Exhibit 10.1
(TEXAS)
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PREMISES TRANSFER AGREEMENT
Dated August 14, 2001
among
CORNELL COMPANIES, INC.
CORNELL CORRECTIONS OF GEORGIA, ▇.▇.
▇▇▇▇▇▇▇ CORRECTIONS OF OKLAHOMA, INC.
CORNELL CORRECTIONS OF TEXAS, INC.
AND
WBP LEASING, INC.
as Transferors
and
MUNICIPAL CORRECTIONS FINANCE, L.P.
as Transferee
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TABLE OF CONTENTS
Page
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Background.....................................................................1
A. Definitions..................................................1
B. Transfer of the Premises.....................................1
Statement of Agreement.........................................................2
Section 1. Transfer of the Premises...................3
Section 2. Contractual Condemnation Rights............3
Section 3. Payment of Acquisition Price...............6
Section 4. Acceptance by MCF..........................6
Section 5. Representations and Warranties.............8
Section 6. Documentation of Transfers................10
Section 7. Further Assurances........................10
Section 8. Notices...................................10
Section 9. Entire Agreement..........................10
Section 10. Severability; Headings....................10
Section 11. Assignment................................11
Section 12. No Waiver; Cumulative Remedies............11
Section 13. Counterparts..............................11
Section 14. Third Party Beneficiaries.................11
Section 15. No Petition...............................11
Section 16. Governing Law.............................11
Section 17. Allocation of Acquisition Price...........12
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PREMISES TRANSFER AGREEMENT
This
Premises Transfer Agreement (the "AGREEMENT") is entered into on
August 14, 2001, by and among Cornell Companies, Inc., a corporation organized
and existing under the laws of the State of Delaware ("CORNELL"), Cornell
Corrections of Georgia, L.P., a limited partnership organized and existing under
the laws of the State of Delaware ("CORNELL-GEORGIA"), Cornell Corrections of
Oklahoma, Inc., a corporation organized and existing under the laws of the State
of Delaware ("CORNELL-OKLAHOMA"), Cornell Corrections of
Texas, Inc., a
corporation organized and existing under the laws of the State of Delaware
("CORNELL-
TEXAS"), WBP Leasing, Inc., a corporation organized and existing under
the laws of the State of Delaware ("WBP LEASING") (Cornell-Georgia,
Cornell-
Texas, Cornell-Oklahoma and WBP Leasing are hereinafter collectively
referred to as the "SELLING CORNELL AFFILIATES" and sometimes individually as a
"SELLING CORNELL AFFILIATE") and Municipal Corrections Finance, L.P., a limited
partnership organized and existing under the laws of the State of Delaware
("MCF").
BACKGROUND
The following statements are the mutual representations of the parties
with respect to certain factual matters forming the basis for this Agreement and
are an integral part of this Agreement.
A. DEFINITIONS. Capitalized terms not specifically defined in
this Agreement shall have the meanings assigned to them in the Indenture, as
supplemented by the First Series Supplement thereto (as amended, modified or
restated from time to time, the "INDENTURE"), each dated as of August 1, 2001
relating to the Taxable Revenue Bonds, Series 2001 (the "BONDS") and each being
by and between MCF as Issuer and The Chase Manhattan Bank, as trustee (the
"TRUSTEE") and securities intermediary (the "SECURITIES INTERMEDIARY").
B. TRANSFER OF THE PREMISES. Cornell and the Selling Cornell
Affiliates have each sold and transferred all of their respective ownership
interest in and to the Premises (as hereinafter defined) to MCF pursuant to the
terms of the following agreements:
(i) that certain Limited Warranty Deed (the "▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ GEORGIA DEED") dated August 14, 2001, executed by
Cornell-Georgia, in favor of MCF;
(ii) that certain Warranty Deed (the "CORDOVA, ALASKA
DEED") dated August 14, 2001, executed by WBP Leasing, in favor of MCF;
(iii) that certain Warranty Deed (the "PARKVIEW, ALASKA
DEED") dated August 14, 2001, executed by WBP Leasing in favor of MCF;
(iv) that certain Warranty Deed (the "TUNDRA, ALASKA
DEED") dated August 14, 2001, executed by WBP Leasing in favor of MCF;
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(v) that certain Limited Warranty Deed (the "OHIO
DEED") dated August 14, 2001, executed by WBP Leasing in favor of MCF;
(vi) that certain Deed (the "MARIENVILLE, PENNSYLVANIA
DEED") dated August 14, 2001, executed by WBP Leasing in favor of MCF;
(vii) that certain Special Warranty Deed (the "▇▇▇▇▇▇▇
CENTER,
TEXAS DEED") dated August 14, 2001, executed by Cornell-
Texas,
in favor of MCF;
(viii) that certain Special Warranty Deed (the "▇▇▇▇,
TEXAS
DEED") dated August 14, 2001, executed by Cornell in favor of MCF;
(ix) that certain Special Warranty Deed (the "▇▇▇▇▇▇,
TEXAS DEED") dated August 14, 2001, executed by Cornell-
Texas in favor
of MCF;
(x) that certain Assignment and Assumption of Leases
(the "BIG SPRING ASSIGNMENT") dated August 14, 2001, executed by
Cornell-Texas in favor of MCF, assigning all right, title and interest
of Cornell-Texas in and to those leases and subleases described on
Exhibit A thereto (as amended from time to time, the "BIG SPRING
COMPLEX LEASES") with The City of Big Spring, Texas (the "BIG SPRING
CENTER LANDLORD");
(xi) that certain Assignment and Assumption of Lease
(the "GREAT PLAINS ASSIGNMENT") dated August 14, 2001, executed by
Cornell-Oklahoma, in favor of MCF, assigning all right, title and
interest of Cornell-Oklahoma in and to that certain lease described on
Exhibit A thereto (as amended from time to time, the "GREAT PLAINS
LEASE") with the ▇▇▇▇▇▇ Economic Development Authority (the "GREAT
PLAINS LANDLORD"); and
(xii) that certain Assignment of Access Easement (Big
Spring, Texas) (the "ASSIGNMENT OF EASEMENT") dated August 14, 2001,
executed by Cornell, in favor of MCF.
The ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Georgia Deed, the ▇▇▇▇▇▇▇, Alaska Deed, the
Parkview, Alaska Deed, the Tundra, Alaska Deed, the Ohio Deed, the
Marienville, Pennsylvania Deed, the ▇▇▇▇▇▇▇ Center, Texas Deed, the
▇▇▇▇, Texas Deed, the ▇▇▇▇▇▇, Texas Deed, the Big Spring Assignment,
the Great Plains Assignment and the Assignment of Easement may be
hereinafter referred to from time to time collectively as the
"CONVEYANCE DOCUMENTS" and the land, facilities and premises sold and
assigned by each such Conveyance Document may be hereinafter referred
to from time to time collectively as the "PREMISES." The Premises are
more particularly described on EXHIBIT A attached hereto and
incorporated herein for all purposes.
STATEMENT OF AGREEMENT
The parties, each in consideration of the promises of the other and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, hereby agree as follows:
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Section 1. TRANSFER OF THE PREMISES.
(a) By execution of this Agreement, Cornell and the Selling
Cornell Affiliates each hereby acknowledge that, pursuant to
the Conveyance Documents, it has fully, completely and
absolutely transferred, assigned, set over, granted, sold and
otherwise conveyed to MCF all of its respective right, title
and interest, of whatever kind and nature, in and to the
Premises owned by each, including, without limitation, all
improvements, fixtures, equipment and supplies located thereon
and all rights and privileges appertaining thereto.
(b) In connection with such transfer, Cornell and the Selling
Cornell Affiliates each further agree to record and file, at
its own expense, the Conveyance Documents in such manner and
in such jurisdictions as are necessary to perfect the sale,
transfer and assignment of its respective Premises to MCF and
to deliver a file-stamped copy of such Conveyance Documents or
other evidence of such filings to MCF and the Trustee on or
promptly after the date of issuance of the Bonds pursuant to
the Indenture. MCF agrees to record such Conveyance Documents
and to make any other filings in connection with such transfer
as are necessary or required to perfect the transfer of the
Premises, should Cornell or any of the Selling Cornell
Affiliates fail to do so, all at the cost and expense of
Cornell or such Selling Cornell Affiliate. The Trustee and MCF
shall be entitled to rely upon the filings made by Cornell and
the Selling Cornell Affiliates.
(c) In connection with such transfer, Cornell and the Selling
Cornell Affiliates each further agree, at its own respective
expense, on or prior to the Closing Date, to indicate in its
books and records that the Premises owned by each have been
sold to MCF pursuant to the Conveyance Documents.
Section 2. CONTRACTUAL CONDEMNATION RIGHTS.
(a) The parties hereto recognize and agree that the Great Plains
Correctional Facility and the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Prison are
burdened and benefited by certain rights imposed by the
Oklahoma Department of Corrections and the Georgia Department
of Corrections (the "CONTRACTUAL CONDEMNATION RIGHTS"), as
more fully described as follows:
(1) GREAT PLAINS CORRECTIONAL FACILITY. The Hinton
Economic Development Authority (the "AUTHORITY") is
the owner of the real estate and facility at Hinton,
Oklahoma, which is a correctional facility (the
"GREAT PLAINS CORRECTIONAL FACILITY") and which
houses medium-security offenders pursuant to that
certain Correctional Services Contract between the
Authority and the State of Oklahoma Department of
Corrections ("STATE OF OKLAHOMA"), dated July 1, 1998
(as amended, modified, restated, or extended, the
"OKLAHOMA PRISONER SERVICE CONTRACT"). The Authority
subleased the Facility to Cornell-Oklahoma pursuant
to that certain Lease Agreement dated December 31,
1999 (as amended, modified, restated, or extended,
the "HINTON SUBLEASE") among the Authority, as
sublessor, the
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Town of ▇▇▇▇▇▇, Oklahoma and Cornell-Oklahoma, as
assigned to MCF pursuant to the Great Plains
Assignment. Pursuant to Section 2.3 of the Oklahoma
Prisoner Service Contract (and as required by
Oklahoma law, 57 Okla. Stat. ▇▇▇. Section 561.1, for
all private prison contractors), the State of
Oklahoma requires an option from any then owner of
the Great Plains Correctional Facility to purchase
such facility (the "OKLAHOMA PURCHASE OPTION") upon
at least 120 days notice and exercisable annually at
the beginning of each fiscal year at a purchase price
of fair market value determined using a cost approach
(the "OKLAHOMA OPTION PRICE"). However, in the event
the statutory provision requiring such purchase
option is repealed, Section 2.3 of the Oklahoma
Prisoner Service Contract is voided. The State of
Oklahoma further requires Cornell-Oklahoma as
operator (and any successor operator) thereunder to
procure legal documentation from the then owner of
the Great Plains Correctional Facility to the effect
that such owner recognizes the Oklahoma Purchase
Option. In furtherance thereof, the Authority
required and Cornell-Oklahoma agreed that Section
13.01 of the Hinton Sublease would satisfy the State
of Oklahoma's requirement. Pursuant to Section 2.4 of
the Oklahoma Prisoner Service Contract, if the
current owner sells, the new owner of the Great
Plains Correctional Facility takes subject to the
Oklahoma Purchase Option. Any references in this
Agreement to the Oklahoma Purchase Option shall be
null and void upon the earliest to occur of (i) the
repeal of the statutory provision requiring such
purchase option or any other voluntary revocation or
renunciation by the State of Oklahoma of such
Oklahoma Purchase Option or (ii) any future amendment
or replacement of the Oklahoma Prisoner Service
Contract with a successor or replacement contract
without reservation in the State of Oklahoma of such
Oklahoma Purchase Option or (iii) any termination of
the Oklahoma Prisoner Service Contract by the
Authority and replacement thereof with any other
prisoner service contract with any other governmental
authority without analogous terms.
(2) ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ PRISON. Prior to the transfer
contemplated hereby and by the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Deed,
Cornell-Georgia is the owner of the real estate and
facility at Folkston, Georgia (the "▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
PRISON"). Pursuant to the Contract dated June 2, 1997
(as amended, modified, restated, or extended, the
"GEORGIA PRISONER SERVICE CONTRACT") with the Georgia
Department of Corrections (the "STATE OF GEORGIA"),
Cornell-Georgia houses medium-security offenders.
Section 25 of the Georgia Prisoner Service Contract
incorporates by reference the terms of Request for
Proposal No. ▇▇▇-▇▇▇-▇▇▇▇▇▇ (the "RFP"). Pursuant to
Section 1.21.2 of the Georgia Prisoner Service
Contract, the State of Georgia requires an option at
any time to purchase the entire ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Prison (the "GEORGIA PURCHASE OPTION") for the actual
cost, less depreciation, of land acquisition,
construction and FF&E (as defined therein) or the
fair market value of the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Prison,
whichever is less (the "GEORGIA
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OPTION PRICE"). If all grounds, sidewalks, roadways,
parking lots, buildings, and FF&E have not been
maintained in a good state of repair and appearance,
normal wear and tear excluded, then the Georgia
Option Price shall be reduced accordingly. Pursuant
to Section 32 of the Georgia Prisoner Service
Contract, such Contract is binding on and inures to
the benefits of the parties and their successors and
assigns. Any references in this Agreement to the
Georgia Purchase Option shall be null upon the
earliest to occur of (i) any voluntary revocation or
renunciation by the State of Georgia of such Georgia
Purchase Option or (ii) any future amendment or
replacement of the Georgia Prisoner Service Contract
with a successor or replacement contract without
reservation in the State of Georgia of such Georgia
Purchase Option or (iii) any termination of the
Georgia Prisoner Service Contract by Cornell-Georgia
and replacement thereof with any other prisoner
service contract with any other governmental
authority without analogous terms.
(b) This Agreement and the respective rights of the State of
Oklahoma and the State of Georgia in connection with the
Oklahoma Purchase Option and the Georgia Purchase Option, as
the case may be, under the Oklahoma Prisoner Service Contract
and the Georgia Prisoner Service Contract, respectively, touch
and concern the land and bind MCF as purchaser of the Great
Plains Correctional Facility and the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Prison
from Cornell-Oklahoma and Cornell-Georgia. The parties hereto
agree that this Agreement and the Oklahoma Purchase Option or
the Georgia Purchase Option, as the case may be, (1) shall
constitute covenants running with the land pertaining to the
Great Plains Correctional Facility and the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Prison, respectively (and the respective interests therein of
the State of Oklahoma, the State of Georgia, MCF and
Cornell-Oklahoma or Cornell-Georgia), (2) shall be binding on
every person having any fee, leasehold or other interest in
the Great Plains Correctional Facility or the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Prison, as the case may be, and (3) shall inure to the benefit
of such parties and their respective successors, conservators,
trustees, receivers, assigns, heirs and personal
representatives and each future owner of the Great Plains
Correctional Facility or the ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Prison, as the
case may be (and the respective interest therein of the State
of Oklahoma, the State of Georgia, MCF and Cornell-Oklahoma or
Cornell-Georgia). Each of MCF and Cornell-Oklahoma or
Cornell-Georgia, as the case may be, covenant and agree (i) to
give notice of the existence of this Agreement and the
Oklahoma Purchase Option or the Georgia Purchase Option, as
the case may be, to any successor in interest of such party
with respect to the Great Plains Correctional Facility or the
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Prison and to make any assignment or other
transfer of its interest(s) in such Premises expressly subject
to this Agreement and the Oklahoma Purchase Option or the
Georgia Purchase Option, as the case may be, and (ii) to
require that any such successor in interest of such party be
bound by, and assume such party's obligations under, this
Agreement and the Oklahoma Purchase Option or the Georgia
Purchase Option with respect to the interest(s) in such
Premises so transferred. If any of the interests of MCF,
Cornell-Oklahoma
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or Cornell-Georgia are assigned or otherwise transferred, the
interests so assigned or transferred shall remain fully
subject to and burdened by this Agreement and the Oklahoma
Purchase Option or the Georgia Purchase Option, as the case
may be, as if no assignment or transfer had been made.
(c) In the event of any bankruptcy affecting any person having any
fee, leasehold or other interest in any of the Premises, the
parties agree that this Agreement shall, to the maximum extent
permitted by law, be considered an agreement that runs with
the land and that is not rejectable, in whole or in part, by
the trustee for the debtor's estate or the debtor in
possession.
Section 3. PAYMENT OF ACQUISITION PRICE. The total acquisition
price of $173,000,000 (the "TOTAL ACQUISITION PRICE") for all Premises shall be
paid in full on the Closing Date; Cornell and the Selling Cornell Affiliates
each agree to sell, and MCF agrees to pay, the individual acquisition prices
(the "ACQUISITION PRICE") allocated to each Premises, respectively, as set forth
in the last column entitled, "Total Acquisition Price," on EXHIBIT B attached
hereto and incorporated herein by reference.
Section 4. ACCEPTANCE BY MCF.
(a) MCF hereby acknowledges its purchase and acceptance of all
right, title and interest in and to the Premises pursuant to
the terms of this Agreement.
(b) It is the express intent of the parties hereto that the
conveyance, transfer and assignment to MCF of all right, title
and interest of each of Cornell and the Selling Cornell
Affiliates, respectively, in the Premises pursuant to the
Conveyance Documents be construed as a sale by each of Cornell
and the Selling Cornell Affiliates to MCF. It is, further, not
the intention of the parties that such conveyance, transfer
and assignment be deemed a mortgage or pledge of such Premises
by Cornell or any Selling Cornell Affiliate to MCF, or any
assignee of MCF, including but not limited to the Trustee on
behalf of the Bondholders, to secure a debt or other
obligation of Cornell or any Selling Cornell Affiliate.
Nevertheless, if, notwithstanding the intent of the parties,
the Premises are held to be property owned by any of Cornell
or the Selling Cornell Affiliates, then (i) this Agreement
shall also be deemed to be and shall be a security agreement
within the meaning of the Uniform Commercial Code of any
applicable state and, when combined with the Conveyance
Documents, that certain Master Lease Agreement (the "LEASE")
dated August 14, 2001 between MCF as Landlord and Cornell as
Tenant, as amended, modified or supplemented from time to
time, and the Memoranda of Lease filed in connection
therewith, shall collectively be deemed to be and shall
constitute a mortgage within the meaning of the real property
laws of any applicable state; (ii) the conveyance, transfer
and assignment provided for in the Conveyance Documents shall
be deemed to be and shall be a grant by each of Cornell and
the Selling Cornell Affiliates to MCF of a security interest
in, and, when combined with the Lease and the Memoranda of
Lease, a mortgage of, all right, title and interest of each of
Cornell and the Selling Cornell Affiliates, respectively, in
and to the Premises and all proceeds of the conversion,
voluntary
6
or involuntary, of the foregoing into cash, instruments,
securities or other property; (iii) the possession by MCF or
its agents or bailees (including the Trustee) of such items of
property, if any, as constitute instruments, money,
certificated securities or chattel paper shall be deemed to be
and shall be "possession by the secured party" for purposes of
perfecting the security interest pursuant to the Uniform
Commercial Code of any applicable state; (iv) notifications to
persons holding such property, and acknowledgments, receipts
or confirmations from, such persons as bailees or agents (as
applicable) of MCF or the Trustee shall be deemed to be and
shall be on behalf of the MCF as secured party for the purpose
of perfecting such security interest under applicable state
law; and (v) the Indenture shall be deemed to and shall
evidence an assignment to the Trustee for the benefit of the
Bondholders of all of MCF's mortgages on and security
interests in the Premises. Cornell, the Selling Cornell
Affiliates and MCF shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure
that, if this Agreement, together with the Conveyance
Documents, the Lease and the Memoranda of Lease, is deemed to
create a security interest in and mortgage of the Premises,
such security interest and mortgage shall be a perfected
security interest and mortgage under applicable state law
effective as of the Closing Date and will be maintained as
such throughout the remaining term of this Agreement and the
Indenture.
(c) Cornell and the Selling Cornell Affiliates each hereby
covenant that, except for the conveyances pursuant hereto and
pursuant to the Conveyance Documents, neither Cornell nor any
Selling Cornell Affiliate will sell, mortgage, pledge, assign
or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any lien, security interest or
security deed on its respective right, title and interest in
and to the Premises or any interest therein; and Cornell and
the Selling Cornell Affiliates each shall defend the right,
title and interest of MCF in and to its respective interest in
and to the Premises against all claims of third parties
claiming by, through or under any of Cornell or the Selling
Cornell Affiliates.
(d) It is also the express intent of the parties hereto that MCF,
as absolute owner of the Premises and Issuer of the Bonds, is
the absolute owner of the Bond Fund, the Debt Service Reserve
Fund, the Security Deposit Fund, the Renewal Fund and any
other fund or account established from time to time pursuant
to the terms of the Indenture (collectively, the "INDENTURE
TRUST FUNDS"). It is, further, not the intention of the
parties that any of the Indenture Trust Funds be deemed to be
owned by Cornell or any Selling Cornell Affiliate or pledged
by Cornell or any Selling Cornell Affiliate to MCF, or any
assignee of MCF, including but not limited to the Trustee on
behalf of the Bondholders, to secure a debt or other
obligation of Cornell or any Selling Cornell Affiliate.
Nevertheless, if, notwithstanding the intent of the parties,
the Indenture Trust Funds (or any cash or Eligible Investments
credited thereto) are held to be property owned by Cornell or
any Selling Cornell Affiliate, then (i) Cornell and the
Selling Cornell Affiliate each hereby grants to MCF a security
interest in all of its respective right, title and interest,
if any, in and to (1) each of the Indenture Trust Funds, all
amounts
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credited to such Indenture Trust Funds pursuant to the
applicable provisions of the Indenture and all investment of
such amounts pursuant to the applicable provisions of the
Indenture, including all Eligible Investments, securities,
financial assets (as defined in Section 8-102(a)(9) of the
Uniform Commercial Code of any applicable state) and
securities entitlements (within the meaning of Section
8-102(a)(17) of the Uniform Commercial Code of any applicable
state and, with respect to Book-Entry Securities, in the
applicable Federal Book-Entry Regulations) carried in or
credited to such Indenture Trust Funds; (2) rights in, to and
under this Agreement, the Reserve Fund Agreement and the Debt
Service Deposit Agreement; and (3) all Proceeds of the
conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including,
without limitation, all amounts from time to time held in or
credited to the Indenture Trust Funds, whether in the form of
cash or invested in instruments, securities or other property,
including "investment property" (as such term is defined in
Section 9-102(a)(49) of the Uniform Commercial Code of any
applicable state), (ii) the Indenture shall be deemed to and
shall evidence an assignment by MCF to the Trustee for the
benefit of the Bondholders of all of MCF's security interest
in the property described in the preceding clause (i) and
(iii) in such event but only in such event the Securities
Intermediary would recognize any of Cornell or the Selling
Cornell Affiliate as the owner of its respective interest
therein upon payment in full of the Bonds and receipt of an
entitlement order to such effect from the Trustee as
entitlement holder.
Section 5. REPRESENTATIONS AND WARRANTIES. Cornell and the
Selling Cornell Affiliates each hereby represents and warrants to MCF, as of the
Closing Date, that:
(a) DUE ORGANIZATION; EXISTENCE. It is duly organized and validly
existing under the laws of the State of Delaware, and has full
power, authority and legal right to own its properties and
conduct its business as such properties are presently owned
and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and
the transactions contemplated under this Agreement.
(b) DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement by Cornell and the Selling Cornell Affiliates
and the consummation of the transactions provided for in this
Agreement and the Conveyance Documents have been duly
authorized by Cornell and the Selling Cornell Affiliates by
all necessary corporate or partnership action on the part of
Cornell and the respective Selling Cornell Affiliates.
(c) NO CONFLICT. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof will not conflict
with, violate, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse
of time or both) a default under, any organizational or
governing documents or law, treaty, rule or regulation
applicable to Cornell or the Selling Cornell Affiliates or any
indenture, lease, contract, agreement, mortgage, deed of trust
or other instrument to which
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Cornell or any of the Selling Cornell Affiliates is a party or
by which it or any of its properties are bound, including
without limitation the Big Spring Sublease, the ▇▇▇▇▇▇
Sublease or any Correctional and Detention Facility Contract.
(d) NO ADVERSE ACTIONS. Except as disclosed in the Offering
Memorandum used in the offering of the Bonds, there are no
proceedings or investigations, pending or, to the best
knowledge of Cornell and each Selling Cornell Affiliate,
threatened against Cornell or the Selling Cornell Affiliates,
respectively, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the
Conveyance Documents, (iii) seeking a determination or ruling
that, in the reasonable judgment of Cornell or such Selling
Cornell Affiliate, would materially and adversely affect the
performance by Cornell or such Selling Cornell Affiliate of
its obligations under this Agreement, or (iv) seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(e) ALL APPROVALS. All material permits, consents, certificates,
approvals or licenses necessary for the execution and delivery
by Cornell and each Selling Cornell Affiliate of this
Agreement, the performance by Cornell and each Selling Cornell
Affiliate of the transactions contemplated by this Agreement
and the fulfillment by Cornell and each Selling Cornell
Affiliate of the terms hereof required to be obtained have
been obtained.
(f) BINDING OBLIGATION. This Agreement has been duly executed and
delivered by Cornell and each Selling Cornell Affiliate and,
assuming the due authorization, execution and delivery of this
Agreement by the other party hereto, constitutes a legal,
valid and binding obligation of Cornell and each Selling
Cornell Affiliate, respectively, enforceable against Cornell
and each Selling Cornell Affiliate, respectively, in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of
creditors' rights and except as such enforceability may be
limited by general principles of equity (whether considered in
a suit at law or in equity);
(g) VALID TRANSFER. If, despite the intent of the parties hereto,
a court of competent jurisdiction shall determine that the
transfers pursuant to the Conveyance Documents did not
constitute valid transfers and assignments of all right, title
and interest of Cornell and the Selling Cornell Affiliates,
respectively, in the Premises, this Agreement, when combined
with the Conveyance Documents, the Lease and the Memoranda of
Lease filed in connection therewith, shall constitute a grant
to MCF of a first priority perfected lien and mortgage upon
and security interest in and a pledge and assignment of all of
Cornell's and the Selling Cornell Affiliates' right, title and
interest in and to the Premises, respectively.
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(h) ZONING. The use and operation of the Premises by Cornell and
the Selling Cornell Affiliates, respectively, comply with all
applicable zoning laws and ordinances.
(i) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in this Section 5
shall survive the transfer, assignment and delivery of and
payment for the Premises pursuant to the Conveyance Documents.
Section 6. DOCUMENTATION OF TRANSFERS. Cornell, the Selling
Cornell Affiliates and MCF shall indicate clearly and unambiguously in all
audited and unaudited financial statements, all public filings, all internal
computer files and all other relevant records that the Premises have been sold
by Cornell and the Selling Cornell Affiliates, respectively, to MCF.
Section 7. FURTHER ASSURANCES. Cornell, the Selling Cornell
Affiliates and MCF agree to do and perform, from time to time, any and all acts
and to execute any and all further instruments required or reasonably requested
by the Trustee more fully to effectuate the purposes of this Agreement,
including, without limitation, the recordation of this Agreement in the real
property records of any applicable jurisdiction and the execution of any
mortgages, deeds of trust, security deeds, financing statements or continuation
statements relating to the Premises for filing under the provisions of the
Uniform Commercial Code as in effect in any applicable jurisdiction, as is
necessary to create, preserve and protect the first priority liens and security
interests described herein.
Section 8. NOTICES. All demands, notices and communications
hereunder shall be in writing (including telecopy) and shall be deemed to have
been duly given upon receipt, if delivered by hand or mailed certified mail,
return receipt requested, addressed as follows: (a) in the case of MCF, to
Municipal Corrections Finance, L.P., in care of Municipal Corrections Finance
Holdings, LLC, as Administrator, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (Telecopy: 225-766-3988); and (b) in the case of Cornell and the Selling
Cornell Affiliates, to ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Telecopy: 713-335-9290) or, as to each such party,
at such other address as shall be designated by such party in a written notice
to each other party.
Section 9. ENTIRE AGREEMENT. If and only if the Conveyance
Documents are disregarded, then and in that event, this Agreement shall
supersede any and all other agreements, either oral or in writing, between the
parties with respect to the subject matter hereof, other than the Conveyance
Documents, the Lease, the Memoranda of Lease and related Title Policies. This
Agreement may not be later modified except by a further writing signed by
Cornell, each Selling Cornell Affiliate, MCF and the Trustee, and no term of
this Agreement may be waived except in writing by the party waiving the benefit
of such term, with the prior written consent of the Trustee.
Section 10. SEVERABILITY; HEADINGS. If any portion of this
Agreement is held invalid or inoperative, the other portions of this Agreement
shall be deemed valid and operative, and so far as is reasonable and possible,
effect shall be given to the intent manifested by the portion so held to be
invalid or inoperative. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof. The
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headings herein are for reference purposes only and are not intended in any way
to describe, interpret, define or limit the extent or intent of this Agreement
or of any part hereof.
Section 11. ASSIGNMENT. Cornell and the Selling Cornell
Affiliates acknowledge that MCF will assign all its rights hereunder to the
Trustee pursuant to the Indenture. Cornell and the Selling Cornell Affiliates
agree that, upon execution of the Indenture, the Trustee will have all such
rights and remedies provided to MCF hereunder. This Agreement is not otherwise
assignable without the express written consent of the non-assigning party;
provided, however, that any person into which Cornell or any of the Selling
Cornell Affiliates may be merged or consolidated or any Person resulting from a
merger or consolidation involving Cornell or any of the Selling Cornell
Affiliates or any Person succeeding to the business of Cornell or such Selling
Cornell Affiliate shall be considered the successor of Cornell or such Selling
Cornell Affiliate hereunder, without the further act or consent of either party.
Section 12. NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of Cornell, the Selling Cornell
Affiliates or MCF, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 13. COUNTERPARTS. This Agreement may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
Section 14. THIRD PARTY BENEFICIARIES. This Agreement
(including, without limitation, all representations, warranties and covenants)
will inure to the benefit of and be binding upon the parties hereto, and, in
addition, shall inure to the benefit of the Trustee on behalf of the
Bondholders, and its respective successors and permitted assigns. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
Section 15. NO PETITION. Cornell and the Selling Cornell
Affiliates each hereby covenants and agrees that it will not, prior to the date
that is one year and one day after the payment in full of all Outstanding Bonds,
institute against, or join with any other Person in instituting against, MCF or
its general partner, Municipal Corrections Finance Holdings, LLC, a Delaware
limited liability company and its successors and assigns in such office, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or State bankruptcy or
similar law. This Section 15 shall survive the termination of this Agreement.
Section 16. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas; provided,
however, provisions hereof granting or deemed to be grants of a mortgage or lien
on real property shall be governed by and construed in accordance with the laws
of the state in which such real property is located.
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Section 17. ALLOCATION OF ACQUISITION PRICE. For federal income
tax purposes, Cornell, the Selling Cornell Affiliates and MCF agree to allocate
the Total Acquisition Price among the Premises (and then among the assets
acquired with respect to the portion of the total Acquisition Price allocated to
each of the Premises) on EXHIBIT B attached hereto and incorporated herein for
all purposes. Cornell, the Selling Cornell Affiliates and MCF agree that this
allocation shall be used by them in reporting the sale by Cornell and the
Selling Cornell Affiliates to MCF on all their respective tax returns, and if
applicable, Cornell, the Selling Cornell Affiliates and MCF shall timely file
IRS Form 8594 with respect to such allocation, and neither Cornell, the Selling
Cornell Affiliates nor MCF shall take a tax return position inconsistent with
such allocation unless such inconsistent position shall arise out of or through
an audit, administrative or adjudicatory proceeding by or with the IRS or other
taxing authority.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
date first above written.
CORNELL COMPANIES, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board of Directors
and Chief Executive Officer
CORNELL CORRECTIONS OF GEORGIA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: CCG I Corporation, a Delaware corporation,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Asst. Secretary
CORNELL CORRECTION OF OKLAHOMA, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Asst. Secretary
CORNELL CORRECTIONS OF TEXAS, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Asst. Secretary
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WBP LEASING, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Asst. Secretary
MUNICIPAL CORRECTIONS FINANCE, L.P., A DELAWARE
LIMITED PARTNERSHIP
By: Municipal Corrections Finance Holdings, LLC,
a Delaware limited liability company, its
General Partner
By: Provident Foundation Inc., a Georgia
nonprofit corporation, its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
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