{"id":43037,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-capstone-capital-trust-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-capstone-capital-trust-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-capstone-capital-trust-inc-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Capstone Capital Trust Inc. and Midway Acquisition Co."},"content":{"rendered":"<pre>                          AGREEMENT AND PLAN OF MERGER\n\n                 THIS AGREEMENT AND PLAN OF MERGER (the 'Agreement') is made\nand entered into as of this 27th day of May, 1994, by and between: (i) CAPSTONE\nCAPITAL TRUST, INC., a Maryland corporation (the 'Surviving Corporation'), and\n(ii) MIDWAY ACQUISITION COMPANY, INC., an Alabama corporation (the 'Merged\nCorporation'), as follows:\n\n                 WHEREAS, the Surviving Corporation desires to acquire all of\nthe assets and liabilities of the Merged Corporation in exchange the\nsatisfaction of a $20,400,000 loan (the 'Loan') from NationsBank of Georgia,\nN.A. (the 'Bank');\n\n                 WHEREAS, the Surviving Corporation and the Merged Corporation\ndesire to adopt a plan of reorganization within the meaning of Section\n368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the 'Code');\n\n                 WHEREAS, the Surviving Corporation and the Merged Corporation\ndeem it advisable that the Merged Corporation be merged into the Surviving\nCorporation pursuant to this Agreement and in accordance with the applicable\nstatutes of the States of Maryland and Alabama; and\n\n                 WHEREAS, the principal office of the Surviving Corporation in\nthe State of Alabama is located at One Perimeter Park South, Suite 335-S, in\nthe City of Birmingham, County of Jefferson, and the name of its resident agent\nat that address is John W. McRoberts.\n\n                 NOW, THEREFORE, the parties agree as follows:\n\n                             SECTION 1.  THE MERGER\n\n                 1.1      Transfer of Property and Liabilities.  Upon the\nEffective Date (as hereinafter defined in Section 1.3 hereof) of the Merger, in\naccordance with the applicable sections of the Business Corporation Law of the\nState of Maryland and Section 10-2A-145 of the Alabama Business Corporation\nAct:  (i) the separate existence of the Merged Corporation shall cease; (ii)\nall of the outstanding shares of stock of the Merged Corporation held by its\nShareholders shall be cancelled; and (iii) upon the filing of Articles of\nMerger, certified as to the requisite stockholder approval, with the Secretary\nof State of the State of Alabama and of Articles of Merger with the appropriate\nstate official of the State of Maryland, the Surviving Corporation shall\npossess all of the rights, privileges, immunities, powers, and purposes, and\nall the property, real and personal, causes of action, and every other asset of\nthe Merged Corporation, and shall assume and be liable for all the liabilities,\nobligations, and penalties of the Merged Corporation, contingent or otherwise.\n\n                 1.2      The Surviving Corporation.  Following the Merger, the\nexistence of the Surviving Corporation shall continue unaffected and unimpaired\nby the Merger, with all of the rights, privileges, immunities, and powers, and\nsubject to all the duties and liabilities, of a corporation organized under the\nlaws of the State of Alabama.  The Articles of Incorporation and Bylaws of the\nSurviving Corporation, as in effect immediately prior to the Effective Date,\nshall continue in full force and effect, and shall not be changed in any manner\nby the Merger.  The directors and officers of the Surviving Corporation\nimmediately prior to the Effective Date shall continue as the directors and\nofficers of the Surviving Corporation.\n\n\n\n\n\n\n                 1.3      Effective Date of Merger.  Unless this\nAgreement is earlier terminated pursuant hereto, assuming satisfaction of each\nof the conditions set forth in Sections 6 and 7 (unless waived in accordance\nwith this Agreement), the Articles of Merger attached hereto as Exhibit 'A',\ncertified as to the requisite shareholder approval, shall be submitted for\nfiling with the Secretary of State of the State of Alabama, and the Articles of\nMerger attached hereto as Exhibit 'B' shall be submitted for filing with the\nappropriate state official of the State of Maryland.  In accordance with the\nprovisions of the escrow letter (the 'Escrow Letter') by and among the\nSurviving Corporation, the Merged Corporation, First American Title Insurance\nCompany ('FATIC') and the other sellers of property to the Surviving\nCorporation, a copy of which is attached hereto as Exhibit 'C', this Agreement\nand the documents to be delivered pursuant to Sections 8.2 and 8.3 shall be\ndeposited in escrow with FATIC and shall be released upon the satisfaction of\nall of the conditions set forth in the Escrow Letter.  The effective date of\nthe Merger (the 'Effective Date') shall be the date the Articles of Merger for\nthe Merged Corporation and the Articles of Merger for the Surviving Corporation\nhave been released from escrow for filing and acceptance by the appropriate\nauthorities.\n\n                           SECTION 2.  CONSIDERATION\n\n                 2.1      Consideration.  On the Effective Date, the Surviving\nCorporation shall satisfy the Loan by causing to be deposited with FATIC the\nsum of $____________________, which will be disbursed directly to the Bank in\naccordance with the provisions of the Escrow Letter.\n\n                 2.2      Cancellation of Shares.\n\n                          (a)     Shares of Merged Corporation.  The shares of\ncommon stock of the Merged Corporation issued and outstanding immediately prior\nto the Effective Date shall automatically and without any action on the part of\nthe Merged Corporation's shareholders be cancelled.\n\n                          (b)     Shares of the Surviving Corporation.  None of\nthe issued shares of the Surviving Corporation shall be converted as a result\nof the Merger, but all of such shares shall remain issued shares of capital\nstock of the Surviving Corporation.\n\n\n      SECTION 3.  REPRESENTATIONS AND WARRANTIES OF THE MERGED CORPORATION\n\n                 The Merged Corporation hereby represents and warrants to the\nSurviving Corporation as of the Effective Date hereof as set forth below. All\nrepresentations and warranties in this Section 3 are qualified in their\nentirety:  (i) by the specific acts to be taken by the Merged Corporation in\naccordance with this Agreement, or as otherwise contemplated by the parties\nhereto or by the Merged Corporation exercising its rights or performing its\nobligations hereunder; and (ii) the information set forth in the schedules\nreferenced in this Section 3 and attached hereto, without reference to a\nspecific section of this Section 3 of this Agreement.\n\n                 3.1      Organization, Qualifications and Corporate Power.\nThe Merged Corporation is a corporation duly incorporated, validly existing and\nin good standing under the laws of the State of Alabama and is duly licensed or\nqualified to transact business as a foreign corporation and is in good standing\nin each jurisdiction in which the nature of the business transacted by it or\nthe character of the properties owned or leased by it requires such licensing\nor qualification without otherwise having a\n\n\n\n\n                                      2\n\nmaterial adverse effect on the Merged Corporation's business or properties.\nThe Merged Corporation has the corporate power and authority to own and hold\nits properties and to carry on its business as now conducted and as proposed to\nbe conducted, and to execute, deliver and perform this Agreement.\n\n                 3.2      Authorization of Agreements, Etc.  The execution and\ndelivery by the Merged Corporation of this Agreement and the performance by the\nMerged Corporation of its obligations hereunder have been duly authorized by\nall requisite corporate action and except to the extent that it will not result\nin a material adverse effect on the business or properties of the Merged\nCorporation will not (a) violate any provision of law, any order of any court\nor other agency of government, the Articles of Incorporation of the Merged\nCorporation (the 'Charter') or the By-laws of the Merged Corporation or any\nprovision of any indenture, agreement or other instrument to which the Merged\nCorporation, or any of its properties or assets is bound, (b) conflict with,\nresult in a breach of or constitute (with due notice or lapse of time or both)\na default under any such indenture, agreement or other instrument; or (c)\nresult in the creation or imposition of any lien, charge, restriction, claim or\nencumbrance of any nature whatsoever upon any of the properties or assets of\nthe Merged Corporation.\n\n                 3.3      Validity.  This Agreement has been duly executed and\ndelivered by the Merged Corporation and assuming that it constitutes the legal,\nvalid and binding obligation of the Surviving Corporation, constitutes the\nlegal, valid and binding obligation of the Merged Corporation, enforceable in\naccordance with its terms, subject, as to enforcement, to bankruptcy,\ninsolvency, reorganization, and other laws of general applicability relating to\nor affecting creditors' rights and to general equity principles.\n\n                 3.4      Authorized Capital Stock.  The authorized capital\nstock of the Merged Corporation consists of 1,000 shares of common stock, par\nvalue $1.00 per share.  As of the Effective Date, 1,000 shares of the common\nstock of the Merged Corporation will be validly issued and outstanding, fully\npaid and nonassessable.  The designations, powers, preferences, rights,\nqualifications, limitations and restrictions in respect of each class and\nseries of authorized capital stock of the Merged Corporation are as set forth\nin the Charter, a copy of which is attached as Exhibit 'D', and all such\ndesignations, powers, preferences, rights, qualifications, limitations and\nrestrictions are valid, binding and enforceable and in accordance with all\napplicable laws.  Except as set forth in the attached Schedule 3.4, (a) no\nsubscription, warrant, option, convertible security, or other right (contingent\nor other) to purchase or otherwise acquire equity securities of the Merged\nCorporation is authorized or outstanding and (b) there is no commitment by the\nMerged Corporation to issue shares, subscriptions, warrants, options,\nconvertible securities, or other such rights or to distribute to holders of any\nof its equity securities any evidence of indebtedness or asset.  Except as\nprovided for in the Charter, as set forth in the attached Schedule 3.4, or as\notherwise contemplated in this Agreement, the Merged Corporation has no\nobligation (contingent or other) to purchase, redeem or otherwise acquire any\nof its equity securities or any interest therein or to pay any dividend or make\nany other distribution in respect thereof.  There are no voting trusts or\nagreements, stockholders' agreements, pledge agreements, buy-sell agreements,\nrights of first refusal, preemptive rights or proxies relating to any\nsecurities of the Merged Corporation (whether or not the Merged Corporation is\na party thereto).  All of the outstanding securities of the Merged Corporation\nwere issued in compliance with all applicable Federal and state securities\nlaws.\n\n                 3.5      Litigation.  To the Merged Corporation's knowledge,\nthere are no actions, suits or proceedings before any judicial or\nquasi-judicial body, by any governmental authority or other third party,\npending or threatened against or affecting the Merged Corporation's business or\nproperties.  There\n\n\n\n\n                                      3\n\nare no actions, suits or proceedings pending, contemplated or threatened by the\nMerged Corporation in connection with its properties or with the Merged\nCorporations's ownership, rights, use, operation, development or maintenance\nthereof, including, without limitation, tax reduction proceedings which would\nbe binding upon the Surviving Corporation or the Merged Corporation's business\nor properties following the Effective Date.  To the Merged Corporation's\nknowledge, no attachments, execution proceedings, assignments for the benefit\nof creditors, insolvency, bankruptcy, reorganization or other proceedings are\npending or threatened against the Merged Corporation.\n\n                 3.6      Title.  The Merged Corporation is the legal fee\nsimple titleholder of the real property described on Exhibit 'E' (the\n'Property'), has good, valid, marketable and insurable title thereto, free and\nclear of all liens, claims, encumbrances, covenants, conditions, restrictions,\nrights-of-way, easements and any other matters affecting title other than the\nmatters set forth on Exhibit 'F' attached hereto (the 'Permitted Exceptions'),\nand hereby warrants its title to the Property and agrees to defend such title\nagainst the lawful claims of all persons claiming by, through or under the\nMerged Corporation or the Merged Corporation's immediate\npredecessor-in-interest.  The Merged Corporation is the only legal titleholder\nto the personal property and the intangible property with respect to the\nProperty, free and clear of all liens, claims and encumbrances.\nNotwithstanding the foregoing, the Merged Corporation's liability to the\nSurviving Corporation for a breach of the foregoing representation and warranty\nshall be limited to the damages of the Surviving Corporation on account of such\nbreach in excess of amounts recovered on account of such breach by the\nSurviving Corporation under the 'Title Policy' (as defined below).\n\n                 3.7      Compliance with Laws.  To the Merged Corporation's\nknowledge, the Property is in compliance with all laws and regulations of all\napplicable federal, state, city and other governmental authorities in effect as\nof the date of this Agreement, including, without limitation, any laws and\nregulations with respect to zoning, building, fire and health codes,\nsanitation, pollution control and waste disposal (collectively, the 'Laws').\nTo the Merged Corporation's knowledge, there are no conditions currently or\npreviously existing on or with respect to the Property which may give rise to\nany violation of any Law if such conditions were disclosed to the authorities\nwith jurisdiction thereover.\n\n                 3.8      Existing Approvals.  To the Merged Corporation's\nknowledge, there are now in full force and effect all required certifications,\napprovals,consents, authorizations, licenses and permits required by any\ngovernmental authority in connection with the Merged Corporation's ownership\nand use of the Property (collectively, the 'Existing Approvals').\n\n                 3.9      Real Estate Taxes.  No taxes have been or will be\nassessed on the Property, or any portion thereof, in respect of the year of\nClosing or any prior year as a result of or on account of any action taken by\nthe Merged Corporation, other than (a) the consummation of the transactions\nwhich are the subject of this Agreement or (b) any work of tenant improvement\nconstructed by the tenant under the SHL Lease that has become the property of\nthe Merged Corporation pursuant to the SHL Lease.\n\n                 3.10     Condemnation; Special Assessments.  To the Merged\nCorporation's knowledge, there is no pending, threatened or contemplated\ncondemnation or similar proceeding or special assessment which would affect the\nProperty or any part thereof in any way whatsoever.\n\n                 3.11     Leasehold Interests.  The Lease Agreement between the\nMerged Corporation and Midway Hospital Medical Center, Inc. is a valid and\nsubsisting agreement, in full force and effect,\n\n\n\n\n                                      4\n\nwithout any default by the Merged Corporation or the Lessee thereunder.  To the\nMerged Corporation's knowledge, no event has occurred or is continuing which,\nwith due notice or lapse of time or both, would constitute a default or event\nof default by the Merged Corporation under the Lease or, to the Merged\nCorporation's knowledge, by any other party thereto.\n\n                 3.12     Service Contracts.  Neither the Merged Corporation\nnor any agent of the Merged Corporation has entered into any maintenance,\nrepair, management, leasing, supply' or other service contracts affecting the\nProperty, oral or written, including, without limitation, janitorial, elevator\nand landscaping agreements, which would be binding on the Surviving Corporation\nor the Property subsequent to the Effective Date.\n\n                 3.13     Employees.  There are no employees presently employed\nby the Merged Corporation for the operation and maintenance of the Property\npursuant to employment contracts, written or oral, that would be binding on the\nSurviving Corporation or the Property following the Effective Date.\n\n                 3.14     Insurance.  The Merged Corporation has received, and\nto the Merged Corporation's knowledge SHL has received, no notice or request\nfrom any insurance company or board of fire underwriters requesting the\nperformance of any work or alteration with respect to the Property.  To the\nMerged Corporation's knowledge, there are no defects or inadequacies in the\nProperty which, if not corrected, would result in the termination of any\ninsurance policy covering the Property or any part thereof or an increase in\nthe cost of such policies.\n\n                 3.15     Taxes.  The Merged Corporation has filed all tax\nreturns, Federal, state, county and local, required to be filed by it and has\npaid all taxes shown to be due by such returns as well as all other taxes,\nassessments and governmental charges which have become due and payable\nincluding, without limitation, all taxes which the Merged Corporation is\nobligated to withhold from amounts owing to employees, creditors and third\nparties.  The Merged Corporation has established adequate reserves for all\nknown taxes accrued but not yet payable.  All tax elections have been made by\nthe Merged Corporation in accordance with generally accepted practice.  To the\nMerged Corporation's knowledge, the Federal income tax returns of the Merged\nCorporation have never been audited by the Internal Revenue Service.  No\ndeficiency assessment with respect to or proposed adjustment of the Merged\nCorporation's Federal, state, county or local taxes is pending or, to the best\nof the Merged Corporation's and Shareholder's knowledge, threatened.  To the\nbest of the Merged Corporation's knowledge, there is no tax lien, whether\nimposed by any Federal, state, county or local taxing authority, outstanding\nagainst the assets, properties or business of the Merged Corporation.  The\nMerged Corporation and the Shareholder filed an election pursuant to Section\n1362 of the Code that the Merged Corporation be taxed as an S corporation,\nwhich is valid and in effect on the date hereof.\n\n                 3.16     Other Agreements.  To the Merged Cooperation's\nknowledge, the Merged Corporation and each other party to each material\ncontract between the Merged Corporation and such party that may have a material\nadverse affect on the business or Property of the Merged Corporation (a) have\nin all material respects performed all the obligations required to be performed\nby them to date (or each non-performing party has received a valid, enforceable\nand irrevocable written waiver with respect to its non-performance), and (b)\nhave received no notice of default and are not in default (with due notice or\nlapse of time or both) under any such contract.\n\n\n\n\n                                      5\n\n                 3.17     Toxic or Hazardous Materials.\n\n                 (a)      Definitions.  The following definitions apply to this\nAgreement; (i) 'Environmental Claim' means any written notice by a person or\nentity alleging liability (including, without limitation, potential liability\nfor investigatory costs, cleanup costs, governmental response costs, natural\nresource damages, property damages, personal injuries or penalties) arising out\nof, based on or resulting from (a) the presence, or release into the\nenvironment, of any 'Material of Environmental Concern' (as defined below) in\nviolation of any 'Environmental Law' (as defined below) on the Property, or (b)\ncircumstances forming the basis of any violation of any Environmental Law; (ii)\n'Environmental Laws' means all federal, state, local and municipal laws, rules\nand regulations (including common law) relating to pollution or protection of\nthe environment (including, without limitation, ground water, land surface or\nsubsurface strata), including, without limitation, laws and regulations\nrelating to emissions, discharges, releases or threatened releases of Materials\nof Environmental Concern, or otherwise relating to the manufacture, processing,\ndistribution, use, treatment, storage, disposal, transport, recycling,\nreporting or handling of materials of Environmental Concern, (iii) 'Materials\nof Environmental Concern' means chemicals, pollutants, contaminants, petroleum\nand petroleum products.\n\n                 (b)      Representations and Warranties.\n\n                 Except to the extent disclosed in any environmental report\ndescribed on Exhibit 'H' attached hereto:\n\n                          (1)     To the Merged Corporation's knowledge, (i)\nthe Merged Corporation is in compliance with all Environmental Laws relating to\nthe Property, and (ii) there are no circumstances that may prevent or interfere\nwith compliance in the future with any Environmental Law.  The Merged\nCorporation has not received any communication (written or oral), whether from\na governmental authority, citizens group, employee or otherwise, that alleges\nin substance that the Merged Corporation is not in full compliance with all\nEnvironmental Laws relating to the Property.\n\n                          (2)     To the Merged Corporation's knowledge, no\nEnvironmental Claim is pending or threatened against the Merged Corporation,\nthe Property or any person or entity whose liability for any Environmental\nClaim the Merged Corporation has or may have retained or assumed, either\ncontractually or by operation of law.\n\n                          (3)     To the Merged Corporation's knowledge, there\nare no past or present conditions, actions, activities, circumstances, events\nor incidents relating to the Property, including, without limitation, the\nrelease, emission, discharge, presence or disposal of any Material of\nEnvironmental Concern in violation of any Environmental Law, that could form\nthe basis of any Environmental Claim against the Merged Corporation or any\nperson or entity whose liability for any Environmental Claim the Merged\nCorporation has or may have retained or assumed either contractually or by\noperation of law.\n\n                          (4)     Without in any way limiting the generality of\nthe foregoing, (i) the Merged Corporation has not, and to the Merged\nCorporation's knowledge, SHL has not, stored, disposed of or arranged for the\nstorage or disposal of Materials of Environmental Concern on the Property in\nviolation of any Environmental Law, and (ii) to the Merged Corporation's\nknowledge, (x) no underground storage tanks are located on the Property, (y)\nthere is no asbestos contained in or forming\n\n\n\n\n                                      6\n\npart of any of the improvements on the Property, including, without limitation,\nany building, building component, structure or office space on the Property,\nand (z) no polychlorinated biphenyls (PCBs) are or have been used or stored at\nthe Property in violation of any Environmental Law.\n\n         3.18    No Defects.  With respect to the Property, to the Merged\nCorporation's knowledge there are no (i) defects not readily apparent upon\nvisual inspection of the Property in the physical condition of the Property or\nany portion thereof that have not been corrected or which will impair the\noperation of the Property, and no (ii) defects not readily apparent upon visual\ninspection of the Improvements in the Improvements, the structural elements\nthereof, the mechanical systems (including, without limitation, all heating,\nventilating, air conditioning, plumbing, electrical, elevator, security,\nutility and sprinkler systems) therein, the roofs or the parking and loading\nareas.\n\n         3.19    Personal Property.  The personal property, if any, has no\nsignificant monetary value.  The Merged Corporation and the Surviving\nCorporation each acknowledge that no part of the consideration payable by the\nSurviving Corporation is attributable to the transfer of the personal property.\n\n         3.20    The Merged Corporation's Knowledge.  All references in this\nSection 3 to (a) actions taken by the Merged Corporation in connection with the\noperation of the Property shall be construed to include actions taken on behalf\nof the Merged Corporation by the employees and agents of the Merged\nCorporation, (b) notices given or received by the Merged Corporation shall be\nconstrued to include notices given or received by the employees and agents of\nthe Merged Corporation, and (c) the Merged Corporation's knowledge shall be\nlimited only to the current, actual knowledge of either John W. McRoberts or\nAndrew L. Kizer.\n\n         3.21    Survival.  All of the Merged Corporation's representations and\nwarranties set forth in this Section 3 shall survive the Effective Date.\n\n    SECTION 4.   REPRESENTATIONS AND WARRANTIES OF THE SURVIVING CORPORATION\n\n                 The Surviving Corporation represents and warrants to the\nMerged Corporation as of the Effective Date as set forth below.  All\nrepresentations and warranties in this Section 4 are qualified in their\nentirety by the specific acts to be taken by the Surviving Corporation in\naccordance with the terms of this Agreement.\n\n                 4.1      Organization, Qualifications and Corporate Power.\n\n                          The Surviving Corporation is a corporation duly\nincorporated, validly existing and in good standing under the laws of the State\nof Maryland and is duly licensed or qualified to transact business as a foreign\ncorporation and is in good standing in each jurisdiction in which the nature of\nthe business transacted by it or the character of the properties owned or\nleased by it requires such licensing or qualification.  The Surviving\nCorporation has the corporate power and authority to own and hold its\nproperties and to carry on its business as now conducted and as proposed to be\nconducted, and to execute, deliver and perform this Agreement.\n\n\n                 4.2      Authorization of Agreements, Etc. The execution and\ndelivery by the Surviving Corporation of this Agreement, the performance by the\nSurviving Corporation of its obligations hereunder\n\n\n\n\n                                      7\n\nhave been duly authorized by all requisite corporate action and will not (a)\nviolate any provision of law, any order of any court or other agency of\ngovernment, the Charter of or the By-laws of the Surviving Corporation, or any\nprovision of any indenture, agreement or other instrument to which the\nSurviving Corporation, any of its subsidiaries or any of their respective\nproperties or assets is bound; (b) conflict with, result in a breach of or\nconstitute (with due notice or lapse of time or both) a default under any such\nindenture, agreement or other instrument; or (c) result in the creation or\nimposition of any lien, charge, restriction, claim or encumbrance of any nature\nwhatsoever upon any of the properties or assets of the Surviving Corporation or\nany of its subsidiaries.\n\n                 4.3      Validity.  This Agreement has been duly executed and\ndelivered by the Surviving Corporation and assuming that it constitutes the\nlegal, valid and binding obligation of the Merged Corporation, constitutes the\nlegal, valid and binding obligation of the Surviving Corporation, enforceable\nin accordance with its terms, subject, as to enforcement, to bankruptcy,\ninsolvency, reorganization, and other laws of general applicability relating to\nor affecting creditors' rights and to general equity principles.\n\n\n            SECTION 5.  INTERIM COVENANTS AND ADDITIONAL AGREEMENTS\n\n                 5.1      Merged Corporation and Shareholder.  The Merged\nCorporation covenants and agrees that from the date of this Agreement through\nthe earlier of the Closing Date as defined in Section 8.1, or the termination\nof this Agreement:\n\n                          (a)     Certificate of Incorporation and Bylaws.  The\nMerged Corporation will not change its Charter or Bylaws.\n\n                          (b)     Corporate Existence.  The Merged Corporation\nshall maintain its corporate existence and rights in full force and effect.\n\n                          (c)     Capitalization.  The Merged Corporation will\nnot make any change in its authorized, issued, or outstanding capital stock;\ngrant any stock option or right to purchase shares of its capital stock; issue\nany security convertible into shares of its capitol stock; purchase, redeem,\nretire, or otherwise acquire any shares of its capital stock; or agree to do\nany of the foregoing.\n\n                          (d)     Distributions.  The Merged Corporation will\nnot make or declare, set aside, or pay any dividend or other distribution in\nrespect of its capital stock.\n\n                          (e)     Shareholder's Meeting.  The Merged\nCorporation shall submit this Agreement to a special meeting of its\nshareholders on or before the Closing Date to obtain the requisite shareholder\napproval.\n\n                          (f)     Business in Ordinary Course.  The Merged\nCorporation will conduct its business in the ordinary course consistent with\npast practice.\n\n                          (g)     Restrictive Agreements Prohibited.  The\nMerged Corporation shall not become a party to any agreement which by its terms\nwould restrict the Merged Corporation's performance of this Agreement.\n\n\n\n\n                                      8\n\n                          (h)     Banking Arrangements; Powers of Attorney.\nThe Merged Corporation will not make any change in its banking and safe deposit\narrangements and will not grant any powers of attorney.\n\n                          (i)     Accounting Practices.  Except as required by\ngenerally accepted accounting principles, the Merged Corporation will not make\nany changes in its accounting methods or practices.\n\n                          (j)     Compliance with Laws.  The Merged Corporation\nshall use commercially reasonable efforts to comply with all applicable laws,\nrules, regulations and orders of which it is aware, noncompliance with which\ncould materially adversely affect its business or properties.\n\n                          (k)     Keeping of Records and Books of Account.  The\nMerged Corporation shall keep adequate records and books of account consistent\nwith past practice, in which complete entries will be made in accordance with\ngenerally accepted accounting principles consistently applied, reflecting all\nfinancial transactions of the Merged Corporation, and in which all proper\nreserves for depreciation, depletion, obsolescence, amortization, taxes, bad\ndebts and other purposes in connection with its business shall be made.\n\n                          (l)     Merger.  The Merged Corporation will not\nmerge or consolidate with any other corporation; sell or lease all or\nsubstantially all of its assets and business; acquire all or substantially all\nof the stock of the business or assets of any other person, corporation, or\nbusiness organization; or agree to do any of the foregoing.\n\n                 5.2      The Surviving Corporation.  The Surviving Corporation\ncovenants and agrees that from the date of this Agreement through the earlier\nof the Closing Date as defined in Section 8.1, or the termination of this\nAgreement:\n\n                          (a)     Certificate of Incorporation.  The Surviving \nCorporation will not change its Charter or By-Laws.\n\n                          (b)     Corporate Existence.  The Surviving\nCorporation shall maintain its corporate existence and rights in full force and\neffect.\n\n                          (c)     Shareholder's Meeting.  The Surviving\nCorporation shall submit this Agreement to a special meeting of its\nshareholders on or before the Closing Date to obtain the requisite shareholder\napproval.\n\n                          (d)     Business in Ordinary Course.  The Surviving\nCorporation shall conduct its business in the ordinary course consistent with\npast practice.\n\n                          (e)     Restrictive Agreements Prohibited.  The\nSurviving Corporation shall not become a party to any agreement which by its\nterms would restrict the Surviving Corporation's performance of this Agreement.\n\n\n\n\n                                      9\n\n                          (f)     Compliance with Laws.  The Surviving\nCorporation shall use commercially reasonable efforts to comply with all\napplicable laws, rules, regulations and orders of which they are aware,\nnoncompliance with which could materially adversely affect its business or\nproperties.\n\n    SECTION 6.  CONDITIONS PRECEDENT TO THE MERGED CORPORATION'S OBLIGATIONS\n\n                 The Merged Corporation's obligation to consummate the Merger\nshall be subject to the fulfillment on or before the Closing Date of each of\nthe following conditions, unless waived in writing by the Merged Corporation.\n\n                 6.1      Representations and Warranties.  The representations\nand warranties of the Surviving Corporation set forth in Section 4 hereof shall\nbe true, complete and correct on and as of the Closing Date (except as affected\nby transactions contemplated hereby) with the same effect as though such\nrepresentations and warranties had been made on and as of such date.\n\n                 6.2      The Surviving Corporation's Covenants.  The Surviving\nCorporation shall have performed and complied with all covenants required by\nSection 5.2 of this Agreement to be performed by it on or before the Closing\nDate.\n\n                 6.3      All Proceedings to be Satisfactory.  All corporate\nand shareholder proceedings to be taken by the Surviving Corporation in\nconnection with the transactions contemplated hereby and all documents incident\nthereto shall be satisfactory in form and substance to the Merged Corporation\nand its counsel, and the Merged Corporation and its counsel shall have received\nall such counterpart originals or certified or other copies of such documents.\n\n                 6.4      Approval of the Surviving Corporation's Shareholder.\nThis Agreement shall have been approved by the affirmative vote of the\nSurviving Corporation's shareholders requisite therefor under the Surviving\nCorporation's Charter and the laws of the State of Maryland.\n\n                 6.5      Supporting Documents.  The Merged Corporation shall\nhave received copies of the following documents:\n\n                          (a)     (1) the Charter of the Surviving Corporation,\ncertified as of a recent date by its Secretary and (2) a certificate of the\nSecretary of State of the State of Alabama dated as of a recent date as to the\ndue incorporation and good standing of JFF and the Surviving Corporation.\n\n                          (b)     a certificate of the Secretary of the\nSurviving Corporation dated the Closing Date and certifying: (1) that attached\nthereto is a true and complete copy of the By-laws of the Surviving Corporation\nas in effect on the date of such certification; (2) that attached thereto is a\ntrue and complete copy of all resolutions adopted by the Board of Directors of\nthe Surviving Corporation and the shareholders of the Surviving Corporation\nauthorizing the execution, delivery and performance of this Agreement, and that\nall such resolutions are in full force and effect and are all the resolutions\nadopted in connection with the transactions contemplated by this Agreement; (3)\nto the incumbency and specimen signature of each officer of the Surviving\nCorporation executing this Agreement and any certificate or instrument\nfurnished pursuant hereto, and a certification by another officer of the\nSurviving Corporation as to the incumbency and signature of the officer signing\nthe certificate referred to in this clause.\n\n\n\n\n                                      10\n\n                 6.6      Deliver of Closing Items.  The Surviving Corporation\nshall have delivered all of the items set forth in Section 8.3 hereof.\n\n\n  SECTION 7.  CONDITIONS PRECEDENT TO THE SURVIVING CORPORATION'S OBLIGATIONS\n\n                 The obligations of the Surviving Corporation under this\nAgreement are subject to the fulfillment, before or on the Closing Date, of\neach of the following conditions, unless waived in writing by the Surviving\nCorporation:\n\n                 7.1      Representations and Warranties.  The representations\nand warranties of the Merged Corporation set forth in Section 3 hereof shall be\ntrue, complete and correct on and as of the Closing Date (except as affected by\ntransactions contemplated hereby) with the same effect as though such\nrepresentations and warranties had been made on and as of such date.\n\n                 7.2      The Merged Corporation's Covenants.  The Merged\nCorporation shall have performed and complied with all covenants required by\nSection 5.1 of this Agreement to be performed by it on or before the Closing\nDate.\n\n                 7.3      All Proceedings to be Satisfactory.  All corporate\nand shareholder proceedings to be taken by the Merged Corporation in connection\nwith the transactions contemplated hereby and all documents incident thereto\nshall be satisfactory in form and substance to the Surviving Corporation and\nits counsel, and the Surviving Corporation and its counsel shall have received\nall such counterpart originals or certified or other copies of such documents.\n\n                 7.4      Supporting Documents.  The Surviving Corporation and\nits counsel shall have received copies of the following documents:\n\n                          (a)     (1) the Charter of the Merged Corporation,\ncertified as of a recent date by its Secretary, and (2) a certificate of the\nSecretary of State of the State of Alabama dated as of a recent date as to the\ndue incorporation and good standing of the Merged Corporation.\n\n                          (b)     a certificate of the Secretary of the Merged\nCorporation dated the Closing Date and certifying: (1) that attached thereto is\na true and complete copy of the By-laws of the Merged Corporation as in effect\non the date of such certification; (2) that attached thereto is a true and\ncomplete copy of all resolutions adopted by the Board of Directors or the\nstockholders of the Merged Corporation authorizing the execution, delivery and\nperformance of this Agreement, and that all such resolutions are in full force\nand effect and are all the resolutions adopted in connection with the\ntransactions contemplated by this Agreement; (3) that the Charter has not been\namended since the date of the last amendment referred to in the certificate\ndelivered pursuant to clause (a)(2) above; and (4) to the incumbency and\nspecimen signature of each officer of the Merged Corporation executing this\nAgreement and any certificate or instrument furnished pursuant hereto, and a\ncertification by another officer of the Merged Corporation as to the incumbency\nand signature of the officer signing the certificate referred to in this\nclause.\n\n\n\n\n                                      11\n\n                 7.5      Approval of the Shareholder.  This Agreement shall \nhave been approved by the affirmative vote of the Merged Corporation's \nshareholders requisite therefor under the Merged Corporation's Charter and the \nlaws of the State of Alabama.\n\n                 7.6      Deliver of Closing Items.  The Merged Corporation\nshall have delivered all of the items set forth in Section 8.2 hereof.\n\n                              SECTION 8.  CLOSING\n\n                 8.1      Time and Place.  The closing of the transaction\ncontemplated herein shall take place at the offices of Sirote &amp; Permutt, P.C.\nat 12:00 p.m., c.s.t. on the date (the 'Closing Date') that this Agreement and\nthe documents to be delivered by the Merged Corporation and the Surviving\nCorporation under Sections 8.2 and 8.3 are delivered to FATIC pursuant to the\nEscrow Letter, or at such other time or place as the parties hereto may agree\nupon.\n\n                 8.2      Actions by the Merged Corporation.  On or prior to\nthe Closing Date the Merged Corporation shall deliver, or cause to be\ndelivered, to FATIC the following:\n\n                          (a)     Certificates representing all the issued and\noutstanding shares of common stock of the Merged Corporation;\n\n                          (b)     All books and records of the Merged\nCorporation, including without limitation, the documents referenced in Section\n7.4 hereof, original minute books, stock record books (including all unissued\nand cancelled stock certificates), accounting records, tax returns, and all\nother corporate and business records;\n\n                          (c)     A Certificate of Good Standing for the Merged\nCorporation from the Secretary of State of the State of Alabama as required by\nSection 7.4(a)(2);\n\n                          (d)     A certificate from the President of the\nMerged Corporation certifying as to the fulfillment of the conditions set forth\nin Sections 7.1 and 7.2 hereof; and\n\n                          (e)     A Consent to Assignment of Guaranty of\nObligations Pursuant to Lease Agreement dated as of April 19, 1994, signed by\nOrNda HealthCorp.\n\n                          (f)     A Consent to Assignment of Lease Agreement\ndated as of April 19, 1994, signed by Midway Hospital Medical Center, Inc.\n\n                          (g)     The executed Articles of Merger to be filed\nwith the State of Alabama;\n\n                 8.3      Actions of the Surviving Corporation.  On or prior to\nthe Closing, the Surviving Corporation shall deliver, or cause to be delivered,\nto FATIC the following:\n\n                          (a)     The documents referenced in Section 6.5\nhereof;\n\n                          (b)     A Certificate of Good Standing for the\nSurviving Corporation from the Secretary of State of Maryland as required by\nSection 6.5(a)(2);\n\n\n\n\n                                      12\n\n                          (c)     A certificate from the President of the\nSurviving Corporation certifying as to the fulfillment of the conditions set\nforth in Sections 6.1 and 6.2 hereof; and\n\n                          (d)     The executed Articles of Merger to be filed\nwith the State of Maryland;\n\n\n                      SECTION 9.  POST-CLOSING AGREEMENTS\n\n                 9.1      The Surviving Corporation agrees to preserve and keep\nthe books and records of the Merged Corporation delivered to the Surviving\nCorporation hereunder for a period of seven years from the Effective Date, and\nto make them available, during normal business hours and upon reasonable\nrequest, to the directors, officers, and the shareholders of the Merged\nCorporation, or their representatives, in connection with any claims or legal\nproceedings by or against the directors, officers, or the shareholders of the\nMerged Corporation.  In the event that the Surviving Corporation proposes to\ndestroy any such books and records, it shall give the shareholders of the\nMerged Corporation reasonable advance notice thereof, and said shareholders\nshall have the right to obtain or copy such books and records prior to their\ndestruction.\n\n\n                            SECTION 10.  TERMINATION\n\n                 10.1     Circumstances of Termination.  This Agreement may be\nterminated (notwithstanding approval by the shareholders of a party hereto):\n\n                          (a)     By the board of directors of the Merged\nCorporation, if any condition provided in Section 6 hereof has not been\nsatisfied or waived on or before the Closing Date; or\n\n                          (b)     By the board of directors of the Surviving\nCorporation if any condition provided in Section 7 hereof has not been\nsatisfied or waived on or before the Closing Date.\n\n                 10.2     Effect of Termination.  In the event of a termination\nof this Agreement pursuant to Section 10.1(a) or (b) hereof, no party (or any\nof its officers, directors, and shareholders) shall be liable to any other\nparty for any costs, expenses, damage, or loss of anticipated profits\nhereunder.\n\n                 10.3     Survival.  Notwithstanding the termination of this\nAgreement under this Section 10, to the extent applicable, the indemnification\nprovisions of Section 11 hereof shall survive such termination.\n\n\n                   SECTION 11.  SURVIVAL AND INDEMNIFICATION\n\n                 11.1     Nature of Statements.  All representations and\nwarranties of the parties set forth in Section 3 and 4 hereof and the related\nschedules attached hereto shall survive the Effective Date for a period of one\nyear, and the parties shall be entitled to rely upon such representations and\nwarranties irrespective of any investigations made by such parties.\n\n\n\n\n                                      13\n\n                 11.2     Mutual Indemnity.\n\n                          (a)     The Merged Corporation hereby indemnifies the\nSurviving Corporation against any loss or liability of any type or nature,\nincluding reasonable attorney's fees, on account of a breach of any\nrepresentation or warranty made in Section 3 of this Agreement or in the\nrelated Schedules attached hereto or breach of any covenant or obligation in\nthis Agreement.\n\n                          (b)     The Surviving Corporation hereby indemnifies\nthe Merged Corporation against any loss or liability of any type or nature,\nincluding reasonable attorney's fees, on account of a breach of any\nrepresentation or warranty made in Section 4 of this Agreement or in the\nrelated Schedules attached hereto, breach of any covenant or obligation in this\nAgreement, liabilities assumed in the Merger.\n\n                 11.3     Matters Involving Third Parties.  Promptly after\nreceipt by an indemnified party of notice of the commencement of any action or\nthe presentation or other assertion of any claim which becomes known, such\nindemnified party shall, give prompt notice thereof to the indemnifying party,\nbut the failure so to notify the indemnifying party shall not relieve the\nindemnifying party of any liability that it may have to any indemnified party\nexcept to the extent that the defense of such claim or action is materially\nprejudiced thereby.  In case any such action or claim shall be asserted against\nan indemnified party, it shall give notice to the indemnifying party of the\ncommencement thereof and the indemnifying party shall be entitled to\nparticipate therein and, to the extent that it shall wish, to assume the\ndefense thereof with counsel satisfactory to such indemnified person and, after\nnotice to that effect from the indemnifying party, the indemnified party shall\nhave the right to participate therein and to retain its own counsel, but the\nindemnifying party shall not be liable to the indemnified party under such\naction for any fees of other counsel or any other expenses, in each case\nsubsequently incurred by such indemnified party in connection with the defense\nthereof other than reasonable costs of investigation and preparation unless\nrepresentation of both parties by the same counsel would be inappropriate due\nto actual or potential differing interests between them.  If the indemnifying\nparty assumes the defense of such an action, (a) no compromise or settlement\nthereof may be effected by the indemnifying party without the indemnified\nparty's consent (which shall not be unreasonably withheld) unless (i) there is\nno finding or admission of any violation of law or any violation of the rights\nof any person and no effect on any other claims that may be made against the\nindemnified party and (ii) the sole relief provided is monetary damages that\nare paid in full by the indemnifying party and (b) the indemnifying party shall\nhave no liability with respect to any compromise or settlement thereof effected\nwithout its consent (which shall not be unreasonably withheld).  If notice is\ngiven to the indemnifying party of the commencement of any action and it does\nnot, within ten days after the indemnified party's notice is given, give notice\nto the indemnified party of its election to assume the defense thereof, the\nindemnifying party shall be bound by any determination made in such action or\nany compromise or settlement thereof effected by the indemnified party.\nNotwithstanding the foregoing, if any indemnified party determines in good\nfaith that there is a reasonable probability that an action may materially and\nadversely affect it or its affiliates other than as a result of monetary\ndamages, such indemnified party may, by notice to the indemnifying party assume\nthe exclusive right to defend, compromise or settle such action, but the\nindemnifying party shall not be bound by any determination of an action so\ndefended or any compromise or settlement thereof effected without its consent\n(which shall not be unreasonably withheld).  The parties agree to cooperate to\nthe fullest extent possible in connection with any claim for which\nindemnification is sought under this Agreement.  As used herein, the term\nliability shall include all reasonable costs of litigation or threatened\nlitigation, including attorney's fees, incurred in connection with litigation\nbrought or threatened by third parties.\n\n\n\n\n                                      14\n\n\n                        SECTION 12.  GENERAL PROVISIONS\n\n                 12.1     Expenses.  Each party hereto will pay its own\nexpenses in connection with the transactions contemplated hereby, whether or\nnot such transactions shall be consummated.\n\n                 12.2     Survival of Agreements.  Except for the post-closing\nagreements contained in Section 9 hereof and the right to indemnification under\nSection 11 hereof, which shall survive the execution and delivery of this\nAgreement and the Closing Date for the periods specified therein or as provided\nby law, all other covenants and agreements contained herein shall be deemed to\nhave been fulfilled on the Closing Date.\n\n                 12.3     Entire Agreement.  This Agreement, including the\nSchedules and Exhibits hereto, constitutes the sole and entire agreement of the\nparties with respect to the subject matter hereof.  All Schedules and Exhibits\nhereto are hereby incorporated herein by reference.\n\n                 12.4     Amendments.  Except as may be otherwise provided\nelsewhere herein, this Agreement may not be amended or modified, and no\nprovisions hereof may be waived, without the written consent of the parties\nhereto.\n\n                 12.5     Severability.  If any provision of this Agreement\nshall be declared void or unenforceable by any judicial or administrative\nauthority, the validity of any other provision and of the entire Agreement\nshall not be affected thereby.\n\n                 12.6     Titles and Subtitles.  The titles and subtitles used\nin this Agreement are for convenience only and are not to be considered in\nconstruing or interpreting any term or provision of this Agreement.\n\n                 12.7     Governing Law. This Agreement shall be governed by\nand construed and enforced in accordance with the laws of the State of Alabama.\n\n                 12.8     Assignment. This Agreement shall inure to the benefit\nof, and be binding upon, the parties hereto and their successors and assigns;\nprovided, however, that any assignment by either party of its rights under this\nAgreement without the written consent of the other party shall he void.\n\n                 12.9     Counterparts. This Agreement may be executed\nsimultaneously in two or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same\ninstrument.\n\n                 12.10    Attorneys' Fees.  If legal action, including any\naction on appeal, or arbitration is necessary to enforce the terms and\nconditions of this Agreement, the prevailing party will be entitled to recover\nreasonable attorneys' fees and costs, as fixed by a court of competent\njurisdiction or by the arbitrators.\n\n                 12.11    Arbitration.  Any dispute arising after the Closing\nDate from or in connection with this Agreement will be determined in accordance\nwith the then current rules for commercial arbitration of the American\nArbitration Association.  If proper notice of any hearing has been given, the\n\n\n\n\n                                      15\n\narbitrator(s) will have full power to proceed to take evidence or to perform\nany other acts necessary to arbitrate the matter in the absence of any party\nwho fails to appear.  Each party hereto waives any rights it may have to demand\ntrial by jury or to seek punitive damages.  The arbitrator will have no power\nto assess punitive damages or make any award that modifies or suspends any\nlawful provision of this Agreement.  All expenses of arbitration must be paid\nby the party against whom the arbitrator(s) renders a decision.  Judgment upon\nany award and\/or enforcing any order of the arbitrator may be entered by any\ncourt of competent jurisdiction.\n\n                 IN WITNESS WHEREOF, the parties to this Agreement and Plan of\nMerger, pursuant to the authority duly given by the respective Boards of\nDirectors, have caused this Agreement and Plan of Merger to be executed on this\nthe 27th day of May, 1994.\n\n\n\n                                            CAPSTONE CAPITAL TRUST, INC.\n                                          \n                                            By \/s\/ John W. McRoberts\n                                               ----------------------------\n                                               Its President\n                                          \n(CORPORATE SEAL)                          \n                                          \n                                          \n                                          \n                                            MIDWAY ACQUISITION COMPANY, INC.\n                                          \n                                            By \/s\/ John W. McRoberts\n                                               ----------------------------\n                                               Its President\n                                          \n(CORPORATE SEAL)                          \n                                          \n\n\n\n                                      16\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7751],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9622,9626],"class_list":["post-43037","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-healthsouth-corp","corporate_contracts_industries-health__misc","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43037","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43037"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43037"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43037"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43037"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}