger of a California limited
partnership with and into another California limited partnership;
WHEREAS, the Terminating Partnership and CPA 2 now desire to
merge (the "Merger"), following which CPA 2 shall be the surviving limited
partnership;
WHEREAS, Carey Diversified LLC, in its capacity as the general
partner of the Terminating Partnership (the "Subsidiary GP"), and Carey Property
Advisors LP, as the sole limited partner of the Terminating Partnership, have
approved this Agreement and the consummation of the Merger;
WHEREAS, William Polk Carey, in his capacity as a general
partner of CPA 2 (the "First GP"), and W.P. Carey & Co., Inc., in its capacity
as a general partner of CPA 2 (the "Second GP"), have approved this Agreement
and the consummation of the Merger:
NOW THEREFORE, the parties hereto hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.01. The Merger.
(a) On _______________, 199__, after satisfaction or, to the
extent permitted hereunder, waiver of all conditions to the Merger, as the
Subsidiary GP and the Second GP shall determine, CPA 2, which shall be the
surviving limited partnership, shall merge with the Terminating Partnership and
shall file a certificate of merger substantially in the form of Exhibit 1 hereto
(the "Certificate of Merger") with the Secretary of State of the State of
California and make all other filings or recordings required by California law
in connection with the Merger. The Merger shall become effective at such time as
is specified in the Certificate of Merger (the "Effective Time").
(b) At the Effective Time, the Terminating Partnership shall
be merged with and into CPA 2, whereupon the separate existence of the
Terminating Partnership shall cease, and CPA 2 shall be the surviving limited
partnership of the Merger (the "Surviving Partnership") in accordance with
Section 15678.5(b) of the CRLPA.
Section 1.02. Exchange of Interests. At the Effective Time:
(a) The limited partner in the Terminating Partnership
immediately prior to the Effective Time shall receive $100 in exchange for such
limited partner interest;
(b) The Subsidiary GP's interest in the Terminating
Partnership shall be converted into (i) a general partner interest in the
Surviving Partnership and (ii) one unit of limited partner interest in the
Surviving Partnership for each unit converted to a limited liability company
interest in the Company by a limited partner of CPA 2 pursuant hereto;
(c) The First GP's interest in CPA 2 shall be converted into a
limited liability company interest in Carey Diversified LLC (the "Company")
consisting of 1,306 "Listed Shares" and units of special partner interest in CPA
2, and the First GP shall automatically become a member of the Company and
special partner of CPA 2;
(d) The Second GP's interest in CPA 2 shall be converted into
a limited liability company interest in the Company consisting of 156,885
"Listed Shares" and units of special partner interest in CPA 2, and the Second
GP shall automatically become a member of the Company and a special partner of
CPA 2; and
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(e) Each limited partner interest in CPA 2 outstanding
immediately prior to the Effective Time shall, at the election of such limited
partner, be converted into either a limited liability company interest in the
Company consisting of 55.91 "Listed Shares" or a limited partner interest in the
Surviving Partnership, equal to such limited partner's limited partner interest
in CPA 2, and the holder of each such interest in CPA 2 shall automatically
become a member of the Company or remain a limited partner in CPA 2, as the case
maybe.
ARTICLE II
THE SURVIVING PARTNERSHIP
SECTION 2.01. Certificate of Limited Partnership. The
Certificate of Limited Partnership of CPA 2 shall continue to be the Certificate
of Limited Partnership of CPA 2, and, unless and until amended in accordance
with the applicable law, shall be the Certificate of Limited Partnership of the
Surviving Partnership.
SECTION 2.02. Partnership Agreement. The Amended and Restated
Agreement of Limited Partnership of the Surviving Partnership attached as
Exhibit __ hereto shall be the partnership agreement of the Surviving
Partnership unless and until amended in accordance with its terms and applicable
law. The name of the Surviving Partnership shall be Corporate Property
Associates 2.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the
Effective Time, CPA 2 shall continue in existence as the Surviving Partnership,
and without further transfer, succeed to and possess all of the rights,
privileges and powers of the Terminating Partnership, and all of the assets and
property of whatever kind and character of the Terminating Partnership shall
vest in CPA 2 without further act or deed; thereafter, CPA 2, as the Surviving
Partnership, shall be liable for all of the liabilities and obligations of the
Terminating Partnership, and any claim or judgment against the Terminating
Partnership may be enforced against CPA 2, as the Surviving Partnership, in
accordance with Section 15678.6(a) of the CRLPA.
SECTION 3.02. Further Assurances. If at any time CPA 2 shall
consider or be advised that any further assignment, conveyance or assurance is
necessary or advisable to vest,
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perfect or confirm of record in the Surviving Partnership the title to any
property or right of the Terminating Partnership, or otherwise to carry out the
provisions hereof, the proper representatives of the Terminating Partnership as
of the Effective Time shall execute and deliver any and all proper deeds,
assignments, and assurances and do all things necessary or proper to vest,
perfect or convey title to such property or right in the Surviving Partnership,
and otherwise to carry out the provisions hereof.
ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.01 Conditions to the Obligations of Each Party. The
obligations of CPA 2 and the Terminating Partnership to consummate the Merger
are subject to the satisfaction of the following conditions as of the Effective
Time;
(i) no provision of any applicable law or regulation
and no judgment, injunction, order or decree shall prohibit
the consummation of the Merger;
(ii) all actions by or in respect of or filings with
any governmental body, agency, official or authority required
to permit the consummation of the Merger shall have been
obtained;
(iii) approval of participation in the Consolidation
by a majority of the limited partners of CPA 2 and a majority
of the limited partners of CPA Partnerships representing an
aggregate Exchange Value of $200,000,000;
(iv) the fairness opinion of Robert A. Stanger & Co.,
Inc. regarding the actual allocation of the Listed Shares
based on the outcome of the votes of the limited partners of
each CPA Partnership; and
(v) the approval of the Listed Shares for listing on
the New York Stock Exchange.
ARTICLE V
TERMINATION
SECTION 5.01. Termination. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time:
(i) by mutual written consent of the Subsidiary GP,
on behalf of the Terminating Partnership, and the Second GP,
on behalf of CPA 2;
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(ii) if any conditions to the consummation of the
Merger as set forth in this Agreement are not satisfied; or
(iii) if the Consolidation is not consummated prior
to June 30, 1998 or such later date as mutually agreed in
writing by the parties hereto.
SECTION 5.02. Effect of Termination. If this Agreement is
terminated pursuant to Section 5.01, this Agreement shall become void and of no
effect with no liability on the part of either party hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. General Partner Authorization. The general
partner of the Surviving Partnership shall be authorized, at such time in its
sole discretion as it deems appropriate to execute, acknowledge, verify,
deliver, file and record, for and in the name of CPA 2 and, to the extent
necessary, the First GP, the Second GP, the limited partners of CPA 2, the
Subsidiary GP and the sole limited partner of the Terminating Partnership, any
and all documents and instruments including, without limitation, the Amended and
Restated Agreement of Limited Partnership of the Surviving Partnership, and
shall do and perform any and all acts required by applicable law which the
general partner of the Surviving Partnership deems necessary or advisable,
including, without limitation, delivering financial statements to the limited
partners of CPA 2, in order to effectuate the Merger.
SECTION 6.02. Waivers; Amendments. (a) Any provision of this
Agreement may, subject to applicable law, be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed by the Second GP, on behalf of CPA 2, and by the Subsidiary GP, on behalf
of the Terminating Partnership; provided that after approval of the Merger by
the limited partners of CPA 2 holding a majority of the limited partner
interests of CPA 2, no amendment or waiver may be made that (i) materially and
adversely affects the rights of the limited partners of CPA 2 without the
approval of the limited partners of CPA 2 holding a majority of the limited
partner interests of CPA 2; (ii) alters or changes (A) the amount or type of
consideration which such limited partners will receive in the Merger, (B) the
Amended and Restated Limited Liability Company Agreement of the Company, or (C)
the terms and conditions of this Agreement if such alteration or change
materially and adversely affects the limited partners of CPA 2 or the members of
the Company; or (iii) waives the condition to the Merger that CPA Partnerships
having an aggregate Exchange Value of $200,000,000 approve the Consolidation.
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(b) Except as provided in Section 6.02(a), no failure or delay
by any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 6.04. Integration. All prior or contemporaneous
agreements, contracts, promises, representations, and statements, if any,
between the Terminating Partnership and CPA 2, or their representatives, are
merged into this Agreement, and this Agreement shall constitute the entire
understanding between the Terminating Partnership and CPA 2 with respect to the
subject matter hereof.
SECTION 6.05. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party hereto.
SECTION 6.06. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of California, without
giving effect to principles of conflicts of law.
SECTION 6.07. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received the counterpart hereof signed by the other party hereto.
ARTICLE VII
DEFINED TERMS
Capitalized terms used in this Agreement not otherwise defined
herein shall have the meanings set forth below, except as otherwise expressly
indicated or limited by the context in which they appear in this Agreement.
"Consolidation" means the transaction whereby up to nine
subsidiary partnerships of the Company merge with and into some or all of the
CPA Partnerships.
"CPA Partnerships" means Corporate Property Associates, a
California limited partnership, Corporate Property Associates 2, a California
limited partnership, Corporate Property
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Associates 3, a California limited partnership, Corporate Property Associates 4,
a California limited partnership, Corporate Property Associates 5, a California
limited partnership, Corporate Property Associates 6, a California limited
partnership, Corporate Property Associates 7, a California limited partnership,
Corporate Property Associates 8, L.P., a Delaware limited partnership, and
Corporate Property Associates 9, L.P., a Delaware limited partnership or any of
them.
"Exchange Value" means the appraised value of a CPA
Partnership.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized
representatives as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 2
By: W. P. Carey & Co., Inc., its General
Partner
By:____________________________________
Name:_______________________________
Title:______________________________
By:____________________________________
William Polk Carey, its
General Partner
SECOND SUBSIDIARY, L.P.
By: Carey Diversified LLC, its General
Partner
By:____________________________________
Name:_______________________________
Title:______________________________
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