EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
PROJECT ORANGE FUNDING, L.P.
(a Delaware limited partnership)
INTO
PROJECT ORANGE ASSOCIATES L.P.
(a Delaware limited partnership)
This Agreement and Plan of Merger (this "Agreement") is dated as of the 6th
day of December 1999, by and between Project Orange Funding, L.P., a Delaware
limited partnership ("Funding LP") and Project Orange Associates L.P., a
Delaware limited partnership ("Associates LP"). Funding LP and Associates LP
may be referred to individually as "Constituent Partnership" and collectively as
"Constituent Partnerships."
WHEREAS, each of Funding LP and Associates LP desire that Funding LP merge
with and into Associates LP;
WHEREAS, the Constituent Partnerships are duly organized under the laws of
the State of Delaware;
WHEREAS, Funding LP caused its Certificate of Limited Partnership to be
filed with the Secretary of State of the State of Delaware on November 12, 1999
and the partners of Funding LP entered into a Limited Partnership Agreement
dated as of November 12, 1999;
WHEREAS, as of the date hereof and immediately prior to the Merger, the
partners of Funding LP are as follows: (1) G.A.S. Orange Associates, L.L.C.
("GAS Orange Associates") as a 1% general partner and a 98% limited partner, and
(2) The Xxxxxx Family Irrevocable Trust ("Xxxxxx Trust") as a 1% limited
partner;
WHEREAS, Associates LP caused its Certificate of Limited Partnership to be
filed with the Secretary of State of the State of Delaware on May 23, 1988 and
the partners of Associates LP entered into a Second Amended and Restated
Agreement of Limited Partnership dated as of December 16, 1992 (the "Associates
LP Partnership Agreement");
WHEREAS, as of the date hereof and immediately prior to the Merger, the
partners of Associates LP are as follows: (1) GAS Orange Associates as a 1%
managing general partner and a 89% limited partner, and (2) G.A.S. Orange
Partners, L.P. as a 1% general partner and a 9% limited partner ("GAS Orange
Partners"); and
WHEREAS, immediately following the Merger, GAS Orange Associates shall own
a 1% interest as the managing general partner and a 89% limited partner in the
surviving partnership
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and GAS Orange Partners shall own a 1% interest as a general partner and a 9%
interest as a limited partner in the surviving partnership; and
WHEREAS, the General Partners of the Constituent Partnerships deem it
advisable and in the best interests of each of said limited partnerships and
their respective partners that Funding LP merge with and into Associates LP upon
the terms and conditions provided herein, and in accordance with the applicable
provisions of the laws of the State of Delaware (the "Merger").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
MERGER
Section 1.1 Merger. In accordance with the provisions of this Agreement
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and the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"),
Funding LP shall be merged with and into Associates LP and the separate
existence of Funding LP shall cease. Associates LP shall be the surviving
limited partnership in the Merger (hereinafter sometimes referred to as the
"Surviving Partnership"). The name of the Surviving Partnership shall be
Project Orange Associates L.P.
Section 1.2 Effective Date of Merger. The Merger shall become effective
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when the following actions have been completed:
(a) This Agreement has been duly approved by each of the
Constituent Partnerships as follows:
(i) by the general partners of each Constituent
Partnerships; and
(ii) by the limited partners who own more than fifty percent
(50%) of the then current percentage or other interest
in the profits of each Constituent Partnership; and
(b) An executed Certificate of Merger in substantially the form
attached hereto as Exhibit A and meeting the requirements of
the Delaware Act has been filed with the Secretary of State of
the State of Delaware.
The date and time when the Merger becomes effective, as aforesaid, is
herein called the "Effective Date." As of the Effective Date, the separate
existence of Project Orange Funding, L.P. shall cease and said partnership shall
be merged into Project Orange Associates L.P., the Surviving Partnership in
accordance with Section 17-211 of the Delaware Act.
Section 1.3 Effect of the Merger. As of the Effective Date, the Surviving
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Partnership shall succeed to, without other transfer, and shall possess and
enjoy, all the rights, privileges, immunities, powers and franchises both of a
public and private nature, and be subject to all the
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restrictions, disabilities and duties of each of the Constituent Partnerships,
and all the rights, privileges, immunities, powers and franchises of each of the
Constituent Partnerships, and all property, real, personal and mixed, and all
debts due to any of said Constituent Partnerships on whatever account, as well
as for all other things in action or belonging to each of said limited
partnerships, shall be vested in the Surviving Partnership; and all property,
rights, privileges, immunities, powers and franchises and all and every other
interest shall be thereafter as effectually the property of the Surviving
Partnership as they were of the respective Constituent Partnerships, and the
title to any real estate vested by deed or otherwise in an of said Constituent
Partnerships shall not revert or be in any way impaired by reason of the Merger;
provided, however, that all rights of creditors and all liens upon any property
of any of said Constituent Partnerships be preserved, unimpaired, limited in
lien to the property affected by such liens at the Effective Date, and all
debts, liabilities and duties of said Constituent Partnerships, respectively,
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.
Section 1.4 Accounting. The assets and liabilities of the Constituent
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Partnerships as of the Effective Date, shall be taken up on the books of the
Surviving Partnership at the amounts at which they are carried at that time on
the books of the respective Constituent Partnerships. The amount of capital of
the Surviving Partnership after the Merger shall be equal to the sum of the
capital accounts of each of the Constituent Partnerships.
Section 1.5 Certificate of Limited Partnership. The Certificate of
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Limited Partnership of Associates LP as in effect immediately prior to the
Effective Date of the Merger, a copy of which is attached hereto as Exhibit B,
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will continue in full force and effect as the Certificate of the Surviving
Partnership.
Section 1.6 Cancellation of Funding LP. In accordance with Section 17-
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211(f) of the Delaware Act, the Certificate of Merger filed with the Secretary
of State of the State of Delaware pursuant to Section 1.2(b) hereof shall be
deemed a certificate of cancellation of Funding LP.
Section 1.7 Agreement of Limited Partnership Agreement. The Associates LP
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Partnership Agreement as in effect immediately prior to the Effective Date shall
be the partnership agreement of the Surviving Partnership until the same shall
be altered or amended in accordance with the provisions thereof.
Section 1.8 Partners. (a) After carrying into effect the Merger provided
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in this Agreement, the partnership interests of Associates LP shall be as
follows: (1) GAS Orange Associates as a 1% managing general partner and an 89%
limited partner, and (2) GAS Orange Partners as a 1% general partner and a 9%
limited partner.
(b) Upon the effectiveness of the Merger, for and in consideration of the
payment of $1.00, the Xxxxxx Trust's interest in Funding LP will be
extinguished.
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Section 1.9 Managing General Partner of Surviving Partnership. The
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managing general partner of Associates LP, as of the Effective Date, shall be
the managing general partner of the Surviving Partner.
Section 1.10 Assumption of Obligations. From and after the Effective Date,
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Associates LP shall pay, perform and discharge, in due course, as the same shall
become due for payment, performance or discharge, all payment and performance
obligations and related liabilities of Funding LP. As of the Effective Date,
Associates LP shall be bound by all covenants, stipulations and agreements of
Funding LP.
ARTICLE II
PROHIBITION AGAINST CERTAIN CORPORATE ACTS
From and after the date of this Agreement and prior to the Effective Date,
neither of the Constituent Partnerships will, without the prior written consent
of the other Constituent Partnership:
(a) Amend its certificate of limited partnership or its partnership
agreement; or
(b) Engage in any material activity or transaction, or incur any material
obligation by contract of otherwise, except in the ordinary course of business.
From and after the date of this Agreement and prior to the Effective Date,
Funding LP and Associates LP will use their best efforts to preserve their
business organizations, and to preserve the goodwill of their suppliers,
customers and others having business relations with either of them.
ARTICLE III
TERMINATION AND AMENDMENT
Section 3.1 Termination. This Agreement may be terminated or abandoned at
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any time prior to the Effective Date, whether before or after approval of this
Agreement and the Merger by the partners of the Constituent Partnerships, by the
mutual consent of the Constituent Partnerships. In the event of the termination
of this Agreement, this Agreement shall forthwith become null and void.
Section 3.2 Amendment or Supplement. At any time before or after approval
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of this Agreement by the partners of the Constituent Partnerships and prior to
the Effective Date, this Agreement may be amended or supplemented in writing by
the Constituent Partnerships with regard to any of the terms contained in this
Agreement, except that following approval by the partners of the Constituent
Partnerships there shall be no amendment or supplement that by law requires
further approval by such partners without such further approval by the partners
of the Constituent Partnerships.
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ARTICLE IV
TRANSFER OF ASSETS
To the extent permitted by law, from time to time, as and when requested by
the Surviving Partnership, its successors or assigns, each of the Constituent
Partnerships shall 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 actions
as the Surviving Partnership may deem necessary or desirable in order to vest in
and confirm to the Surviving Partnership title to and possession of any and all
property of each of the Constituent Partnerships acquired by reason of or as a
result of the Merger herein provided for, whether such property be personal or
real in nature, tangible or intangible, and otherwise to carry out the intent
and purposes hereof and the managing general partners of the subject Constituent
Partnerships are fully authorized in the name of the Surviving Partnership or
otherwise, to take any and all such action.
ARTICLE V
MISCELLANEOUS
Section 5.1 Further Assurances. Each of the Constituent Partnerships
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shall, without further consideration, use reasonable efforts to execute and
deliver such additional documents and take such other action as the other party
may reasonably request to carry out the intent of this Agreement and the
transactions contemplated hereby.
Section 5.2 Successors and Assigns. This Agreement shall be binding upon
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the successors and assigns of the Constituent Partnerships.
Section 5.3 Assignment. The Constituent Partnerships shall not transfer
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or assign this Agreement, or any interest of the respective Constituent
Partnerships herein.
Section 5.4 Entire Agreement. This Agreement constitutes the entire
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agreement between the Constituent Partnerships with respect to the transactions
contemplated herein and supersedes all prior agreements, understandings, letters
of intent, negotiations and discussions, whether oral or written, of the
Constituent Partnerships.
Section 5.5 Modification; Waiver. Any of the terms of conditions of this
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Agreement may be modified or waived at any time before the Effective Date by the
party which is, or the partners of which are, entitled to the benefit thereof
upon the authority of the managing general partner of such party, provided that
any such modification or waiver shall, in the judgment of the party making it,
not affect substantially or materially and adversely the benefits to such party
or its partners intended under this Agreement. No delay or failure on the part
of any party hereto in exercising any right, power or privilege under this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No supplement, modification,
extension, waiver or termination of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any
provision of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
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Section 5.6 Interpretation; References. Any use of the masculine,
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feminine or neuter pronouns herein shall not be limiting, but shall be construed
as referring to persons of any gender, as the context may require. Any use of
the singular or plural form herein shall not be limiting, but shall be construed
as referring to either the plural or singular, as the context requires.
References to an "Article" or a "Section" are, unless otherwise specified, to an
Article or Section of this Agreement. The Article and Section headings of this
Agreement are for convenience of reference only and shall not be deemed to
modify, explain, restrict, alter or affect the meaning or interpretation of any
provision hereof.
Section 5.7 Severability. Any provision or part of this Agreement that is
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invalid or unenforceable in any situation in any jurisdiction shall, as to such
situation and such jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the remaining provisions
hereof or the validity or enforceability of any such provision in any other
situation or in any other jurisdiction.
Section 5.8 Governing Law. This Agreement shall be construed and enforced
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in accordance with the laws of the State of Delaware, without regard to
principles of conflict of laws.
Section 5.9 Representations and Warranties. Each of the Constituent
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Partnerships hereby represents and warrants to the other Constituent Partnership
that it is a duly organized and lawfully existing partnership in good standing
under the laws of the State of Delaware and is duly authorized, qualified and
licensed to carry on its business in such jurisdictions in the manner presently
conducted.
Section 5.10 Counterparts. This Agreement may be executed in
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counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and Plan of Merger, or have caused this Agreement and Plan of Merger to be duly
executed on their behalf, as of the day and year first above written.
PROJECT ORANGE ASSOCIATES L.P.
By: G.A.S. ORANGE ASSOCIATES, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
_____________________________
Name: Xxxx X. Xxxxxx
Title: President
PROJECT ORANGE FUNDING, L.P.
By: G.A.S. ORANGE ASSOCIATES, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
_____________________________
Name: Xxxx X. Xxxxxx
Title: President
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EXHIBIT A
CERTIFICATE OF MERGER
OF
PROJECT ORANGE FUNDING, L.P.
INTO
PROJECT ORANGE ASSOCIATES L.P.
To the Secretary of State
of Delaware
Project Orange Associates L.P., a limited partnership organized under the
Delaware Revised Uniform Limited Partnership Act, (the "Act") for the purpose of
merging with other business entities pursuant to Section 17-211 of the Act,
hereby certifies that:
1. The name and jurisdiction of formation or organization of
each of the domestic limited partnerships are:
NAME JURISDICTION
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Project Orange Associates L.P. Delaware
Project Orange Funding, L.P. Delaware
2. An Agreement and Plan of Merger has been approved and
executed by each domestic limited partnership or other business entity
which is a constituent entity.
3. The name of the surviving domestic limited partnership is
Project Orange Associates L.P.
4. The merger shall be effective on the date of filing this
Certificate of Merger with the Secretary of State of the State of
Delaware.
5. The executed Agreement and Plan of Merger is on file at the
following at the principal place of business of the surviving domestic
limited partnership. The address of the principal place of business of
the surviving limited partnership is: 00 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000-0000.
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6. A copy of the Agreement and Plan of Merger will be furnished
by the surviving domestic limited partnership, on request and without
cost, to any partner of any domestic limited partnership, or any
person holding an interest in any other business entity, which is a
constituent entity.
Signed on December 6, 1999.
PROJECT ORANGE ASSOCIATES L.P.
By: G.A.S. Orange Associates, L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President
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EXHIBIT B
[CERTIFICATE OF LIMITED PARTNERSHIP OF
PROJECT ORANGE ASSOCIATES L.P. - TO BE ATTACHED]
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