AGREEMENT AND PLAN OF MERGER

EX-2.5 5 cpf19_ex2z5.htm EXHIBIT 2.5 SCHEDULE 14C INFORMATION

Exhibit 2.5

Agreement and Plan of Merger (this "Agreement"), dated as of August 29, 2008, by and between Century Properties Fund XIX, a California limited partnership (the "California Partnership"), and Century Properties Fund XIX, LP, a Delaware limited partnership (the "Delaware Partnership").

WHEREAS, Fox Partners II, a California general partnership (the “General Partner”), is the sole general partner of the California Partnership and of the Delaware Partnership;

WHEREAS, the General Partner has determined that the merger of the California Partnership with and into the Delaware Partnership is in the best interests of the California Partnership, the Delaware Partnership and their respective limited partners; and

WHEREAS, the parties desire to enter this Agreement to evidence the terms, provisions, representations, warranties, covenants and conditions upon which such merger will be consummated.

NOW, THEREFORE, in consideration of these premises and of the mutual provisions, conditions and covenants herein contained, the parties hereto do hereby agree as follows:

1. The Merger. Upon the terms and subject to the conditions set forth herein, the California Partnership shall be merged with and into the Delaware Partnership ("Merger"), and the Delaware Partnership shall be the surviving entity in the Merger (the "Surviving Entity"). As soon as practicable after all of the conditions to the Merger set forth herein have been satisfied, the California Partnership and the Delaware Partnership shall (a) execute a certificate of merger and file it with the California Secretary of State and (b) execute a certificate of merger and file it with the Delaware Secretary of State. The Merger will become effective upon the filing of such certificates (the “Effective Time”).

2. Consequences of the Merger. At the Effective Time, the Merger shall have the effect provided by applicable law, and the following consequences:

(a) Certificate of Limited Partnership. The certificate of limited partnership of the Delaware Partnership in effect immediately prior to the Effective Time shall be the certificate of limited partnership of the Surviving Entity unless and until subsequently amended.

(b) Partnership Agreement. The limited partnership agreement of the California Partnership in effect immediately prior to the Effective Time, as amended as set forth on Annex A hereto, shall be the partnership agreement of the Surviving Entity (as so amended, the "Partnership Agreement") unless and until subsequently amended. The general partner and each limited partner of the Surviving Entity shall have the rights under, be bound by and be subject to the terms and conditions of, the Partnership Agreement, as a limited partner or general partner, as applicable.

(i) General Partner. The General Partner shall be the sole general partner of the Surviving Entity. The interest of the General Partner in the California Partnership immediately prior to the Effective Time shall be converted into an equivalent interest in the Surviving Entity. The interest of the General Partner in the Delaware Partnership immediately prior to the Effective Time shall be cancelled.

(ii) Limited Partners. Each limited partner in the California Partnership shall be a limited partner in the Surviving Entity. The interest of each limited partner in the California Partnership immediately prior to the Effective Time shall be converted into an equivalent interest in the Surviving Entity. The interest of each limited partner in the Delaware Partnership immediately prior to the Effective Time shall be cancelled.

(d) Tax Treatment of Merger. The parties hereto acknowledge and agree that for federal income tax purposes the Merger will be treated as follows:

(i) The California Partnership will be deemed to have obtained as a result of the Merger an initial capital account balance in the Surviving Entity reflecting the tax bases of the assets so treated as contributed by the California Partnership to the Surviving Entity.

(ii) Each partner in the Surviving Entity will have an initial capital account balance in the Surviving Entity equal to its proportionate share of such initial capital account balance so deemed obtained by the California Partnership.

(iii) In accordance with the foregoing, the respective initial capital account balances of the general partner and limited partners of the Surviving Entity immediately following the Effective Time shall be the same as those of the general partner and the limited partners of the California Partnership immediately prior to the Effective Time.

(iv) The Merger should not be treated as a realization event and, in accordance with the foregoing, the Surviving Entity shall be treated as the continuation of the California Partnership for federal income tax purposes.

3. No Dissenters’ Rights. None of the partners in the California Partnership or the Delaware Partnership will have any dissenters' rights in connection with the Merger.

4. Conditions to the Merger. The Merger shall not occur unless and until the Merger has been approved or consented to by a majority in interest of each class of limited partners of each of the California Partnership and the Delaware Partnership.

5. Further Acts After Effective Time. If, at any time after the Effective Time, the Surviving Entity considers or is advised that any deeds, bills of sale, assignments, assurances, or any other actions or things are necessary or desirable to vest, perfect, or confirm of record or otherwise in the Surviving Entity its right, title or interest in, to or under any of the rights, properties or assets of the California Partnership to be acquired by the Surviving Entity as a result of, or in connection with, the Merger or to otherwise carry out this Agreement, the general partner of the Surviving Entity shall be authorized to execute and deliver, in the name and on behalf of the California Partnership, all such deeds, bills of sale, assignments and assurances, and to take and do, in the name and on behalf of the California Partnership all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or a ssets in the Surviving Entity or to otherwise carry out this Agreement.

6. Termination and Abandonment. At any time prior to consummation of the Merger, this Agreement and Plan of Merger may be terminated and the Merger may be abandoned without liability to any party hereto upon the mutual consent of the California Partnership and the Delaware Partnership, in their sole discretion and for any reason or for no reason, notwithstanding approval of this Agreement and Plan of Merger by any of their partners. This Agreement and Plan of Merger may also be terminated by a Majority Vote (as defined in the California Partnership’s Agreement of Limited Partnership), without penalty, upon 60 days written notice to the General Partner.

7. Applicable Law. This Agreement shall be governed in all respects by the laws of the State of Delaware as applied to contracts entered into solely between residents of, and to be performed entirely in, such state.

8. No Third Party Beneficiaries. Nothing in this Agreement is intended to confer upon any person, entity, or organization other than the parties hereto (and their successors and assigns) any rights or remedies hereunder.

9. Entire Agreement. This Agreement, together with the Annex hereto, constitutes the entire agreement of the parties with respect to the subject matter hereof. All prior or contemporaneous agreements or understandings between the parties with respect to the subject matter hereof, whether written or oral, are merged herein and shall be of no force or effect. This Agreement cannot be changed, modified, or discharged except by a writing executed and delivered by each of the parties.

10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be signed as of the date first above written.

CENTURY PROPERTIES FUND XIX,
a California limited partnership

By: FOX PARTNERS II
General Partner

By: FOX CAPITAL MANAGEMENT CORPORATION
Managing General Partner

By: /s/ Martha L. Long
Martha L. Long
Senior Vice President

Century Properties Fund XIX, LP,
a Delaware limited partnership

By: FOX PARTNERS II
General Partner

By: FOX CAPITAL MANAGEMENT CORPORATION
Managing General Partner

By: /s/ Martha L. Long
Martha L. Long
Senior Vice President