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EXHIBIT 2.17
AGREEMENT OF MERGER
OF
EIGHTH SUBSIDIARY, L.P.
INTO
CORPORATE PROPERTY ASSOCIATES 8, L.P.,
A DELAWARE LIMITED PARTNERSHIP
AGREEMENT OF MERGER, dated as of ________________, 19__ (this
"Agreement"), between EIGHTH SUBSIDIARY, L.P., a Delaware limited partnership
(the "Terminating Partnership"), and Corporate Property Associates 8, L.P., A
DELAWARE LIMITED PARTNERSHIP, a Delaware limited partnership ("CPA 8").
WITNESSETH:
WHEREAS, Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act, 6 Del.C. Section17-101, et seq. (the "Delaware RULPA"),
authorizes the merger of a Delaware limited partnership with and into another
Delaware limited partnership;
WHEREAS, the Terminating Partnership and CPA 8 now desire to merge
(the "Merger"), following which CPA 8 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 8 (the "First GP"), Eighth Carey Corporate Property, Inc., in its capacity
as a general partner of CPA 8 (the "Second GP"), and the requisite number of the
limited partners of CPA 8, 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 8, 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 Delaware
and make all other filings or recordings required by Delaware 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 8, whereupon the separate existence of the Terminating
Partnership shall cease, and CPA 8 shall be the surviving limited partnership of
the Merger (the "Surviving Partnership") in accordance with Section 17-211 of
the Delaware RULPA.
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 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 8 pursuant hereto;
(c) The First GP's interest in CPA 8 shall be converted into a
limited liability company interest in Carey Diversified LLC (the "Company")
consisting of 38,756 "Listed Shares" and units of special partner interest in
CPA 8, and the First GP shall automatically become a member of the Company and a
special partner of CPA 8;
(d) The Second GP's interest in CPA 8 shall be converted into a
limited liability company interest in the Company consisting of 155,023 "Listed
Shares" and units of special partner interest in CPA 8, and the Second GP shall
automatically become a member of the Company and a special partner of CPA 8; and
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(e) Each limited partner interest in CPA 8 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 69.55 "Listed Shares" or a limited partner interest in the
Surviving Partnership equal to such limited partners limited partner interest in
CPA 8, and the holder of each such interest in CPA 8 shall automatically become
a member of the Company or remain a limited partner in CPA 8, as the case may be
ARTICLE II
THE SURVIVING PARTNERSHIP
SECTION 2.01. Certificate of Limited Partnership. The Certificate of
Limited Partnership of CPA 8 shall continue to be the Certificate of Limited
Partnership of CPA 8, 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 8, L.P., a Delaware limited partnership.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the Effective
Time, CPA 8 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 8
without further act or deed; thereafter, CPA 8, 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 8, as the Surviving Partnership, in accordance with
Section 17-211 of the Delaware RULPA.
SECTION 3.02. Further Assurances. If at any time CPA 8 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 8 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 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 8;
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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 8 and, to the extent necessary, the
First GP, the Second GP, the limited partners of CPA 8, 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 8, 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 8, and by the Subsidiary GP, on behalf
of the Terminating Partnership; provided that after approval of the Merger by
the limited partners of CPA 8 holding a majority of the limited partner
interests of CPA 8, no amendment or waiver may be made that (i) materially and
adversely affects the rights of the limited partners of CPA 8 without the
approval of the limited partners of CPA 8 holding a majority of the limited
partner interests of CPA 8; (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 8 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 8, or their representatives, are merged into
this Agreement, and this Agreement shall constitute the entire understanding
between the Terminating Partnership and CPA 8 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 Delaware, 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 8, L.P., A
DELAWARE LIMITED PARTNERSHIP
By: Eighth Carey Corporate Property, Inc.,
its General Partner
By:
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Name:
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Title:
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By:
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William Polk Carey, its General
Partner
EIGHTH SUBSIDIARY, L.P.
By: Carey Diversified LLC, its General Partner
By:
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Name:
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Title:
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