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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") dated as of October 6,
2000, between VANCOUVER MALL, a Washington general partnership ("VANCOUVER
MALL"), and VANCOUVER MALL II LIMITED PARTNERSHIP, a Delaware limited
partnership ("VANCOUVER MALL II").
RECITALS
WHEREAS, the general partners of Vancouver Mall and all partners of
Vancouver Mall II deem it advisable and generally to the advantage and welfare
of the parties hereto and their respective owners that Vancouver Mall merge into
and with Vancouver Mall II under and pursuant to the Delaware Revised Uniform
Limited Partnership Act (the "DRULPA").
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein the parties hereto agree as follows:
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ARTICLE I
THE MERGER; EFFECTIVE TIME
1.1 MERGER. At the Effective Time (as defined in Section 1.2 below),
Vancouver Mall shall be merged with and into Vancouver Mall II and the separate
partnership existence of Vancouver Mall shall thereupon cease (the "MERGER").
Vancouver Mall II shall survive the Merger and shall continue to be governed by
the laws of the State of Delaware, and the separate existence of Vancouver Mall
II with all its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger. The Merger shall have the effects specified
in the DRULPA. The name of Vancouver Mall II shall remain "Vancouver Mall II
Limited Partnership" after the Merger.
1.2 EFFECTIVE TIME. Vancouver Mall and Vancouver Mall II shall cause a
Certificate of Merger to be executed and filed with the Secretary of State of
Delaware as provided in Section 17-211 of the DRULPA. The Certificate of Merger
shall provide that the Merger shall become effective at 12:01 p.m. on October 6,
2000, and such time is hereinafter referred to as the "EFFECTIVE TIME."
ARTICLE II
THE CERTIFICATE OF PARTNERSHIP AND AGREEMENT OF PARTNERSHIP
2.1 CERTIFICATE OF FORMATION. The Certificate of Partnership of Vancouver
Mall II as it exists as of the date of this Agreement shall be the Certificate
of Partnership of Vancouver Mall II following the Effective Time, unless and
until the same shall be amended or repealed in accordance with the provisions
thereof, which power to amend or repeal is hereby expressly reserved, and all
rights and powers of whatsoever nature conferred by such Certificate of
Partnership or herein upon the sole general partner of Vancouver Mall II.
2.2 PARTNERSHIP AGREEMENT. The Partnership Agreement of Vancouver Mall II
as it exists at the Effective Time shall be the Partnership Agreement of
Vancouver Mall II following the Effective Time, unless and until the same shall
be amended or repealed in accordance with the provisions thereof.
ARTICLE III
PARTNERS
3.1 PARTNERS. Immediately after the Effective Time, the sole general
partner of Vancouver Mall II shall be Vancouver Mall LLC, a Delaware limited
liability company,
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and the sole limited partner of Vancouver Mall II shall be Vancouver Associates,
a Washington limited partnership.
ARTICLE IV
CONVERSION OF PARTNERSHIP INTERESTS IN THE MERGER
4.1 CONVERSION OF PARTNERSHIP INTERESTS. At the Effective Time (a) the
99.5% general partnership interest of Vancouver Mall LLC in Vancouver Mall, and
all rights in respect thereof shall be converted into a 99.5% general
partnership interest in Vancouver Mall II; and (b) the .5% general partnership
interest of Vancouver Associates in Vancouver Mall shall be converted into a .5%
limited partnership interest in Vancouver Mall II.
ARTICLE V
TERMINATION
5.1 TERMINATION. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, before or after the approval
of Vancouver Mall.
5.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of the termination
of this Agreement and abandonment of the Merger pursuant to this Article, no
party hereto shall have any liability or further obligation to any other party
to this Agreement, except as provided in Section 7.1 and except that nothing
herein will relieve any party from liability for any breach of this Agreement.
ARTICLE VI
MISCELLANEOUS AND GENERAL
6.1 SURVIVAL. The Agreements of Vancouver Mall and Vancouver Mall II
contained in Section 5.2 and this Section 6.1 shall survive the termination of
this Agreement. No other provisions of this Agreement shall survive the
consummation of the Merger or the termination of this Agreement.
6.2 MODIFICATION OR AMENDMENT. Subject to the applicable provisions of the
DRULPA, at any time prior to the Effective Time, the parties hereto may modify
or amend this Agreement, by written agreement executed and delivered by duly
authorized representatives of the respective parties.
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6.3 COUNTERPARTS. For the convenience of the parties hereto, this Agreement
may be executed in any number of counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts shall together
constitute the same agreement.
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
6.5 THIRD PARTIES. This Agreement is not intended to create any obligations
to, or rights in respect of, any persons other than the parties hereto.
6.6 TAX PURPOSES. For income tax purposes, the Delaware partnership shall
be a continuation of the Washington partnership and shall have the same Employer
Identification Number, which is 43-1065617.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the date first
hereinabove written.
VANCOUVER MALL, a Washington general
partnership
By: Vancouver Mall LLC,
a Delaware limited liability company,
its general partner
By: Westfield America Limited Partnership,
a Delaware limited partnership,
its sole member
By: Westfield America,
Inc., a Missouri corporation,
its sole general partner
By: /s/ IRV HEPNER
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Name: Irv Hepner
Title: Secretary
VANCOUVER MALL II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Vancouver Mall LLC, a Delaware limited
liability company, its general partner
By: Westfield America Limited Partnership,
a Delaware limited partnership,
its sole member
By: Westfield America,
Inc., a Missouri corporation,
its sole general partner
By: /s/ IRV HEPNER
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Name: Irv Hepner
Title: Secretary
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By: VANCOUVER ASSOCIATES, a
California limited partnership, and
owner of .5% of the outstanding partnership
interests in the partnership
By: The Newman Family Trust
Created by Declaration of Trust
Dated November 17, 1993, as
Amended, general partner
/s/ HARRY NEWMAN, JR.
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Harry Newman, Jr., Trustee
/s/ ANNE P. NEWMAN
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Anne P. Newman, Trustee
By: The Brettin Family Trust Dated
April 28, 1987, as Amended,
General partner
/s/ LEROY H. BRETTIN
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LeRoy H. Brettin, Trustee
/s/ IDA M. BRETTIN
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Ida M. Brettin, Trustee
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STATE OF ______________)
) ss.
COUNTY OF _____________)
On __________, ____, before me,
________________________________________, Notary Public, personally appeared
__________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s)_______ subscribed to
the within instrument and acknowledged to me that _____ executed the same in
_____ authorized capacity, and that by _____ signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
______________________
Notary Public
My commission expires ________,
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On October 4, 2000, before me, Susan W. Byhower, Notary Public, personally
appeared LeRoy H. Brettin and Ida M. Brettin, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacity, and that by their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
SUSAN W. BYHOWER
Notary Public
My commission expires AUGUST 19, 2003
