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Exhibit 2.1(a)
PLAN AND AGREEMENT OF MERGER
Plan and Agreement of Merger (the "Agreement"), dated as of this 28th
day of August, 1997, between IHP Holdings Partnership, L.P., a Pennsylvania
limited partnership (the "Surviving Partnership"), and Interstate Hotels
Partners, L.P., a Pennsylvania limited partnership (the "Merger Partnership").
The Surviving Partnership and the Merger Partnership are sometimes hereinafter
referred to individually as a "Constituent Entity" and collectively as the
"Constituent Entities."
RECITALS:
WHEREAS, the Constituent Entities desire to merge into a single entity
as hereinafter specified;
WHEREAS, the General Partner of the Merging Partnership has determined
that it is advisable and in the best interests of the Merging Partnership to
merge with and into the Surviving Partnership upon the terms and subject to the
conditions herein provided;
WHEREAS, the General Partner of the Merging Partnership has, by
resolutions duly adopted, approved this Agreement and directed that it be
executed by the undersigned officer;
WHEREAS, the General Partner of the Surviving Partnership has
determined that it is advisable and in the best interests of the Surviving
Partnership to merge with the Merging Partnership upon the terms and subject to
the conditions herein provided;
WHEREAS, the General Partner of the Surviving Partnership has, by
resolutions duly adopted, approved this Agreement and directed that it be
executed by the undersigned officer;
WHEREAS, for federal income tax purposes, the merger will be treated
as if the Merging Partnership transfers its assets to the Surviving Partnership
in return for partnership interests in the Surviving Partnership and the
Merging Partnership thereupon distributes such partnership interests in the
Surviving Partnership to its partners in accordance with Rev. Rul. 68-289,
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1968-1 C.B. 314 and the Internal Revenue Code of 1986, as amended; and
WHEREAS, the partners of the Surviving Partnership have entered into
an Agreement of Limited Partnership dated as of July 9, 1997, as amended and
restated as of August 28, 1997, and have granted to the General Partner the
power to effect a merger of the Surviving Partnership.
NOW, THEREFORE, in consideration of the mutual covenants, agreement
and provisions set forth herein, each of the Constituent Entities hereby agrees
as follows:
Section 1. The name of the Surviving Entity is IHP Holdings
Partnership, L.P. and following the merger its name shall remain IHP Holdings
Partnership, L.P.
Section 2. The name and place of organization of each Constituent
Entity are as follows:
Name State of Organization
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IHP Holdings
Partnership, L.P. Pennsylvania
Interstate Hotels
Partners, L.P. Pennsylvania
Section 3. The Surviving Partnership hereby merges the Merging
Partnership, and the Merging Partnership hereby is merged, into the Surviving
Partnership.
Section 4. The Agreement of Limited Partnership of the Surviving
Partnership shall be amended and restated as a result of the merger in the form
attached hereto as Exhibit A.
Section 5. The manner of converting the outstanding limited
partnership interests of the Merging Partnership into interests of the
Surviving Partnership shall be as follows: each Class A limited partnership
interests of the Merging Partnership shall be converted into, and become
exchanged for, a unit of limited partnership interest in the Surviving
Partnership representing a .4233% interest in the Surviving Partnership (and in
the aggregate representing a 16.5093% limited partnership interest in the
Surviving Partnership). The Class B limited
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partnership interests of the Merging Partnership will be exchanged for a
limited partnership interest in an entity which will have a 56.6792% limited
partnership interest in the Surviving Partnership and the General Partner's
interest in the Merging Partnership will be exchanged for a .8689% limited
partnership interest in the Limited Partnership.
Section 6. The terms and conditions of the merger are as follows:
(a) The members of the Surviving Partnership on the
effective date of this merger shall continue to be the
members of the Surviving Partnership.
(b) The Agreement of Limited Partnership of the
Surviving Partnership shall continue to be the agreement of
limited partnership of the Surviving Partnership until the
same shall be altered, amended or replaced as therein
provided.
(c) Upon the merger becoming effective, the separate
existence of the Merging Partnership shall cease and all the
property, rights, privileges, franchise, patents, trademarks,
licenses, registrations and other assets of very kind and
description of the Merging Partnership shall be transferred
to, vested in and devolve upon the Surviving Partnership
without further act or deed, and all property, rights and
every other interest of the Surviving Partnership and the
Merging Partnership shall be as effectively the property of
the Surviving Partnership as they were of the Surviving
Partnership and the Merging Partnership, respectively.
(d) The Merging Partnership hereby agrees, from time
to time, as and when requested by the Surviving Partnership
or by its successors or assigns, to execute and deliver or
cause to be executed and delivered all such deeds and
instruments and to take or cause to be taken such further or
other action as the Surviving Partnership may deem necessary
or desirable in order to vest in and confirm to the Surviving
Partnership title acquired and/or to be acquired by reason of
or as a result of the merger herein provided for and
otherwise to carry out the
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intent and purposes hereof and the proper members of the
Surviving Partnership are fully authorized in the name of the
Merging Partnership or otherwise to take any and all such
action.
(e) All rights of creditors and all liens upon the
property of any of the Constituent Entities shall be
preserved, unimpaired, and all debts, liabilities, other
obligations of any kind and duties of the Merging Partnership
shall thenceforth attach to the Surviving Partnership and may
be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by the
Surviving Partnership.
(f) This Agreement shall have been approved by (i)
the Majority Vote (as defined below) of the limited partners
of the Surviving Partnership, (ii) the Majority Vote of the
Class A limited partners of the Merging Partnership, (iii)
the Majority Vote of the Class B limited partners of the
Merging Partnership and (iv) the Majority Vote of the limited
partners of the Merging Partnership as a whole. For purposes
hereof, "Majority Vote" shall mean the consent of the limited
partners of the relevant class or as a whole who collectively
hold the right to vote more than 50% of the total interests
of all limited partners of such class or as a whole, as the
case may be.
(g) All required third-party approvals or
consents to the Merger shall have been obtained.
(h) The Surviving Partnership shall have completed
to its satisfaction a due diligence review of the Merging
Partnership's assets (including but not limited to a review
of environmental, zoning, structural and title issues
relating to such assets.)
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective general partners thereunto duly
authorized as of the date first written above.
IHP HOLDINGS PARTNERSHIP, L.P.
By: IHP Investment Company, L.L.C., its
general partner
By: IHC Realty Corporation, its
managing member
By: /s/ TIMOTHY Q. HUDAK
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Name: Timothy Q. Hudak
Title: Vice President and
Assistant Secretary
INTERSTATE HOTELS PARTNERS, L.P.
By: SB/Interstate General Partnership,
its general partner
By: Interstate Inn, Inc., general
partner
By: /s/ W. THOMAS PARRINGTON, JR.
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Name: W. Thomas Parrington, Jr.
Title: Vice President