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Exhibit 2.14
AGREEMENT OF MERGER
OF
FIFTH SUBSIDIARY, L.P.
INTO
CORPORATE PROPERTY ASSOCIATES 5
AGREEMENT OF MERGER, dated as of _______________________, 19__ (this
"Agreement"), between FIFTH SUBSIDIARY, L.P., a California limited partnership
(the "Terminating Partnership"), and CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership ("CPA 5").
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 5 now desire to merge (the
"Merger"), following which CPA 5 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 5 (the "First GP"), and Carey Corporate Property, Inc., in its capacity as
a general partner of CPA 5 (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 5, 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 5, whereupon the separate existence of the Terminating
Partnership shall cease, and CPA 5 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 5 pursuant hereto;
(c) The First GP's and the Second GP's interests in CPA 5 shall be
converted into units of special partner interests in CPA 5, and the First GP
and Second GP shall automatically become special partners of CPA 5; and
(e) Each limited partner interest in CPA 5 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 36.74 "Listed Shares" or a limited partner interest in the
Surviving Partnership equal to such limited partner's limited partner interest
in CPA 5, and the holder of each such interest in CPA 5 shall automatically
become a member of the Company or remain a limited partner in CPA 5, as the
case may be.
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ARTICLE II
THE SURVIVING PARTNERSHIP
SECTION 2.01. Certificate of Limited Partnership. The Certificate of
Limited Partnership of CPA 5 shall continue to be the Certificate of Limited
Partnership of CPA 5, 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 5.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the Effective
Time, CPA 5 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
5 without further act or deed; thereafter, CPA 5, 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 5, as the Surviving Partnership, in accordance with
Section 15678.6(a) of the CRLPA.
SECTION 3.02. Further Assurances. If at any time CPA 5 shall consider
or be advised that any further assignment, conveyance or assurance is necessary
or advisable to vest, 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.
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ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.01 Conditions to the Obligations of Each Party. The
obligations of CPA 5 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 5 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 5;
(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.
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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 5 and, to the extent necessary, the First
GP, the Second GP, the limited partners of CPA 5, 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 5,
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 5, and by the Subsidiary GP, on behalf of the
Terminating Partnership; provided that after approval of the Merger by the
limited partners of CPA 5 holding a majority of the limited partner interests
of CPA 5, no amendment or waiver may be made that (i) materially and adversely
affects the rights of the limited partners of CPA 5 without the approval of the
limited partners of CPA 5 holding a majority of the limited partner interests
of CPA 5; (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 5 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.
(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
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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 5, or their representatives, are merged into
this Agreement, and this Agreement shall constitute the entire understanding
between the Terminating Partnership and CPA 5 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 the 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 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
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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 5
By: Carey Corporate Property, Inc., its
General Partner
By: __________________________________
Name: ___________________________
Title: ___________________________
By: __________________________________
William Polk Carey, its
General Partner
FIFTH SUBSIDIARY, L.P.
By: __________________________________
Name: ___________________________
Title: ___________________________
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